Francisco Degadillo A/K/A Franciso Delgadillo v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-183-CR
FRANCISCO DEGADILLO APPELLANT
A/K/A FRANCISCO DELGADILLO
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two issues, Appellant Francisco Degadillo a/k/a Francisco Delgadillo
appeals his conviction for burglary of a habitation.2 We affirm.
1
… See T EX. R. A PP. P. 47.4.
2
… See T EX. P ENAL C ODE A NN. § 30.02(a) (Vernon 2003).
II. Factual and Procedural History
Degadillo and Filiberto Gorostieta shared a house in Fort Worth for several
months in 2005. About 1:00 a.m. on December 2, 2005, two weeks after
Degadillo had moved out of the house, two men broke into the house. Filiberto
identified one of the men as Degadillo. According to Filiberto, Degadillo had a
baseball bat. The two men told Filiberto that they would kill him if he did not
give them money. Filiberto gave the men his wallet, and they left.
A jury found Degadillo guilty of burglary of a habitation, and the trial court
sentenced him to prison for ten years and one day. This appeal followed.
III. Jury Selection
In his first issue, Degadillo claims that the trial court erred because after
the jury panel was dismissed and the jurors were sworn in, the court
substituted a juror who had previously been dismissed for a disqualified juror.
Degadillo concedes that he requested and complied with this procedure, but he
suggests that the procedure was “fundamental, jurisdictional error that could
not be waived, even with [the] consent of [Degadillo].” The State alternatively
argues that Degadillo is estopped from complaining about the trial court’s
actions by the “invited error” doctrine, that Degadillo did not preserve error, or
that any error was harmless.
2
A. Standard of Review
The doctrine of “invited error,” as distinguished from a waiver of error,
is a type of estoppel. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1102 (2000). This doctrine estops a party from
making an appellate error of an action that it induced. Id. As the Texas Court
of Criminal Appeals has explained,
Waiver might usefully be distinguished from what is sometimes
called ‘invited error.’ If a party affirmatively seeks action by the
trial court, that party cannot later contend that the action was
error. This is not really a waiver of error previously committed.
Rather, it is part of the definition of what can constitute error, and
quite reasonably defines error of which a party may complain as
excluding those actions of the trial court actually sought by the
party in that tribunal.
Id. In Prystash, the court applied the doctrine to a jury charge error at the
punishment stage of a capital murder case. Id. at 529–32.
In another decision, the Texas Court of Criminal Appeals applied the
doctrine to a case with some similarities to the case before us today. Jones v.
State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003), cert. denied, 542 U.S.
905 (2004). There, the appellant argued that the trial court’s discharge of a
juror was inappropriate under the Texas Code of Criminal Procedure. Id. The
court noted that even though the appellant had argued to the trial court that
discharge would be inappropriate, he nevertheless proposed discharge as an
3
alternative to mistrial at least three times. Id. Thus, the court concluded that
because the appellant had requested the discharge as an alternative to mistrial,
he was estopped from complaining about it on appeal. Id.
Finally, in another case, the Texas Court of Criminal Appeals applied the
doctrine to an error that the appellant claimed was fundamental. Druery v.
State, 225 S.W.3d 491, 505–06 (Tex. Crim. App.), cert. denied, 128 S. Ct.
627 (2007). There, the appellant, who was convicted of capital murder,
complained that the trial court should have instructed the jury on the lesser
included offense of first-degree murder and that the failure to include such an
instruction was “fundamental error.” Id. at 505. The court first observed the
general rule that if there was no proper objection to an alleged jury charge error,
then the appellant must claim that the alleged error was fundamental, and he
can obtain a reversal only if there was “egregious harm.” Id. The court then
noted, however, the doctrine of invited error. Id. at 505–06. Thus, because
the appellant, through his attorney, had “affirmatively requested” that the
instruction on the lesser included offense not be given, he was estopped on
appeal from claiming that it was error. Id. at 506. Therefore, the court did not
address whether the failure to give the instruction on the lesser included
offense was error or had “egregious[ly] harm[ed]” the appellant. Id.
4
The doctrine of invited error has been previously applied by this court.3
In one case, we applied it to an illegal sentence for which the defendant had
entered into a plea bargain with the State. Ex parte Shoe, 137 S.W.3d 100,
101–03 (Tex. App.—Fort Worth 2004), pet. dism’d, 235 S.W.3d 782 (Tex.
Crim. App. 2007). Because the defendant had requested the sentence and
accepted the benefit of not having a fine assessed against him, we held that he
was “estopped from challenging the illegal sentence because he accepted the
benefits of it.” Id. at 102–03.
3
… Other courts of appeals have applied the doctrine to a variety of
situations in the last few years. See, e.g., Schultz v. State, No. 04-07-00035-
CR, 2008 WL 182877, at *2 (Tex. App.—San Antonio Jan. 23, 2008, no pet.)
(applying the doctrine to a defendant’s agreement to a ten-year felony sentence
in exchange for the State’s agreement not to refile two misdemeanor cases as
felonies); Morales v. State, 222 S.W .3d 134, 143–44 (Tex. App.—Corpus
Christi 2006, no pet.) (applying the doctrine to a defendant’s failure to request
that a child witness be interviewed via closed-circuit television at the time of
trial); Russell v. State, 146 S.W.3d 705, 715–16 (Tex. App.—Texarkana 2004,
no pet.) (applying the doctrine to a trial court’s denial of a mistrial based on a
juror’s response to a question by defense counsel); Orona v. State, 52 S.W.3d
242, 248–50 (Tex. App.—El Paso 2001, no pet.) (applying the doctrine to the
trial court’s failure to include prior convictions in the application paragraph of
the jury charge because the defendant invited the error through objections to
the introduction of the stipulation before the jury and any mention of the prior
convictions in the jury charge); Hirad v. State, 14 S.W.3d 351, 351–52 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (applying the doctrine to a
defendant’s request for a specific issue in a jury charge).
5
In another case, the defendant filed a motion to recuse the trial judge in
his case because the same trial judge had signed the arrest and search warrants
for the defendant and had subsequently determined the existence of probable
cause. Franks v. State, 90 S.W.3d 771, 779 (Tex. App.—Fort Worth 2002,
no pet.). Judge Gill testified at the recusal hearing, and the judge who presided
over the hearing denied the defendant’s motion to recuse. Id. at 779–80. The
defendant subsequently moved for Judge Gill to reconsider his ruling on a
previous suppression motion and called Judge Gill to testify at the hearing on
the defendant’s motion. Id. at 780. When Judge Gill refused to do so, the
defendant introduced into evidence Judge Gill’s testimony from the recusal
hearing. Id. On appeal, the defendant argued, based on the introduction of
Judge Gill’s testimony into evidence, that his conviction was void because a
judge who presides over a proceeding is prohibited from being a witness in that
proceeding. Id. at 780–81. We held that the defendant was estopped from
complaining on appeal about the admission of testimony that he had requested,
and we observed that the doctrine of invited error applies “whether or not the
error is perceived to be fundamental.” Id. at 781–82.4
4
… In an unpublished decision from this court, an appellant complained
that his Sixth Amendment right to confrontation and cross-examination had
been violated because the trial court had considered a presentence investigation
report, which he had requested, during the sentencing phase of his trial.
6
B. Analysis
After the State, Degadillo, and the trial court had asked questions of the
veniremembers and made final selections, the trial court announced the twelve
jurors and excused the panel from the courtroom. The trial court then briefly
spoke to the jurors and excused them for the day. As the jurors exited the
courtroom, one of them told the trial court that his religion would not let him
find someone guilty of a crime.
After the trial court and Degadillo’s attorney questioned the juror at some
length, the trial court told the State and the defense that he could get another
veniremember back, if they wanted her on the jury. Degadillo’s attorney stated,
“I’d rather have 12,” and the State replied, “I got no problem with that.” The
veniremember was brought to the bench, and after she agreed to be on the
jury, the trial court swore her in.
The trial court then discussed with counsel what had happened. He
stated that it was his “legal position that [the original veniremember] is not
legally qualified to serve under 35.16. Does anyone have any argument with
Hamlin v. State, Nos. 02-04-00240-CR, 02-04-00241-CR, 02-04-00242-CR,
2005 W L 3436523, at *1 (Tex. App.—Fort Worth Dec. 15, 2005, no pet.)
(mem. op.) (not designated for publication). We rejected the defendant’s
argument for several reasons, including the doctrine of “invited error.” Id.
7
that as a matter of law?” Degadillo’s attorney answered, “No, Judge,” and the
State answered, “State does not.” The following exchange then took place:
[Trial Court:] For legal purposes, I’ve brought in—I’ve excused
Juror 13 because I had brought back Juror 38 who would have
been No. 12, the next in order. . . . And I’ve been requested by the
parties to swear her and proceed with a jury of 12 if the law
allows. Is that correct, State?
[State:] Yes.
[Trial Court:] Is that correct, Defense?
[Defense:] Yes, Your Honor.
[Trial Court:] And both sides are specifically requesting to have her
sworn belatedly, and I’ll reswear the whole panel in the morning
before any testimony.
[State:] That’s fine.
[Trial Court:] And the parties are requesting that I do that. Is that
correct, State?
[State:] State is.
[Defense:] That’s fine, Your Honor.
[Trial Court:] And, Defense, I assume the parties are objecting to
going forward with just 11 since 12 came back so promptly and
thinks it’s going to be fixed by just swearing the panel again since
there’s been no testimony or evidence and I didn’t even read the
blue card. Is that the position of the State for now?
[State:] Yes, for now, yes.
[Trial Court:] And the Defense?
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[Defense:] Yes.
[Trial Court:] And both sides understand if we go on with 12, it is
my considered opinion that any Court with a conscience and that
follows the spirit of the law would say if you wanted to complain,
you should have complained before the 12th juror . . . was placed
on the panel or you would be forever barred from doing so since it
was done at your request. Is that the way you would interpret the
law, [State]?
[State:] Yes.
[Trial Court:] Defense?
[Defense:] I think so, Your Honor. The one thing I would like to do
with No. 12 in the morning is maybe ask her a question or two if
she discussed the case or anything after she left before she took
the oath.
[Trial Court:] Are they still back there?
[Defense:] Yes.
[Trial Court:] Let’s do it now. I need her right back out here real
quick. [Emphasis added.]
The trial court then had the juror brought back into the courtroom and asked her
some questions about whether she had heard or discussed anything about the
case after the court had excused the panel; the juror said that she had not.
The next day, the following exchange took place:
[Trial Court:] At the close of proceedings yesterday, we had the
unusual event where a juror, or a chosen juror, instead of go[ing]
from the jury box to the jury room with his 11 companions walked
straight up to the bench and states a legal disqualification from
service. That record is pretty clear, and it doesn’t need to be
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re-invented at this time. And the parties did state they were in
agreement the juror was not qualified, and was disqualified, to
serve.
Had the trial commenced, there are cases that say[] a major
disqualification can be a disability from service in the same manner
as a medical condition or any other matter that happens. State’s
agreed to proceed with 12. The Defense has requested to go on
with 12. And at their request, I summoned the next juror in line
who would have served according to the clerk’s list after strikes
were made and Juror 38 came up to replace Juror 13. And the
State said they did not object to the procedure. The Defense said
they specifically didn't object to the procedure and objected to
going on with 11 at this point in the proceedings because as it
was, in their opinion, it was not required. And everyone has
agreed or requested to plug Juror 38 into the hole created by the
disability or disqualification of Juror 13. The only person I didn’t
ask if they’re okay with this was the Defendant.
And since it is your trial, Mr. Delgadillo, do you request to go
forward with 12 and have that other juror plugged in to fill the gap
made by Juror 13?
[Defendant:] Yes, sir.
[Trial Court:] And you agreed and asked me to follow your
lawyer's request to proceed with 12 instead of just go on with 11;
is that correct?
[Defendant:] Yes, sir.
[Trial Court:] I did some research over the evening, and I had a
little bit of concern of the legal benchmark that’s used for jeopardy
purposes about the jury being sworn in a jury trial is when jeopardy
attaches versus the first witness testifies in a bench trial. And I
got so wrapped up in jeopardy law I didn’t look at general law.
And general law states the order of trial in Article 36.01 of the
Code of Criminal Procedure. And 36.01, which states the order of
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trial, says a trial shall proceed in the following order: Number one,
the indictment or information shall be read; number two, pleas are
entered. Even though the jury was sworn, and I do believe as a
matter of constitutional law means jeopardy is attached, the trial
hadn’t started. Parties haven’t announced ready after the jury was
impaneled, the indictment hadn’t been read, no pleas had been
entered. So the Court’s opinion under 36.01, the trial actually
hadn’t started, just the jury selection process is concluded. Both
sides comfortable with that interpretation for purposes of the
hearing today?
[Defense:] Yes, Your Honor.
[State:] Yes, for today, yes.
[Trial Court:] And 36.29, which talks about proceeding with 11
instead of 12. Says not less than 12 can render a verdict
concurred by each juror, signed by the foreman. But it says after
the trial of a felony case begins and then a juror becomes disabled
from sitting as determined by the judge or dies, then you can go on
with 11. But the Court’s position of 36.29, after the trial begins
means after the indictment is read and the plea is entered, looking
at 36.01.
So for our generic term of “trial begins,” that is a -- the trial begins
for the Court and the lawyers basically when you hear pretrials and
pick juries and do a lot of other things. But for statutory purposes
of 36.29, which talks about after the trial begins, if it didn’t
originally refer to the fact that after the jury has started working
and doing their jobs, it would be absurd to believe it could apply to
the earlier proceedings like voir dire because there wouldn’t be 12
people to have to lose one and go on with 11.
So the plain reading of the statute, in my opinion, means that the
trial has not begun for purposes of the number of jurors. Parties
have agreed, and the Defense has specifically requested, to replace
the other juror since the trial hasn’t begun and doesn’t believe the
Court is bound by the go-on-with-11 procedure. And with that
reading of the statute and based on the request of the Defendant,
11
I’m going to honor their request based on the literal reading of the
statute.
I will state, however, it is still my position, and I assume, Mr.
Henderson, it would be yours, that if it were to turn out the Court’s
judgment is interpreted as legally incorrect at some future date,
you and your client would be hard-pressed to complain about
getting a remedy that you asked for, fought for and turned out
were not legally entitled to. And I would expect this would be a
dead issue on appeal. Would that be your opinion?
[Defense:] Probably would be, Judge, but it wouldn’t permit -- if
there’s an appellate lawyer that wanted to take this appeal, I don’t
think it would keep them from trying to fight it.
[Trial Court:] And I guess that’s my point as well, but I guess my
point is, if there is a complaint, I consider this to be a waiver.
[Defense:] I think so, too, Your Honor.
[Trial Court:] And does your client understand that as well that --
Mr. Delgadillo, if some other lawyer wants to say, no, you should
have gone on with 11 or started over, my opinion, by saying I want
to go on now with the 12 people, some other court is not likely to
give you any relief because you asked to get this extra juror to
have 12 and you can’t complain later about having 12 instead of
11. They will say you can’t have your cake and eat it, too. You
can’t complain about things that you requested as opposed to
complaining about those that were forced upon you over your
objection. Do you understand what I’m saying?
[Defendant:] Yes, sir.
[Trial Court:] And so there is a risk to going on with 12, as you’ve
said, in case it turns out the law says we should have gone on with
11. You are getting an extra juror at your request who will have to
vote guilty before you can be convicted. So now 12 instead of 11
people will have to agree. So one more person will have to agree
before you can be convicted. Do you understand that?
12
[Defendant:] Yes, sir.
[Trial Court:] And you consider that an advantage such that, if
necessary, you will waive your right to complain about not having
11 people decide your fate. Do you understand that?
[Defendant:] Yes, sir.
[Trial Court:] And, Counsel, you concur with what I just told your
client as a matter of practical law?
[Defense:] Yes, sir. [Emphasis added.]
Despite the trial court’s discussion of waiver, and despite Degadillo’s
assertion that he “attempted to waive any complaint about a [twelfth] juror
after the first twelve . . . jurors had been seated and sworn and one of the
twelve sworn jurors was disqualified,” this is not a case of waiver; instead, it
is an obvious case of invited error. The emphasized portions of the exchanges
above make clear that both Degadillo and his attorney explicitly requested that
the trial court substitute the excused veniremember for the disqualified juror and
that they explicitly agreed with the trial court’s decision to do so. That is, since
Degadillo and his attorney actually requested the procedure for replacing the
disqualified juror, the doctrine of invited error estops Degadillo from now
complaining about the trial court’s actions, even if those actions were
“fundamental error.” See Prystash, 3 S.W.3d at 531; Druery, 225 S.W.3d at
505–06; Norton v. State, 116 Tex. Crim. 48, 50, 31 S.W.2d 1087, 1088
13
(1930) (noting that “[a] litigant on appeal or writ of error may not seek a
reversal for error which he himself has committed or invited, even though the
error is fundamental”); Franks, 90 S.W.3d at 781. We overrule Degadillo’s first
issue.
IV. Closing Argument
In his second issue, Degadillo argues that the trial court erred by
overruling his request that the State make an opening argument at the
conclusion of the guilt-innocence phase of the trial. At that phase of the trial,
after both sides rested, the trial court read the charge to the jury. The trial
court asked whether the State intended to open with a closing argument, and
the State said, “State will waive opening, reserve right to close.” The defense
requested that the State be required to make a “full opening statement” and
asserted that case law required it, though the defense could provide no
authority for that assertion. The trial court stated, “In the absence of authority
which mandates it, I’m going to allow them to waive opening.” The defense
then made its closing argument, and the State followed with its closing
argument.
A. Standard of Review
The code of criminal procedure provides that “[t]he order of [the]
argument may be regulated by the presiding judge; but the State’s counsel shall
14
have the right to make the concluding address to the jury.” T EX. C ODE C RIM.
P ROC. A NN . art. 36.07 (Vernon 2007). We reverse a trial court’s decision on
such matters only if there was an abuse of discretion. See, e.g., Threadgill v.
State, 146 S.W .3d 654, 673 (Tex. Crim. App. 2004) (holding that the trial
court did not abuse its discretion by denying the defendant’s request to close
arguments); Margraves v. State, 56 S.W.3d 673, 684 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) (holding that the trial court did not abuse its
discretion by allowing the State to waive its opening and by refusing to give the
defendant an opportunity to rebut the State’s closing remarks).
B. Analysis
Although Degadillo argues that the State should be required to make an
opening argument at the close of the guilt-innocence phase of trial, he
nevertheless concedes that “existing authority is against him on this issue.” He
is correct.
Margraves is directly on point. In that case, the defendant argued that
the trial court erred by allowing the State to reserve its entire closing argument
for rebuttal. 56 S.W.3d at 683. But the appellate court noted that “[t]here is
clearly nothing on the face of [art. 36.07] that requires the prosecution to open
closing argument” and also noted the similarity between the case before it and
15
an earlier decision from the Texas Court of Criminal Appeals. Id. at 683–84
(citing Norris v. State, 902 S.W.2d 428 (Tex. Crim. App.), cert. denied, 516
U.S. 890 (1995)).5 The court observed that, unlike the appellant in Norris, the
defendant had not offered a bill of exceptions, but the case was otherwise
“substantially similar” to Norris in that each defendant essentially contended
that the trial court’s denial of rebuttal rendered his trial “fundamentally unfair.”
Id. at 684. Thus, the court concluded that the trial court did not abuse its
discretion by allowing the State to waive its opening and by refusing to allow
the defendant an opportunity to rebut the State’s closing arguments. Id.
Degadillo’s argument is “substantially similar” to the arguments made by
the defendant in Margraves, and, as in Margraves, Degadillo did not offer a bill
of exception, nor did he specify any harm that would come from the State not
5
… In Norris, too, the State did not make a closing argument until after
the defendant made his. 902 S.W.2d at 442. The trial court denied the
defendant’s request to rebut the State’s arguments, and the defendant offered
bills of exceptions showing what he would have argued had he been permitted
to answer the State’s arguments. Id. The defendant argued on appeal that the
trial court had erred by refusing to allow him to rebut the State’s closing
arguments. The Texas Court of Criminal Appeals rejected his argument, noting
that his bills of exceptions did not show that his trial was “fundamentally
unfair.” Id.
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having made an opening argument. Thus, we conclude that the trial court did
not abuse its discretion, and we overrule Degadillo’s second issue.6
V. Conclusion
Having overruled both of Degadillo’s issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
PUBLISH
DELIVERED: June 26, 2008
6
… Degadillo argues that the rules of civil procedure recognize
in civil cases involving money damages that fundamental fairness
requires a full opening of the case by the party with the burden of
proof. It is an abuse of discretion by the Trial Court in a criminal
case where life and liberty are at stake, to have a lesser standard.
He fails to recognize, however, that the rules of civil procedure and the code
of criminal procedure have very different requirements for arguments. See T EX.
R. C IV. P. 269; T EX. C ODE C RIM. P ROC. A NN. art. 36.07. Because this is a
criminal case, our decision must be based on the latter, which does not require
the State to open.
17