Roger Steven McCarty v. The State of Texas--Appeal from 49th Judicial District Court of Zapata County

MEMORANDUM OPINION
No. 04-02-00499-CR
Roger Steven MCCARTY,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 1382
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 31, 2003

AFFIRMED

A jury found appellant, Roger McCarty, guilty of murder and assessed punishment at 75 years confinement in the Texas Department of Criminal Justice Institutional Division. On appeal, McCarty contends the trial court denied him due process in denying him the right to present his theory of the case. McCarty also claims the trial court erred in excluding evidence of the victim's prior suicide attempts, which was a part of his theory of the case. In addition, McCarty argues that the trial court abdicated its role as fact finder regarding the voluntariness of McCarty's confession by ordering the State to prepare findings which the trial court unilaterally adopted. We affirm the trial court's judgment.

Background

According to McCarty's written statement, McCarty and his wife, Samara D'Spain, had an argument in which McCarty told her he was going to leave her. Samara told him she expected this and reached for another pill as she stated that she "will go out in a flame of glory." McCarty explained he was tired of hearing her talk about killing herself so he told her: "Why don't you do it right, set yourself on fire, then you can go out in a flame of glory." McCarty brought her a small bottle of model airplane gas that he retrieved from the bedroom. Samara put her hands out and McCarty splashed gas on her hands and upper legs as she was seated in a chair. He then told her to light herself up as he went to the bedroom to return the gas. When he reentered the living room, Samara had an unlit cigarette in her mouth and a lighter in her hand. He recounted that he was so mad and drunk that he reached over and picked up a lighter from the table and struck the lighter about six inches from her knee. McCarty was surprised to find that in the next moment Samara was in a blaze. Samara jumped out of the chair and McCarty reached for rugs to wrap around her in order to extinguish the fire. He then ripped off her still burning clothes and asked her if she wanted him to take her to the hospital. She said, "no, you are too drunk." She also declined his offer to call an ambulance declaring that "people will think that I have tried to kill myself again and they will lock me away from you." When McCarty asked her if she was sure she did not want to go to the hospital, she told him that she just wanted to lay there a while. Unable to tell how badly she was burnt, McCarty then went to bed. The next morning he saw Samara "sleeping" on the floor as he left to buy beer. Upon his return, he began talking with her and when she did not answer him, he realized she had died.

Denial of Due Process and Exclusion of Evidence

McCarty claims the trial court denied him due process in denying him the right to present his theory of the case. In addition, he contends the trial court erred in excluding evidence of Samara's prior suicide attempts, also denying him the right to present his theory of the case.

Preservation of Error

If the appellant does not perfect a bill of exception or proffer proof to show what the excluded testimony would have been, then nothing is preserved for review. See Passmore v. State, 617 S.W.2d 682, 685 (1981), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). "Thus, a defendant has the right to make an offer of proof or perfect a bill in order to preserve excluded testimony for appeal." Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). This right to make an offer of proof is absolute in a situation where evidence is excluded by the trial court. Id.; Tatum v. State, 798 S.W.2d 569, 571 (Tex. Crim. App. 1990). The offer of proof allows the appellate court to review the content of the excluded testimony so that any error from the exclusion can be corrected on appeal. Moosavi v. State, 711 S.W.2d 53, 54 (Tex. Crim. App. 1986).

McCarty argues the trial court violated his constitutional right to present a defense. Before the trial, the court granted the State's motion in limine prohibiting McCarty's counsel, Mr. Dancause, from introducing character evidence of Samara's past suicide attempts. Therefore, McCarty claims the trial court violated his rights in not allowing him to use evidence of Samara's past suicidal tendencies in presenting his defensive theory and in excluding testimony regarding those suicidal tendencies.

McCarty's counsel tried to bring in testimony of Samara's prior suicide attempts when he cross-examined Dr. Hickman, a treating physician in Zapata. The State objected and a hearing was held outside the presence of the jury. When the trial judge sustained the objection, McCarty's counsel never made an offer of proof as to the evidence he was trying to bring in through Dr. Hickman's testimony. The following exchange took place at trial:

The Court: All right. The objection is sustained, Counsel. Anything else that you want to do now?

Mr. Dancause: Note my objection. That's all.

The Court: That's all you want to do?

Mr. Dancause: Yes, sir. I mean, if the Court is objecting - I mean, the Court is sustaining their objection.

The Court: Well, I'm sustaining the objection. There is nothing more that you want to do in this regard outside the hearing of the jury?

Mr. Dancause: Not if the Court is sustaining the objection. I can't do anything else on that other than object. I mean, note my objection.

The Court: That's all you want to do?

Mr. Dancause: That's it.

The Court: All right. Bring the jury back in.

At a later time during the proceeding, the trial judge gave Mr. Dancause another opportunity to preserve error by presenting an offer of proof.

The Court: I understood a Bill of Review to be a procedure whereby you question a witness that was not allowed to testify in front of a jury for purposes of having a record of what the witness would have said-

Mr. Dancause: Yes, Judge.

The Court: - and so, if you want to offer something to perfect the bill that you were prevented by the Court from presenting, I'll give you that opportunity now.

Mr. Dancause did present an offer of proof as to the voluntariness of McCarty's statement, but not as to the character evidence regarding Samara he tried to bring in during the trial. McCarty did not preserve error as to the exclusion of evidence relating to Samara's suicidal tendencies, which was his theory of the case; therefore, his first two issues are overruled.

Trial Court Adopting Findings Prepared by the State

McCarty contends the trial court abdicated its role as fact finder when the court ordered the State to prepare the court's findings concerning the denial of McCarty's motion to suppress. Courts have been criticized for adopting proposed findings verbatim, but once adopted they are the findings of the court and "may be reversed only if clearly erroneous." Anderson v. Bessemer City, North Carolina, 470 U.S. 564, 572 (1985). A finding is clearly erroneous when it is evident to the reviewing court that a mistake has been made. Id. at 573 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The burden is on the appellant to demonstrate that such findings are clearly erroneous. Falcon Constr. Co. v. Econ. Forms Corp., 805 F.2d 1229, 1232 (5th Cir. 1986).

When McCarty's counsel objected to the admission of McCarty's statement, the court stated its finding that the statement was voluntarily made.

The Court: The objection is overruled, Counsel, and I find specifically that the statement was voluntarily made, and this finding is made on the basis of the testimony of Ranger Doyle Holdridge who testified that he warned the defendant of his rights, and further, on the testimony that indicates that the defendant identified his markings, his initials, on each one of the rights that was read to him together with each one of the pages that was part of the statement; and I will direct that the attorney for the State prepare an order reciting the findings of the Court denying the Motion to Suppress, and at this time I will admit the statement into evidence.

The trial court ordered the State to recite the findings of the court, the findings the court had just stated. McCarty suggests the trial court abdicated its role as fact finder; however, this claim is not true since the trial judge did make findings as to the statement's admissibility.

Furthermore, McCarty never explained how the court's findings are clearly erroneous, which is the standard for reversal. McCarty has only suggested the findings should be reversed since the State prepared them for the trial court, not because they are substantively erroneous. There is no evidence presented that the trial court's findings concerning the voluntariness of McCarty's statement are clearly erroneous. Therefore, McCarty's third issue is overruled.

Conclusion

Overruling McCarty's issues, we affirm the judgment of the trial court.

Catherine Stone, Justice

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