                                      In The
                                Court of Appeals
                  Sixth Appellate District of Texas at Texarkana

                             ______________________________

                                   No. 06-07-00087-CR
                             ______________________________


                            JUSTIN HEATH GAFFORD, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                         On Appeal from the 8th Judicial District Court
                                   Hopkins County, Texas
                                  Trial Court No. 0517881




                        Before Morriss, C.J., Carter and Cornelius,* JJ.
                                Opinion by Justice Cornelius

________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
                                            OPINION

       Justin Heath Gafford was indicted for murder. He waived a jury trial and entered a plea of

guilty before the trial court. After a bench trial on the plea, the trial court found Gafford guilty as

charged and sentenced him to life imprisonment.

       On appeal, Gafford raises three issues: The State failed to sufficiently rebut Gafford's

evidence raising the issue of self-defense; the trial court erred by failing to sua sponte withdraw

Gafford's guilty plea when the evidence raised the issue of self-defense; and the trial court erred in

refusing Gafford's request to open and close at the final argument on punishment. We overrule all

these contentions and affirm the judgment.

       The evidence supporting Gafford's guilty plea consisted of his judicial confession and his

personal testimony, as well as the testimony of several other witnesses. The evidence revealed,

among other things, that Gafford and his brother, Frankie Gafford, were regular users of

methamphetamine. On the day of the murder, Gafford and his brother used methamphetamine

together. Gafford began to feel bad so he lay down to rest. He later awoke to find his brother on his

(Gafford's) back having anal intercourse with him. A struggle ensued. Eventually, Gafford grabbed

a pair of scissors and stabbed Frankie repeatedly in the neck, chest, and abdomen, causing his death.

The State offered evidence that Frankie was the dominant person in the relationship between him

and Gafford, and that Gafford suffered from paranoia and had violent tendencies, especially when




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he was using methamphetamine. Gafford's wife testified that she never knew Frankie to exhibit any

violent tendencies, but that even she had been stabbed by Gafford using tin snips, a scissors-like tool.

        We first consider the contention that the State failed to sufficiently rebut Gafford's claim of

self-defense. Gafford entered a plea admitting he was guilty of the offense as charged in the

indictment. In addition, he testified in person at the trial on his guilty plea and acknowledged that

he murdered his brother, at one point answering the question, "Well, he wasn't raping you anymore

when you got those scissors, right?" with the statement, "No, Sir. I shouldn't have got the scissors

after him."

        Gafford signed a judicial confession, which will alone sustain a conviction on a guilty plea.

Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979). Although Gafford gave some

testimony that raised the issue of self-defense, he fully admitted his guilt of the charged offense, he

repeatedly contradicted his own testimony raising self-defense, and the remaining evidence of his

guilt is more than sufficient to support the trial court's finding that the State's evidence rebutted

Gafford's claim of self-defense.

        Gafford also contends the trial court erred in failing to sua sponte withdraw his guilty plea

when evidence raised the issue of self-defense. We reject this contention. The trial court is not

required to sua sponte withdraw a defendant's guilty plea and enter a plea of not guilty when the

defendant enters a guilty plea before the trial court after waiving a jury, even if evidence is presented

that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to his



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guilt. Mendez v. State, 138 S.W.3d 334, 336 (Tex. Crim. App. 2004); Aldrich v. State, 104 S.W.3d

890, 893 (Tex. Crim. App. 2003); see also Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App.

1978).

         Because this was a trial on a plea of guilty before the court without a jury, the trial court, as

the finder of fact, had the option to find Gafford not guilty if the evidence supported such a finding.

The trial court also had the option to find Gafford guilty of a lesser offense than murder if he found

the facts justified such a finding. So, in any event, Gafford was not harmed.

         Last, Gafford asserts that the trial court should have granted his request to open and close at

the final argument on punishment. Gafford argues that he had a right to open and close because he

had the burden to prove sudden passion. The trial court has broad discretion to control the order of

the proceedings in a trial, including final argument, especially when the trial is nonjury. Garcia v.

State, 537 S.W.2d 930, 936 (Tex. Crim. App. 1976). However, Article 36.07 of the Texas Code of

Criminal Procedure provides that the State's counsel shall have the right to make the concluding

address to the jury. TEX . CODE CRIM . PROC. ANN . art. 36.07 (Vernon 2007). This rule applies even

when the defendant has the burden of proof on an affirmative defense, because the State still has the

burden to overcome the defendant's evidence and to prove all the elements of the offense charged,

including the defendant's intent and culpability. Martinez v. State, 501 S.W.2d 130, 132 (Tex. Crim.

App. 1973).




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       Moreover, we can perceive no harm to Gafford as a result of this procedural ruling. The trial

court here heard all the evidence, which fully explored the State's case and Gafford's defenses, and

was fully informed as to the law and the facts. It is unlikely that the court would have been

influenced in any way by which party opened and closed the argument on punishment, as a jury

might have been. We find no abuse of discretion on the part of the trial court.

       For the reasons stated, we affirm the judgment of the trial court.




                                              William J. Cornelius
                                              Justice*

*Chief Justice, Retired, Sitting by Assignment

Date Submitted:        April 7, 2008
Date Decided:          August 4, 2008

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