Dean, Roger Dale v. State ( 2002 )

Opinion issued September 26, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00443-CR

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ROGER DALE DEAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 852518

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O P I N I O N

A jury found appellant guilty of capital murder and assessed punishment at life in prison. We affirm.

Facts  

On July 28, 2000, appellant and Justin Lindsay, appellant's accomplice, planned to steal two kilograms of heroin during the robbery of a home. Because their plan became unfeasible, appellant and Lindsay decided to rob a different home of $30,000 cash and Ecstacy. Another accomplice, Will Henry, told appellant and Lindsay they would need guns for this robbery because the occupants of the house to be robbed had guns all over their home. During the planning of the robbery, Amber Martin, appellant's girlfriend, overheard appellant talking about "killing them all," when referring to the robbery. Because Lindsay had a sawed-off shotgun, and appellant had only a knife, Lindsay, Will Henry, and appellant acquired a revolver for appellant to use during the robbery.

Lindsay, Henry, and appellant arrived at the location of the robbery. While Henry waited in the car, appellant, armed with a revolver and knife, and Lindsay, armed with a sawed-off shotgun, approached the home of the robbery and knocked on the door. Lindsey Haenal, an occupant of the house, opened the door, and appellant and Lindsay entered. Appellant put his gun in Haenal's face and demanded to know where the safe was located. When Haenal told the intruders she did not know of any safe in the house, Lindsay taped Haenal's mouth, wrists, and ankles, while appellant went upstairs to search for money and drugs.

When appellant reached the top of the stairs, he encountered Kevin Vaughn, who had passed out on a bed. Haenal and Lindsay both heard some mumbling from upstairs and also heard a gunshot. Additionally, they both heard another gunshot some 12 to 20 seconds after the first. After the second gunshot, appellant went downstairs and told Lindsay he could not find any money or drugs. Appellant and Lindsay then left the house. Later on that evening, appellant returned home and told his girlfriend he had shot Vaughn twice and stolen his money.

Houston Police Officer Dieterle arrived at the scene and found Vaughn lying face down, dead. Officer Wood, a homicide investigator with the Houston Police Department, testified that the bullet was fired from a revolver. Dr. Shrode, an Assistant County Medical Examiner who performed an autopsy on Vaughn, determined that his cause of death was a gunshot wound to the face. Officer Lambright, a Houston Police Department crime-scene investigator, testified there were no signs of a struggle for the revolver. He further testified that if Vaughn had grabbed the revolver, there would have been evidence of burning, soot, or charring on the victim, but there was no such evidence.

Voir Dire

In his first and second points of error, appellant claims the trial court violated his constitutional rights to due process and his Texas statutory rights by allowing voir dire of a venire person outside the presence of appellant.

Appellant was temporarily out of the courtroom during a portion of the voir dire of one venire person. The following exchange took place after appellant returned:

THE COURT: I just want to get this clear on the record because it may not have been on the record that there was some reference that the Defendant might have been out of the courtroom during the last interchange with the juror. I just want to make sure that's clear that that was done at Defense counsel's request and after consultation with Defense counsel and his client; is that correct?

DEFENSE COUNSEL: Yes, Your Honor, and he agreed to waive that brief examination.

THE COURT: And that was your agreement?

DEFENSE COUNSEL: Yes, Your Honor.

APPELLANT: Yes, Your Honor.

Appellant was not present during a portion of the venire person's voir dire because appellant's counsel and appellant requested that appellant be excused from the courtroom for that portion of the trial. Appellant now claims that granting his request was error. The law of invited error estops a party from asserting error based on an action that party induced. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999); Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987). Here, appellant induced the error he complains of, namely, being outside the courtroom during voir dire. Accordingly, we need not address whether conducting voir dire outside the appellant's presence violated his constitutional or statutory rights. Because he complains about a situation he voluntarily created, appellant has waived any error. ⁽¹⁾

We overrule appellant's first and second points of error.

  Opening Statement

In his third point of error, appellant claims the trial court erred by not allowing him to complete his opening statement. We review the trial court's decision for abuse of discretion. See Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. 1978).

If timely requested, denying defendant an opening statement is a denial of a valuable right and may constitute error. See Moore v. State, 868 S.W.2d 787, 788 (Tex. Crim. App. 1993). However, "the character and extent of such statement are subject to the control of the trial court." McBride v. State, 7 S.W.2d 1091, 1094 (Tex. Crim. App. 1928). The trial court has discretion to limit the statement to its proper scope and ensure that the opening statement is not used to comment on improper or inadmissible facts. See Dugan v. State, 199 S.W. 616, 617 (Tex. Crim. App. 1917).

During his opening statement, appellant's counsel commented on appellant's confession. The State lodged a hearsay objection, arguing that any comments appellant made were inadmissible hearsay. Appellant's counsel claimed appellant's comments to the police were admissible because they would be a part of the State's evidence against appellant. The State responded that it had not referred to appellant's confession in its opening and did not intend to mention appellant's confession. The trial court sustained appellant's objection and offered appellant the opportunity to make an additional opening before his case-in-chief if the State mentioned the confession during its case.

Because the State did not use appellant's confession during its case-in-chief and did not mention the confession during its opening statement, and because the trial court would have allowed the defense to make another opening statement after the State rested had the State introduced appellant's statement during its case-in-chief, we hold that the trial court did not abuse its discretion by limiting appellant's opening statement.

We overrule appellant's third point of error.

Disabled Juror

In his fourth point of error, appellant contends the trial court abused its discretion by not finding a juror disabled and by refusing to requestion the juror after the trial court temporarily postponed the trial. We review the trial court's decision for abuse of discretion. See Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999).

Article 36.29 of the Texas Code of Criminal Procedure provides, that if, ". . . a juror dies or becomes disabled . . . that juror could be replaced by [an] alternate." Tex. Code. Crim. Proc. art. 36.29(b) (Vernon Supp. 2002). The term "disabled" means any condition that inhibits the juror from fully and fairly performing the functions of a juror. Bass v. State, 622 S.W.2d 101, 106 (Tex. Crim. App. 1981) (citing Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972)). The condition may result from physical illness, mental condition, or emotional state. See Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000).

During trial, Juror Schurtz telephoned the trial court to explain that he had been involved in an altercation and was seeking medical attention. That same afternoon, Juror Schurtz appeared in court and was questioned by the court. Juror Schurtz was asked numerous questions regarding: (1) whether the police were called to handle the disturbance; (2) how the juror was feeling physically; and (3) how the juror was feeling emotionally.

Juror Schurtz responded with the following: (1) the police were not called during or after the disturbance; (2) he had some lacerations and had seen a doctor that morning for treatment; and (3) the altercation would affect his ability to focus and pay attention for the day. Juror Schurtz stated he would, however, be able to pay attention and would fairly and impartially perform his functions as a juror the next morning. In consideration of Juror Schurtz's answers, the trial court postponed the trial for the day to allow Juror Schurtz to return home and rest for the remainder of the afternoon and evening. Based on these circumstances, we hold that the trial court did not abuse its discretion in finding that Juror Schurtz was not inhibited from fully and fairly performing the functions of a juror and therefore was not disabled. See Bass, 622 S.W.2d at 106. We further hold that the trial court did not abuse its discretion by denying appellant's request to requestion Juror Schurtz when he returned the next morning. In response to appellant's request, the court indicated that, unless Juror Schurtz came forward to either the court or the bailiff with additional information, he would not be requestioned about the incident. Because the juror had previously indicated he would be able to participate fully the next day, the trial court's decision was correct.

We overrule appellant's fourth point of error.

  Legal and Factual Sufficiency

In his fifth and sixth points of error, appellant contends the evidence was both legally and factually insufficient to prove that he intentionally murdered Kevin Vaughn.

A person commits capital murder if he intentionally or knowingly causes the death of an individual and intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation. Tex. Pen. Code Ann. §§ 19.02(b)(1), .03(a)(2) (Vernon 1994).

In reviewing legal sufficiency, we view the evidence in a light most favorable to the verdict, and ask whether a rational trier-of-fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). In reviewing factual sufficiency, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Valencia, 51 S.W.3d at 423. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. King, 29 S.W.3d at 563. The reviewing court should not intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Appellant's intent may be inferred from his acts, words, and conduct. See Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980). Evidence of an intent to murder may be proved by circumstantial evidence. Smith v. State, 56 S.W.3d 739, 745 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd.). The jury may infer appellant's intent to kill from his use of a deadly weapon. See Mercado v. State, 718 S.W.2d 291, 295 (Tex. Crim. App. 1986). A pistol is a deadly weapon per se that presumes an intent to kill. Williams v. State, 567 S.W.2d 507, 509 (Tex. Crim. App. 1978).

After hearing all the evidence in this case, the jury could reasonably have found the following: (1) appellant planned to break into a home and steal $30,000 cash and Ecstacy during the robbery; (2) appellant told an accomplice "he would go in and kill them all," referring to prospective victims of the robbery; (3) appellant procured a revolver to use in the robbery; (4) appellant had a revolver and a knife on his person before entering the house; (5) appellant rushed into the home with his gun pointed at Haenal's face; (6) appellant went upstairs and found Vaughn; (7) appellant fired two shots within 20 seconds; (8) Vaughn died of a gunshot wound; (9) appellant later told his girlfriend he shot Vaughn twice and took his money; and (10) there was no evidence that the revolver was fired during a struggle between appellant and Vaughn. We hold that the evidence is legally sufficient to show that appellant intentionally or knowingly caused the death of Vaughn.

Appellant's factual sufficiency challenge relies on the following: (1) there were no eyewitnesses to the murder; (2) there was no clear, auditory expression of intent to kill by appellant; (3) appellant claimed he was joking when he stated that, "he would kill them all" and (4) one of the two bullets struck the wall six feet off the ground. As stated above, intent to kill may be inferred from appellant's acts, words, and conduct. See Beltran, 593 S.W.2d at 689. Furthermore, the jury was entitled to infer intent to kill from appellant's use of a deadly weapon. See Mercado, 718 S.W.2d at 295. We hold the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

We overrule appellant's fifth and sixth points of error.

Conclusion

We affirm the judgment of the trial court.  

Elsa Alcala

Justice

Panel consists of Justices Taft, Alcala, and Price. ⁽²⁾

Do Not Publish. Tex. R. App. P. 47.

1. We note that appellant's counsel on appeal, Danny Easterling, also represented appellant at trial.

2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.