COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00521-CR
RODNEY DIMITRIUS LAKE A/K/A APPELLANT
RODNEY D. LAKE
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1173627D
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OPINION
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Appellant Rodney Dimitrius Lake, also known as Rodney D. Lake, pled not
guilty to the offense of sexual assault of a child under seventeen years of age. A
jury found Appellant guilty of that offense and assessed his punishment at ten
years’ imprisonment and a $10,000 fine but recommended that the confinement
portion of the sentence be suspended and that Appellant be placed on
community supervision. The trial court sentenced him accordingly, suspending the
imposition of the confinement portion of the sentence and placing him on
community supervision for ten years. About three years later, the State filed a
petition for revocation of suspended sentence, alleging that Appellant had violated
five conditions of his community supervision, including contacting the complainant
and viewing pornography. The trial court heard the petition to revoke, found two of
the allegations true, revoked Appellant’s community supervision, and sentenced
him to ten years’ imprisonment.
In two points, Appellant contends that the trial court violated his rights to due
process and effective assistance of counsel by denying his request to present
closing argument and that the trial court also violated his right to due process by
refusing to consider the entire range of punishment and sentencing him to ten
years’ confinement based on the original jury verdict. Because we hold that the
trial court committed reversible error by denying Appellant the right to make final
argument, we reverse the trial court’s judgment and remand this case to the trial
court for a new trial.
Refusal to Allow Final Argument
Appellant does not challenge the sufficiency of the evidence to support
revocation. Instead, in his first point, he contends that the trial court violated his
rights to due process and effective assistance of counsel by denying his request
to present closing argument. At the close of evidence, the following exchange
took place:
2
[DEFENSE COUNSEL]: Can we make a closing statement
when the time comes, Your Honor?
THE COURT: Sir?
[DEFENSE COUNSEL]: Can I make a closing statement
when the time comes?
THE COURT: I don’t need one.
All right. Will you stand, Mr. Lake.
Based on the evidence, the Court will
make the following findings, rulings,
orders, and judgments.
The trial court then revoked Appellant’s community supervision and
sentenced him to ten years’ confinement, the maximum sentence allowed.
Preservation
The State argues that Appellant failed to preserve his complaint because
he did not object to the trial court’s denial of his request for final argument. The
State is incorrect. Texas Rule of Appellate Procedure 33.1 provides,
(a) In General. As a prerequisite to presenting a complaint for
appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely
request, objection, or motion that:
(A) stated the grounds for the ruling that the
complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent
from the context; and
(B) complied with the requirements of the Texas Rules
of Civil or Criminal Evidence or the Texas Rules of Civil
or Appellate Procedure; and
(2) the trial court:
3
(A) ruled on the request, objection, or motion, either
expressly or implicitly; or
(B) refused to rule on the request, objection, or motion,
and the complaining party objected to the refusal. 1
Appellant properly preserved his complaint for appellate review by
requesting to make a final argument and securing the trial court’s denial of that
request. It is no longer required that a litigant except to the trial court’s ruling in
order to preserve the complaint. 2 As the Texas Court of Criminal Appeals has
held,
[t]o avoid forfeiture of a complaint on appeal, all a party has to do is
let the trial judge know what he wants and why he thinks he is
entitled to it and do so clearly enough for the judge to understand
the request at a time when the trial court is in a proper position to do
something about it. 3
In Hyer v. State, a case directly on point, our sister court in Amarillo explained,
[W]e have little difficulty in concluding that a jurist facing like
circumstances would interpret the request as one seeking
opportunity to proffer closing arguments.
Next, the request to pursue a procedural step guaranteed by
both the United States and Texas Constitutions followed by the trial
court’s refusal to permit it was sufficient to meet the requisites of
Texas Rule of Appellate Procedure 33.1. The latter simply
mandates that the complaint raised on appeal be “made to the trial
court by timely request, objection or motion.” (Emphasis added).
Omitted from that rule are words expressly obligating the
complainant to take further action once a “request” or “motion” is
1
Tex. R. App. P. 33.1.
2
See id.; Bedolla v. State, 442 S.W.3d 313, 316 (Tex. Crim. App. 2014).
3
Bedolla, 442 S.W.3d at 316.
4
made and denied. There is no need to pursue the historic practice
of verbally “excepting” to a decision rejecting the objection, for
instance. That this is true is exemplified by a defendant’s ability to
remain silent at trial when evidence is being tendered for admission
if that evidence was the subject of an unsuccessful motion to
suppress. Similarly illustrative is the defendant’s ability to preserve
error involving the refusal to submit a jury instruction by merely
requesting the instruction and having the court deny the request. In
each instance the trial court had the opportunity to address the
matter, and Rule 33.1 simply assures that such an opportunity be
afforded the court. 4
A recent case from this court on this issue, Collum v. State, 5 appears at
first glance to hold the opposite of the Amarillo court in Hyer, but Collum is
distinguishable on its facts. Collum did not unequivocally request final argument,
and this court therefore held that complaint forfeited. 6 Here, however, Appellant
specifically and unequivocally asked to offer final argument, and the trial judge
clearly denied his request.
Another opinion out of this court, Crane v. State, 7 also appears contrary to
our holding in the case now before this court:
4
335 S.W.3d 859, 860–61 (Tex. App.—Amarillo 2011, no pet.) (citations
omitted).
5
Nos. 02-13-00395-CR, 02-13-00396-CR, 2014 WL 4243700, at *2 (Tex.
App.—Fort Worth Aug. 28, 2014, no pet.) (mem. op., not designated for
publication).
6
See id.
7
No. 02-08-00122-CR, 2009 WL 214195, at *1 (Tex. App.—Fort Worth Jan.
29, 2009, no pet.) (mem. op., not designated for publication).
5
[A]fter both sides rested, [Crane] moved for directed verdict “based
upon the evidence alone,” and argued that the evidence was “wholly
insufficient even if believed beyond a reasonable doubt.” After the
trial court found [her] guilty, the record shows the following colloquy
between [Crane’s] counsel and the trial court:
[DEFENSE COUNSEL]: Can we have some arguments?
THE COURT: I don’t think it’s necessary because I treat
the—the way I consider this is this seems
to be some type of involuntary
intoxication—not involuntary, but voluntary
intoxication with some medications.
Anyway, with that, does either side wish to
present any evidence as to punishment?
(the State responds in the negative)
THE COURT: [DEFENSE COUNSEL]?
[DEFENSE COUNSEL]: Nothing further. 8
The Crane court held that after Crane requested final argument and the
trial court denied her request, she forfeited her complaint because she failed to
object to the trial court’s denial of her request for argument. 9 But in reaching that
holding, the Crane court apparently misconstrued the holding in the case it relied
on, an opinion authored by the First Court of Appeals in Houston, Foster v.
State. 10 The Foster court did not hold that Foster forfeited his complaint for
8
Id.
9
Id.
10
80 S.W.3d 639 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see
Crane, 2009 WL 214195, at *1 n.3.
6
failure to object to the trial court’s denial of his request for oral argument. The
Foster court instead determined that Foster did not request oral argument:
In his first issue, [Foster] contends the trial court violated his
constitutional right to counsel by not hearing closing argument prior
to adjudicating guilt. The right to closing argument is crucial to the
adversarial fact-finding process and is no less critical at a revocation
hearing. The trial court abuses its discretion by denying counsel the
right to make a closing argument.
In Ruedas, defense counsel explicitly requested argument and
was refused. In the instant case, however, no such request was
made, and the trial court did not refuse to allow [Foster] to make
closing arguments or present evidence. To the contrary, the trial
court asked [Foster] if he had anything else to add, and he
responded that he did not. 11
Crane, on the other hand, did specifically ask to make final argument. The
trial court said that it did not need final argument but invited both the State and
Crane to offer additional evidence on punishment. Crane responded, “Nothing
further.” It is possible that the trial court (and our court) construed that statement
as an abandonment of the request for final argument. But we face no such
confusion in this case. Appellant here made a clear, unambiguous request for
oral argument, as did Crane, but made no further statement that could be
construed as an abandonment of his request.
We also note that an Amarillo case issued after Hyer, Habib v. State,
essentially reinstates the requirement of formal exception to the trial court’s
11
Foster, 80 S.W.3d at 640–41 (citations omitted).
7
ruling, 12 contrary to the plain language of rule 33.1. 13 We believe that that case
was wrongly decided. We therefore decline to follow it and rely instead on the
plain language of rule 33.1 and the trend of the Texas Court of Criminal Appeals
to dispense with formulaic rules of preservation when the trial judge had an
opportunity to address the complaint. 14
Reversible Error Presumed from Denial of Closing Argument
As the Hyer court explained in a footnote, relying on United States
Supreme Court and Texas Court of Criminal Appeals cases, the Sixth
Amendment right to effective assistance of counsel and a defendant’s right to be
heard under Article 1, Section 10 of the Texas Constitution both guarantee a
defendant the right to make a closing argument. 15 Those rights, therefore, are
violated when a trial court denies a defendant the opportunity to make a closing
argument. 16 Because the error is constitutional and the effect of the denial of
12
431 S.W.3d 737, 741–42 (Tex. App.—Amarillo 2014, pet. ref’d).
13
See Tex. R. App. P. 33.1.
14
See, e.g., Bedolla, 442 S.W.3d at 316; Bryant v. State, 391 S.W.3d 86,
92 (Tex. Crim. App. 2012).
15
Hyer, 335 S.W.3d at 860 n.1 (citing Herring v. New York, 422 U.S. 853,
857–58, 95 S. Ct. 2550, 2553 (1975), and Ruedas v. State, 586 S.W.2d 520,
522–23 (Tex. Crim. App. 1979)); see also U.S. Const. amend. VI; Tex. Const. art.
I, § 10.
16
Herring, 422 U.S. at 857–58, 95 S. Ct. at 2553; Ruedas, 586 S.W.2d at
522–23; Hyer, 335 S.W.3d at 860 n.1.
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closing argument cannot be assessed, the error is reversible without any
showing of harm. 17 We therefore sustain Appellant’s first point, which is
dispositive. Consequently, we do not reach his second point. 18
Conclusion
We deny Appellant’s pending “Motion Regarding Court Reporter’s Record”
as moot, and having sustained his dispositive first point, we reverse the trial
court’s judgment and remand this cause to the trial court for a new trial on
revocation.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
LIVINGSTON, C.J., concurs without opinion.
PUBLISH
DELIVERED: February 19, 2015
17
Kirk v. State, No. 05–98–00095–CR, 1999 WL 566786, at *2 (Tex.
App.—Dallas Aug. 4, 1999, no pet.) (not designated for publication) (citing
Herring, 422 U.S. at 864, 95 S. Ct. at 2556); see also Hyer, 335 S.W.3d at 860
n.1.
18
See Tex. R. App. 47.1.
9