No. 4-05-00303-CR
Delivered and Filed: March 29, 2006. DO NOT PUBLISH.
Appeal from the 399th District Court, Bexar County, Texas, Trial Court No. 2003-CR-10167, Honorable Juanita Vasquez Gardner, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: REBECCA SIMMONS, Justice.
A jury found Appellant, Arthur Warren, guilty of possession of a forged check with intent to pass the same. Warren was sentenced to two years imprisonment, however, his sentence was suspended and instead he was placed on community supervision for five years. In two points of error, Warren asserts the trial court erred in denying him the opportunity to make an opening statement and that defense counsel provided ineffective assistance requiring either a judgment of acquittal or reversal and remand of the case for a new trial. Because neither of Warren's points of error present reversible error we affirm the trial court's judgment.
Factual Background
Warren, allegedly, created the forged instrument and, accompanied by Candace Collins, a co-defendant, drove to a local bank and presented the instrument through the bank's drive-through window. The check was payable to Collins. Elizabeth Chavarria, the bank teller who received the instrument, testified that because of a previous transaction on that same day, involving Collins as a payee, she faxed the check and Collins' driver's license to their Risk Management Department. Before doing so, Chavarria informed Warren that it would just be a minute. However, upon returning to her teller window, Warren and Collins had driven away. The State charged Warren with possession of a forged check with the intent to pass the same. At trial, upon the State concluding their opening statement, the court gave Warren the opportunity to make an opening statement. Warren declined, choosing instead to reserve his right to make an opening statement at a later point. The State presented their case-in-chief, introducing evidence through the testimony of six witnesses, including the co-defendant and the bank teller to whom Warren allegedly presented the forged instrument. After the State rested, Warren's counsel asked the trial court if he could make his opening statement. The State objected asserting that Warren was not entitled to make an opening statement if he had no intention of presenting evidence in his defense. Warren's counsel admitted that he did not intend on introducing any evidence. The trial court sustained the objection. Denial of Opening statement
Warren asserts that the trial court committed harmful error in denying him the opportunity to make an opening statement. Specifically, Warren contends that an opening statement would have helped the jury focus on the veracity of the co-defendant witness. We disagree that the trial court's denial amounted to harmful error. Even assuming, without deciding, that the trial court committed error in denying defendant's counsel the right to make an opening statement, the error is harmless. See McGowen v. State, 991 S.W.2d 803 (Tex.Crim.App. 1998). The denial of the right to make an opening statement is subject to a harm analysis to determine whether it constitutes reversible error. Id. Because the alleged error involves a statutory right, not a constitutional one, our harm analysis is pursuant to Rule 44.2(b). Tex.R.App.P. 44.2. Rule 44.2(b) provides that any nonconstitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Id. A substantial right is affected when: "(1) the error had a substantial injurious effect or influence in determining the jury's verdict; or (2) leaves one in grave doubt whether it had such an effect." Espinoza v. State, 29 S.W.3d 257, 259 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). We note that the uncomplicated nature of a case can be determinative on whether the denial of the defense's right to make an opening statement affected a defendant's substantial right. See id. (noting that the difference between the cases that have found the denial of defendant's right to make an opening statement as substantially injurious and those that have not was due to "their complexity of facts, defensive issues, and length of trial"); see also Davis v. State, 22 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (stating "we are satisfied that the jury did not have any difficulty in following appellant's presentation of this case, even without an opening statement"). In such instance we would take into account the complexity of the facts, defensive issues, and the length of the trial. Espinoza, 29 S.W.3d at 259; Davis, 22 S.W.3d at 12. We conclude the circumstances of this case are relatively straightforward and uncomplicated and any focus Warren desired on the veracity of the co-defendant was effectively pointed out in his closing argument to the jury. Here, Warren did not call any witness or introduce any evidence. This was a forgery case that did not involve complex theories or issues. The facts were straightforward and easy to follow. The State called only six witnesses and the entire guilt or innocence phase of the trial lasted only one day. The entire reporter's record for the guilt or innocence phase of the trial is in one, 140-page volume. Warren's defensive theory was premised on challenging the testimony of Collins as insufficient to establish the required mental conduct of the charged offense. In his closing argument, Warren's counsel consistently referred to or mentioned that Collins is a "liar," "thief," "forger," "habitual liar," and was "convicted of forgery." He further reminded the jury that the State had the burden of proof and that they needed to prove that Warren intended to present the forged instrument. We are unable to say that the trial court's denial had a substantial injurious effect or influence on the jury's verdict nor are we in grave doubt whether it had such effect. Consequently, we hold that the trial court's denial of the defendant's right to make an opening statement, if erroneous, was harmless. Warren's first point of error is overruled. Ineffective Assistance of Counsel
In his second point of error, Warren argues that he was denied effective assistance of counsel because his trial counsel failed to: (1) seek removal of the entire venire panel after a venireman remarked upon the guilt of the accused; (2) give an opening statement after the State's opening; (3) properly raise a motion to dismiss at the close of the case; (4) effectively stop the State's attorney from calling defendant a "schemer" during closing argument; (5) move for a mistrial after the State's attorney alluded to the defendant's failure to testify; (6) effectively cross-examine lead investigator John Moore; and (7) that his counsel opened the door to other crimes in his cross-examination of Moore. In order to prove ineffective assistance of counsel, Warren must demonstrate that trial counsel's performance was deficient because it fell below an objective standard of reasonableness and a probability, sufficient to undermine confidence in the outcome, existed that but for counsel's deficiencies the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Warren must also overcome the presumption that, under the circumstances, the challenged action is consistent with sound trial strategy. Id. Based on the totality of the record, we conclude that Warren has failed to overcome the presumption that his trial counsel provided reasonably effective assistance. As to Warren's trial counsel failing to remove the entire venire panel, the objectionable juror changed his answer upon further inquiry by both the State and Warren's trial counsel. Based on the venireman's answers, it was within reason not to remove him or the entire venire panel. Trial counsel's failure to give an opening statement at the end of the State's opening, as already established, did not result in any harm much less change the outcome of the proceeding. Trial counsel's alleged failure to effectively raise a motion to dismiss at the close of the case does not overcome the presumption of consistent trial strategy or present a probability sufficient to undermine confidence in the outcome. See Woods v. State, 4 S.W.3d 85, 91 (Tex.App.-Fort Worth 1999, pet ref'd) (holding a defense attorney is not ineffective for failing to make futile objections). Warren's complaint as to trial counsel's questioning of the lead investigator, Moore, that allegedly opened the door to other crimes, fails to overcome the presumption that this might be considered sound trial strategy. The defense's theory was that Collins was solely responsible for the charged offense and that she previously had committed similar offenses. The reference to other crimes committed by Collins and other individuals is consistent with the defense's theory. Similarly, Warren fails to indicate how the alleged insufficient questioning of the co-defendant and Moore, if more fully developed, would have exonerated him or how it fell below an objective standard of reasonableness. See id. (stating "that the record on direct appeal will generally 'not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Stickland standard'"). Finally, Warren's complaint about trial counsel's alleged failure to stop the State from calling the defendant a "schemer" or failing to move for a mistrial after the State allegedly alluded to the defendant's failure to testify, is without merit. Trial counsel objected to each of these incidents and, based on the record, counsel's actions could be consistent with sound trial strategy. Furthermore, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002); see also Mitchell v. State, 68 S.W.3d 640, 643 (Tex.Crim.App. 2002) (stating "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record," thus a writ of habeas corpus is preferable in raising an ineffective assistance of counsel complaint). The record is void as to trial counsel's motives behind not moving for a mistrial. As such, Warren has failed to overcome the presumption, that under the circumstances, the challenged action is consistent with sound trial strategy. Rylander, 101 S.W.3d at 109-10. The record establishes that Warrren's trial counsel cross-examined the witnesses and presented relevant closing arguments challenging the testimony of the State's witnesses. We are unable to conclude that Warren met its burden in proving that trial counsel provided ineffective assistance. Accordingly, we overrule Warren's second point of error. Conclusion
The trial court's judgment is affirmed.