Affirmed and Opinion filed April 2, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00138-CR
KHALEEM HASAN GUILLORY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1322045
OPINION
Khaleem Hasan Guillory challenges his conviction for possession of less
than one gram of cocaine on the ground that the trial court refused to permit his
attorney to make an opening statement. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with possession of less than one gram
of cocaine. He pleaded not guilty, and the case proceeded to trial.
In the transcript, appellant’s counsel’s voir dire is approximately twenty-six
pages long, eleven of which were spent on the issue of unreasonable searches and
seizures. Defense counsel told the members of the venire that even if the State
proved appellant’s guilt beyond a reasonable doubt, jurors still could refuse to find
him guilty if they believed that his rights were violated. The State eventually
objected that “[t]here has to be a jury instruction for that,” and appellant’s counsel
told the members of the venire, “I hope to get you a jury instruction meaning you
will be told later you can consider it.” The trial court then explained to the venire
that “[there] is a possibility that a jury could actually consider whether somebody’s
rights were violated. Sometimes a Judge makes a ruling before the jury hears that
information anyway.”
After the State’s opening argument, appellant’s counsel began his opening
argument, and the following exchange occurred:
Appellant’s Counsel: Ladies and gentlemen of the jury, I talked to
you in voir dire, which the Judge allowed
me a couple of minutes to talk to you about
the law. This is about the Constitution and
about people’s rights. One of the law
enforcement officers who was in the panel
said it should be left up – people’s rights
should be left up to Judges and appeals
courts.
The Court: This is not final argument, Mr. Hesse. This
is what you think the evidence may show.
Appellant’s counsel: Your Honor, I can argue that the pig flew
over the moon.
The Court: Have a seat, Mr. Hesse.
...
Appellant’s counsel: I object, Your Honor, to the Court not
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allowing me to defend my client—present
my defense to the jury, sir.
The Court: Objection so noted and overruled.
The State presented the testimony of three witnesses. Officer Mawhood
testified that at around midnight on October 1, 2011, he and his partner were
patrolling in a marked patrol vehicle in an area of the city known for narcotics
activity when Mawhood saw appellant standing outside of the driver’s window of a
vehicle in a private driveway. The vehicle was facing the street with its headlights
on, and appellant was about ten feet from Mawhood. The officer saw a hand-to-
hand transaction between appellant and the driver of the vehicle. When appellant
saw Mawhood watching, he abruptly stopped what he was doing and began to
walk very briskly away, and the driver of the vehicle quickly drove away in the
opposite direction. Within seconds, the officers pulled over and Mawhood
approached appellant, who appeared nervous and held his hands clenched. As a
safety precaution, Mawhood told appellant to stop and open his hands so that he,
Mawhood, could see them. When appellant did so, Mawhood saw what appeared
to be a crack rock of cocaine fall from appellant’s hand to the ground. The State’s
second witness established the chain of custody of the physical evidence, and the
State’s third witness testified that she tested the substance, which was found to
consist of 0.0272 grams of cocaine, including adulterants and dilutants.
Appellant called no witnesses and presented no evidence. His counsel asked
the trial court to instruct the jury that it should disregard evidence that officers
obtained from a search if the jury failed to find beyond a reasonable doubt that
officers (a) reasonably suspected that criminal activity was afoot and that the
defendant was connected to it, or (b) reasonably articulated why the defendant was
presently armed. The attorney also asked for an instruction that officers cannot
search a defendant for evidence of a crime unless there is probable cause to believe
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that an offense has been or is being committed. The trial court refused each of the
requested instructions. Despite the absence of the requested instructions,
appellant’s counsel urged the jury in closing argument to return a verdict of “not
guilty” because Officer Mawhood violated appellant’s constitutional right to be
free from unreasonable searches. During deliberations, the jury sent out the
question, “Are we to consider whether or not the defendant’s rights were violated
in determining guilt or innocence on the indictment?” The trial court responded,
“You are to be guided by the Court’s jury charge submitted to you and the
evidence that was submitted during the trial. Please continue your deliberations.”
The jury found appellant guilty. After finding that it was true that appellant
had two prior convictions, the jury assessed punishment at four years’
imprisonment.
In the sole issue presented, appellant argues that the trial court committed
harmful error by refusing to permit his counsel to make an opening statement to
the jury.
II. ANALYSIS
Under the Texas Code of Criminal Procedure, a criminal defendant has a
statutory right to make an opening statement after the State’s opening statement.
TEX. CRIM. PROC. CODE ANN. art. 36.01(b) (West 2007) (“The defendant’s counsel
may make the opening statement for the defendant immediately after the attorney
representing the State makes the opening statement for the State.”). If the trial
court improperly denies the defendant this right, the error is reversible if it affects
the defendant’s substantial rights. See TEX. R. APP. P. 44.2(b) (providing that any
nonconstitutional error “that does not affect substantial rights must be
disregarded”). We will conclude that the erroneous denial of the right to make an
opening statement affected the defendant’s substantial rights if, in light of the
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entire record, the error substantially swayed the jury or had a substantial influence
on its verdict. Davis v. State, 22 S.W.3d 8, 12 (Tex. App.—Houston [14th Dist.]
2000, no pet.).
Appellant asserts that his defense “rested on a sufficient grasp of the
complex and sometimes confusing case law” surrounding the right to be free from
unlawful searches and seizures. He contends that by refusing to permit his counsel
to impart an understanding of this case law to the jury through an opening
statement, the trial court committed harmful error by depriving him of the
opportunity to effectively present his defense. We disagree.
It is the trial court’s responsibility to instruct the jury on the law applicable
to the case. TEX. CRIM. PROC. CODE ANN. art. 36.14 (West 2007). In contrast, the
purpose of an opening statement is to allow defense counsel to tell the jury “[t]he
nature of the defenses relied upon and the facts expected to be proved in their
support.” Id. art. 36.01(a)(5). It is used “‘to communicate to the jury the party’s
theory of the case in order to aid the jury to evaluate and understand the evidence
as it is being presented.’” McGowen v. State, 25 S.W.3d 741, 747 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) (quoting Twine v. State, 970 S.W.2d 18, 19
(Tex. Crim. App. 1998) (McCormick, J., concurring)). But “‘the character and
extent of such statement are subject to the control of the trial court . . . .’” Norton
v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. 1978) (quoting McBride v. State,
110 Tex. Crim. 308, 316, 7 S.W.2d 1091, 1094 (1928)). “[W]hen an accused in a
timely manner seeks to avail himself of the privilege of making an opening
statement, and does not seek to abuse the privilege by commenting upon improper
or inadmissible facts, converting it into argument, or otherwise misusing it, it
should be accorded . . . .” Dugan v. State, 82 Tex. Crim. 422, 424, 199 S.W. 616,
617 (1917) (emphasis added). On the other hand, “if not kept within the proper
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limits, such right may be denied . . . .” McBride, 110 Tex. Crim. at 316, 7 S.W.2d
at 1094.
Among its other inherent powers, a trial court has broad discretion to control
the orderly proceedings in the courtroom. See State ex rel. Rosenthal v. Poe, 98
S.W.3d 194, 199 (Tex. Crim. App. 2003); Gonzales v. State, 2 S.W.3d 600, 607
(Tex. App.—Texarkana 1999, pet. ref’d). An attorney is required to abide by the
trial court’s ruling even if the attorney believes the ruling is erroneous. Fisher v.
Pace, 336 U.S. 155, 162, 69 S. Ct. 425, 428, 93 L. Ed. 569 (1949) (affirming Texas
Supreme Court in upholding trial court’s ruling jailing and fining attorney for
contempt for arguing with the trial court after disregarding the court’s instructions
to limit opening argument). Here, the trial court correctly instructed defense
counsel that the purpose of opening statement was to state to the jury “what you
think the evidence may show.” Although the record cannot convey the attorney’s
expression, tone of voice, bearing, and attitude, the words of the attorney’s answer
were more than argumentative; they were sarcastic and disrespectful. By
responding, “I can argue that the pig flew over the moon,” defense counsel amply
demonstrated his unwillingness to confine his remarks to the limitations properly
set by the trial court. Moreover, the attorney never retracted this statement,
apologized to the court, or in any way indicated that he wished to make an opening
statement that complied with the trial court’s instructions. In light of this response,
the trial court did not err in terminating defense counsel’s opening statement. Cf.
Sue v. State, 52 Tex. Crim. 122, 125 (1907) (trial court did not err in sustaining
objection that defense counsel’s opening statement was argumentative); accord,
Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no pet.).
The trial court denied defense counsel’s motion to suppress the physical
evidence obtained from appellant and did not instruct the jury that it could
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disregard any of the evidence admitted at trial. Appellant has not challenged either
of those rulings. Thus, although appellant’s counsel asked jurors in closing
argument to disregard the physical evidence and wished to make the same request
during opening statement, jurors were not free to do so. Thus, even if appellant
were correct in asserting that the trial court erred in refusing to permit defense
counsel to continue his opening statement, any such error necessarily would be
harmless.
III. CONCLUSION
Finding no error, we overrule the sole issue presented for our review and
sustain the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).
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