                           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?



                                       8
      [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

                                       9
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

                                 10
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.

                                        16
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
