









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

O P I N I O N


	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
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
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).
	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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