Almaguer, Melissa

PD-0474-15
PD-0474-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/28/2015 1:16:18 PM
Accepted 4/29/2015 10:44:32 AM
ABEL ACOSTA
CAUSE NO. 02-14-00259-CR CLERK

IN THE COURT OF APPEALS

FOR THE SECOND COURT OF APPEALS DISTRICT

FORT WORTH, TEXAS

MELISSA ALMAGUER
Appellant,

V.

THE STATE OF TEXAS,
Appellee.

On appeal from Cause No. F-2012-1538-C, the 211th Judicial District Court
Denton County, Texas
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

HAMMERLE FINLEY
LAW FIRM
Craig M. Price
State Bar No. 16284170
2871 Lake Vista Drive,
April 29, 2015 Suite150
Lewisville, Texas 75067
Telephone: 972-436-9300
Telecopier: 972-436-9000
cmp@hammerle.com

ATTORNEY FOR APPELLANT
 I.
Identity of Parties and Counsel

Trial Judge: Honorable L. Dee Shipman
211th Judicial District Court
1450 E. McKinney, 2nd Floor
Denton, Texas 76209

Appellant: Melissa Almaguer

Counsel: Craig M. Price,
E-Mail: cmp@hammerle.com
HAMMERLE & FINLEY, LLC
2871 Lake Vista Drive, Suite 150
Lewisville, Texas 75067
Tele: 972-436-9300
Facsimile: 972-436-9000
SBN 16284170

State: Catherine Luft
1450 E. McKinney Street, Suite 3100
Denton, Texas 76209
SBN 24013067

ii
 II.

Table of Contents

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS ............................................................................... iii

TABLE OF AUTHORITIES ......................................................................... iv

STATEMENT OF FACTS ............................................................................. 1

SUMMARY OF ARGUMENT ..................................................................... 3

APPENDIX .................................................................................................. 17

Issue No. 1. The trial court refused Appellant right to present closing
argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Issue No. 2: Court of Appeals held that Appellant failed to preserve her
complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Issue No. 3: Lower court erred in holding that Appellant acquiesced to no
argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Issue No. 4: This Court should resolve dispute of significant issue. . . . 14

iii
 III.

Table of Authorities
Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.—Dallas 1991,
pet. ref’d) ...................................................................................................... 4
Fielding v. State, 719 S.W.2d 261, 368 (Tex. App.—Dallas1986, pet ref’d) .. 5
Lake v. State, Cause No. 02-13-00521-CR, *1, at pp. 7-9 (Tex. App.—Fort Worth,
Feb. 19, 2015, no pet. yet)…………………………………………………5
Collum v. State, Cause No. 02-13-00395 and no. 02-13-00396-CR, *1, at p.4 [Tex.
App. Fort Worth, August 28, 2014, no pet]………………………………..8
Hyer v. State, 335 S.W.3d 859, 860-61 [Tex. App.—Amarillo 2011, no pet.] …10
Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003) ................... 10
Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). .................... 9
Bedolla v. State, 442 S.W.3d 313, 316 (Tex. Crim. App. 2014) .................. 22
Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007). ………….11

IV.

iv
 STATUTES
Texas R. App. P. 66.1. .................................................................................... 1
Tex. R. App. P. 33.1(a) ................................................................................... 8
Tex. R. App. P. 33.1…………………………………………………………9

v
 CAUSE No. 02-14-00259-CR

IN THE COURT OF APPEALS
FOR THE SECOND COURT OF APPEALS DISTRICT
FORT WORTH, TEXAS

MELISSA ALMAGUER,
Appellant,

VS.

THE STATE OF TEXAS,
Appellee.

On appeal from Cause No. F-2012-1538-C, in the 211th Judicial District Court,
Denton County, Texas

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Appellant, Melissa Almaguer, and files her Petition for

Discretionary Review pursuant to Texas R. App. P. 66.1, and in support thereof

respectfully shows this Court the following:

I.

STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument unless requested by this Court.

II.

STATEMENT OF THE CASE

APPELLANT’S PETITION FOR REVIEW PAGE 1
 Appellant initially pled guilty to the state jail felony offense of possession of

a controlled substance of less than one gram as part of a plea bargain agreement

with the State, and she was sentenced to deferred adjudication for three years,

beginning on January 16, 2013. The State sought to proceed with an adjudication

of guilt based on several alleged technical violations and the commission by

Appellant of a new offense, a misdemeanor theft. The trial court conducted an

adjudication hearing on May 30, 2014, after which the trial court found the

allegations to be true and sentenced Appellant to confinement in a State Jail

Facility for two years.

Appellant appealed the trial court’s judgment on several grounds, and the

Second court of appeals affirmed the trial court’s judgment.

III.

STATEMENT OF PROCEDURAL HISTORY

The trial court adjudicated Appellant as guilty on May 30, 2014, and

sentenced her to two years confinement in a Texas State Jail Facility. Appellant

appealed, and the second court of appeals affirmed the trial court’s judgment on

February 26, 2015. Appellant timely filed her Motion for Rehearing and Motion

for Rehearing En Banc, which was denied on March 26, 2015.

Appellant timely files her Petition for Discretionary Review on April 27,

2015.

APPELLANT’S PETITION FOR REVIEW PAGE 2
 IV.

GROUND FOR REVIEW

Ground One: The trial court erred in refusing to permit
Appellant’s trial counsel to present closing argument.

V.
ARGUMENT

Appellant initially pled guilty to the state jail felony offense of possession of

a controlled substance of less than one gram as part of a plea bargain agreement

with the State, and was sentenced to deferred adjudication for three years,

beginning on January 16, 2013. On or about February 19, 2014, the State filed its

Motion to Proceed With Adjudication of Guilt, and the Court conducted a

contested hearing on the State’s motion on May 30, 2014. [2 RR 14]

At trial, Lance Washburn, an employee with the Denton County Adult

Probation Department, testified during the State’s case about the terms of

probation that allegedly applied to Appellant. [2 RR 6-26] At the conclusion of

Appellant’s case on rebuttal, both sides rested. [2 RR 63 (Court: “I’ll close on the

true and not true phase, I guess I’ll call it.)] Only Appellant’s uncle testified

during punishment, and the State offered no other evidence, not even through

cross-examination. [2 RR 66-67]

A. Trial court refused Appellant right to present closing argument.

APPELLANT’S PETITION FOR REVIEW PAGE 3
 Immediately after closing the testimony, and without offering any

opportunity for the attorneys to provide closing argument, the trial court indicated

that he was going to sentence Appellant to the maximum amount of time in jail:

Court: I’m going to sentence the Defendant to two years confinement
in the state jail. Any reason the Defendant should not be
sentenced at this time?

Defense: No argument, Your Honor?

Court: I don’t feel like I need any argument.

[2 RR 67 (emphasis added)] Then, with no explanation for the basis of its

maximum punishment, the trial court reiterated its decision and sentenced

Appellant to “two years confinement in the state jail division of the Texas

Department of Criminal Justice.” [2 RR 67]

Appellant sought a new trial on punishment because the trial court

improperly deprived her of any closing argument of the evidence through her

counsel. By denying Appellant any summation of the evidence and rendering a

sentence immediately after a relatively short but hotly contested hearing to proceed

with adjudication, the trial court signaled its reliance on passion and disdain for

Appellant’s actions rather than a cool, careful deliberation of the entire range of

punishment. See Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.—Dallas

1991, pet. ref’d) (defendant denied due process because trial court’s action

effectively excluded evidence relevant to punishment, it precluded consideration of

APPELLANT’S PETITION FOR REVIEW PAGE 4
the full range of punishment, and it deprived defendant of a fair and impartial

tribunal at the punishment phase) (citing Fielding v. State, 719 S.W.2d 261, 368

(Tex. App.—Dallas1986, pet ref’d).

On appeal, Appellant argued that she had a constitutional right to present

closing argument, pursuant to the Sixth Amendment right to counsel and the Fifth

Amendment right to due process – both applied to the States through the

Fourteenth Amendment to the United States Constitution -- as well as the

concomitant right to counsel and right to due course of law in the Texas

Constitution. Appellant’s Brief, pp. 20-21.

B. Court of appeals held that Appellant failed to preserve her complaint.

On February 19, 2015, one week before it issued its opinion in Appellant’s

case, the second court of appeals held that a trial court commits harmful error by

denying the defendant’s request to present closing argument at the end of a

hearing to revoke the defendant’s probation. Lake v. State, Cause No. 02-13-

00521-CR, *1, at pp. 7-9 (Tex. App.—Fort Worth, Feb. 19, 2015, no pet. yet).

Although the second court of appeals had previously recognized that the denial of

the right to present closing argument in a probation revocation hearing constituted

harmful error, the same court held that Appellant’s counsel failed to preserve error

on her complaint that the trial court denied her the opportunity to present closing

argument. Op., at pp.6-7.

APPELLANT’S PETITION FOR REVIEW PAGE 5
 In Lake, the defendant was convicted of sexual assault of a child under age

17, and the jury assessed his punishment at ten years and recommended that the

sentence be probated. See Lake Op., at pp. 1-2. Three years later, the trial court

conducted a hearing on the State’s motion to revoke the defendant’s probation and

found two of the allegations to be true. Therefore, the trial court sentenced the

defendant to ten years’ imprisonment. Id., at p. 2. The defendant in Lake

complained on appeal that the trial court denied his right to due process and right

to effective assistance of counsel by denying his request to present closing

argument. Id., at p. 2.

The lower court held in Lake that the trial court committed reversible error

by failing to allow a defendant’s counsel to present closing argument at a hearing

to revoke his probation:

[T]he 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. [citations omitted] Those rights, therefore, are violated when
a trial court denies a defendant the opportunity to make a closing
argument. [citations omitted] Because the error is constitutional and
the effect of the denial of closing argument cannot be assessed, the error
is reversible without any showing of harm. [citations omitted].

Lake Op., at pp. 8-9 (emphasis added).

The court also rejected the State’s claim that the defendant had failed to

preserve error:

APPELLANT’S PETITION FOR REVIEW PAGE 6
 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. [citation omitted]

See Lake Op., at pp. 3-4 (emphasis added).

Based on its decision in Lake, the lower court had determined that a trial

court’s failure to grant a defendant’s request to present closing argument in a

hearing to revoke the defendant’s probation necessarily constitutes harmful error.

Lake, Op., at pp. 8-9. Therefore, as long as Appellant requested the opportunity to

present closing argument, it follows that the trial court committed reversible error

by refusing that request. [2 RR 67]

Despite its reversal under almost identical facts in Lake, the lower court held

that Appellant’s counsel failed to properly request the opportunity to present

closing argument and, as a result, failed to preserve error on that complaint. Op.,

at p. 7. However, the exchange over closing argument in Lake was virtually

identical to the exchange in Appellant’s case:

LAKE Opinion

At the close of evidence, the following exchange took place:

[Defense counsel]: Can I make a closing statement when the time
comes?

The Court: I don’t need one.

See Lake Op., at pp. 2-3 (emphasis added).

APPELLANT’S PETITION FOR REVIEW PAGE 7
ALMAGUER Opinion

Immediately after the close of testimony, and without offering any

opportunity for the attorneys to provide closing argument, the trial court stated as

follows:

Court: I’m going to sentence the Defendant to two years confinement
in the state jail. Any reason the Defendant should not be
sentenced at this time?

Defense: No argument, Your Honor?

Court: I don’t feel like I need any argument.

[2 RR 67 (emphasis added)]

The second court of appeals held that Appellant’s counsel failed to preserve

any complaint about the trial court’s refusal to permit closing argument:

[Appellant’s] counsel only asked if there would be any closing arguments;
he did not specifically request to make a closing argument. And [Appellant]
acquiesced in the trial court’s decision to not hear closing arguments by
replying, “Okay” when the trial court said no arguments were needed. Thus,
[Appellant] has not preserved this issue for our review.

Op., at p. 7. The court cited Tex. R. App. P. 33.1(a) and its own 2014 decision in

Collum v. State, Cause No. 02-13-00395 and no. 02-13-00396-CR, *1, at p.4 [Tex.

App. Fort Worth, August 28, 2014, no pet] as support for its holding that Appellant

failed to preserve her complaint because she did not object to the trial court’s

refusal to allow a defendant to make a closing argument. Op., at p. 7.

APPELLANT’S PETITION FOR REVIEW PAGE 8
 However, the lower court had stated in Lake – again, just one week before

this opinion and well after the decision in Collum – that Tex. R. App. P. 33.1 does

not require a party to object to the trial court’s denial:

It is no longer required that a litigant except to the trial court’s ruling in
order to preserve the complaint.

Lake Op., at p. 4. The court’s failure to even cite its decision in Lake, while

relying instead on Collum as authority for the point that Appellant had to not only

request oral argument but also except to the trial court’s denial of the opportunity

to present closing argument in order to preserve her complaint, is misplaced. Op.,

at p.7.

Collum wrongly interpreted the current preservation requirements of Tex. R.

App. P. 33.1(a)(1)(A), and the court of appeals in Lake correctly rejected Collum’s

analysis. in See Collum v. State, Cause No. 02-13-00395-CR and No. 02-13-

00396-CR, *1, at p. 4. Still, the lower court in Appellant’s case followed the

incorrect logic of Collum rather than the proper – and more recent -- holding in

Lake. Compare Lake Op., at pp. 3-4 with Op., at p. 7.

The question remains: Did Appellant fail to preserve her complaint

about the trial court’s denial of the opportunity to present closing argument?

As noted in Lake, Tex. R. App. P. 33.1 provides:

(a) In General. As a perquisite to presenting a complaint for appellate
review, the record must show that:

APPELLANT’S PETITION FOR REVIEW PAGE 9
 (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:

(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.

Tex. R. App. P. 33.1; Lake Op., at pp. 3-4.

No talismanic words are needed to preserve error as long as the court can

understand what the complaint is from the context. Clark v. State, 365 S.W.3d

333, 337 (Tex. 2012); Lake Op., at p. 4 (quoting Hyer v. State, 335 S.W.3d 859,

860-61 [Tex. App.—Amarillo 2011, no pet.]) (“[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.”). See also Bedolla v. State,

442 S.W.3d 313, 316 (Tex. Crim. App. 2014) (all party has to do is let trial judge

know what the party wants, clearly enough for judge to understand when it is in a

APPELLANT’S PETITION FOR REVIEW PAGE 10
position to do something about it). See also Lake Op., at p. 4 (quoting Bedolla,

442. S.W.3d at 316).

The Texas Court of Criminal Appeals also has stated that strict reliance on

particular phrases when making objections at trial are a thing of the past:

To be sure, there are reported cases which seem to take a more slavish and
unforgiving approach, but these have dwindled in importance as they have in
frequency. Contemporary examples are now few and far between, and it is
our purpose that they become even less common in the future.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (emphasis added).

More recently, the Court of Criminal Appeals has stated that “magic words”

are not required to preserve error, and a complaint will be preserved if the

substance of the complaint is conveyed to the trial judge. Bennett v. State, 235

S.W.3d 241, 243 (Tex. Crim. App. 2007).

The trial judge in this case clearly understood Appellant’s counsel’s

comment of, “No argument, Your Honor?” as a request to present closing

statements following the conclusion of all evidence, which is why the trial court

responded with a denial of the request for closing argument in a manner that was

almost verbatim to the phrase used by the trial judge in Lake: “I don’t feel like I

need any argument.” [Compare 2 RR 67 with Lake Op., at p. 3 (“I don’t need

[closing argument].”).

The reporter’s record necessarily cannot include the inflection in counsel’s

voice when he asked, “No argument, Your Honor?” [although the court reporter

APPELLANT’S PETITION FOR REVIEW PAGE 11
understood that Defendant’s counsel was asking a question rather than making a

statement about argument], but the totality of counsel’s statement and inflection,

along with the context of Appellant’s request, which occurred at a time in criminal

proceedings typically devoted to closing arguments of counsel, clearly indicated to

the judge Appellant’s request to present closing argument in order to summarize

her position.

Likewise, the trial court’s response – “I don’t feel like I need any argument”

– clearly communicated to Appellant’s counsel that Appellant would not be

allowed to present any closing argument to summarize the evidence or her

position, nor would Appellant be allowed to request a particular result or sentence

during such closing statement or argument.

If Appellant’s counsel was not requesting the opportunity to present closing

argument, a different response from the trial court would have been expected,

something to indicate that the status of closing argument was not an issue. But

closing argument was an issue. Everyone in the courtroom, including the

experienced trial judge, understood exactly what Appellant’s counsel was asking

for – an opportunity to present closing argument -- and everyone understood that

the trial court denied Appellant’s request for closing argument on the grounds that

the trial court was not going to be swayed by statements from counsel for the State

or Appellant; thus, the trial court did not feel like he needed any argument.

APPELLANT’S PETITION FOR REVIEW PAGE 12
 To hold that Appellant failed to preserve her complaint about the denial of

the opportunity to present closing argument under these circumstances constitutes

the type of “slavish and unforgiving approach” to the preservation of error that the

Texas Court of Criminal Appeals has argued against. Lankston v. State, 827

S.W.2d at 909.

C. Lower court erred in holding that Appellant acquiesced to no

argument.

The lower court also erred by holding that counsel’s response of “Okay,”

after being told by the trial judge that he did not need any argument, constituted a

waiver of the request to present closing argument. Op., at p. 7.

The Amarillo court of appeals held in a similar case -- when defense counsel

replied “All right” to a trial court’s denial of closing argument at the conclusion of

a punishment hearing -- that counsel’s colloquial statement was not in response to

a question and could not be considered a clear expression of any intent to waive the

complaint about the denial of closing argument.. Hyer, 335 S.W.3d at 861.

Likewise, Appellant’s counsel’s colloquial statement of “okay” in response

to the trial court’s denial of the opportunity to present closing argument cannot be

considered as a clear waiver of the request to present such argument; counsel

merely acknowledged the trial court’s denial of that request. [2 RR 67]

APPELLANT’S PETITION FOR REVIEW PAGE 13
 D. This Court should resolve dispute of significant issue.

This Court should grant Appellant’s petition for discretionary review

because: (1) the court’s decision in this case conflicts with another court of

appeals’ decision on the same issue; and (2) this court has decided an importanat

question of state law that has not been, but should be, settled by the Court of

Criminal Appeals; and (3) this court has decided an important question of law in a

manner that conflicts with decisions of the Court of Criminal Appeals. See Tex. R.

App. P. 66.3(a), (b) and (c).

The second court of appeals issued opinions in Collum, Lake and

Appellant’s case within six months of each other (August 28, 2014 to February 26,

2015); all three opinions concern the denial of a request to present closing

argument during a probation/adjudication hearing; all three opinions concern

whether the defendant preserved error to complain about the denial of closing

argument; at least two of the opinions – first Collum and now Appellant’s case –

appear to conflict with the intervening opinion in Lake regarding whether the

defendant not only had to request closing argument but also had to object to the

trial court’s refusal to grant closing argument in order to preserve error, which also

conflicts with Texas Rule of Appellate Procedure 33.1 and decisions from this

Court of Criminal Appeals; and the court’s decision in Appellant’s case appears to

APPELLANT’S PETITION FOR REVIEW PAGE 14
reject the clear “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.” Lake Op., at p. 8.

For the same reason that was stated in Lake, this Court of Criminal Appeals

should reverse the lower court’s judgment and opinion that Appellant failed to

preserve error on her complaint that the trial court erred in denying her the right to

have counsel present closing argument. Because Appellant preserved her

complaint, and because such error is harmful, this Court should reverse the

judgment against Appellant and remand for a new trial on Appellant’s

adjudication. See Lake Op., at p. 9 (court reversed and remanded for a new trial on

revocation).

As a result, Appellant respectfully moves this Court to grant her petition for

discretionary review, reverse the judgment and opinion of the court of appeals,

reverse the trial court’s determination of punishment and remand this matter to the

trial court for a new trial on punishment.

VI.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant Melissa Almaguer

respectfully moves this Court of Criminal Appeals to reverse the judgment

adjudicating her guilty and assessing her punishment at two years confinement in a

APPELLANT’S PETITION FOR REVIEW PAGE 15
state jail facility and remand this matter to the trial court for a new trial only on

punishment phase of the State’s Motion to Proceed With Adjudication.

Respectfully submitted,
/s/ Craig M. Price
Craig M. Price
State Bar No. 16284170
Email: cmp@hammerle.com
HAMMERLE FINLEY LAW FIRM
2871 Lake Vista Dr., Suite 150
Lewisville, Texas 75067
Tel: (972) 436-9300
Fax: (972) 436-9000
Attorney for Petitioner

CERTIFICATE OF SERVICE

This is to certify that on April 27, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Denton
County, 1450 E. McKinney St., Denton, Texas, 76209, via facsimile.

/s/ Craig M. Price
Craig M. Price

CERTIFICATE OF COMPLIANCE

The undersigned counsel hereby certifies, pursuant to Tex. R. App. 9.4(i)(4),
that the foregoing Petition for Discretionary Review contains a total of 3,952
words.

/s/ Craig M. Price
Craig M. Price

APPELLANT’S PETITION FOR REVIEW PAGE 16
 APPENDIX

1. Memorandum Opinion from February 26, 2015

2. Opinion from February 19, 2015

3. Memorandum Option from August 28, 2014

APPELLANT’S PETITION FOR REVIEW PAGE 17
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00259-CR

MELISSA ALMAGUER APPELLANT

V.

THE STATE OF TEXAS STATE

FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-1538-C

MEMORANDUM OPINION 1

!. Introduction

In four points, Appellant Melissa Almaguer appeals a two-year sentence

imposed after the trial court adjudicated her guilty of violating conditions of her

deferred adjudication community supervision. We will affirm.

1
See Tex. R. App. P. 47.4.

: DEFENDANT'S
d
z
EX~.IBIT
I§
iii ~.
 U. Background

On January 16, 2013, Almaguer pleaded guilty to possession of less than

one gram of a controlled substance with the intent to deliver" Following this plea,

the trial court placed her on three years' deferred adjudication community

supervision and imposed a $1000 fine" Almaguer acknowledged the terms of her

probation and signed the order deferring adjudication.

On February 19, 2014, the State filed a motion to adjudicate guilt alleging

six violations: that Almaguer (1) committed a new offense, (2) failed to complete

her community service, (3) failed to complete a drug/alcohol evaluation within the

required time frame, (4) failed to complete the drug education program, (5) failed

to pay the laboratory fee, and (6) failed to complete a life skills course. After a

hearing on the merits, the trial court found all of the allegations true, adjudicated

Almaguer guilty, revoked her probation, and assessed punishment at two years'

confinement in the Texas Department of Criminal Justice.

Ill. Standard of Review

Appellate review of the decision to adjudicate guilt is "in the same manner"

as review of the revocation of community supervision. Tex. Code Crim. Proc.

Ann. art. 42.12, § 5(b) (West Supp. 2014). To prevail in a hearing on a motion to

revoke community supervision, the State must prove that the defendant violated

a condition of community supervision as alleged in the petition. Lopez v. State,

46 S.W.3d 476, 481 (Tex" App.-Fort Worth 2001, pet. refd). Proving any one of

the alleged violations of the conditions of community supervision is sufficient to

2
support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Grim.

App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Grim. App.

[Panel Op.] 1980). The State's burden of proof in a revocation proceeding is by

a preponderance of the evidence. Lopez, 46 S.W.3d at 481-82. Appellate

review of an order revoking community supervision is limited to a determination

of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d

303, 305 (Tex. Grim. App. 1983).

IV. Discussion

In her first point, Almaguer argues that the trial court erred by refusing to

grant a directed verdict after the State's case-in-chief. In her second and third

points, she asserts that the evidence is insufficient to support the punishment

and that the trial court failed to consider the entire range of punishment. In her

final point, Almaguer argues that the trial court erred by denying her the right to

present closing argument

A. Directed Verdict

Almaguer asserts that the trial court erred in denying the directed verdict

because the State failed to present any evidence that she is the same person as

the defendant in the new offense and furthermore that she is the same "Melissa

Almaguer" who had been placed on probation.

The burden of proving a probationer's identity in a revocation hearing is not

the same as the burden of proving the identity of an accused in a criminal trial.

See Rice v. State, 801 S.W.2d 16, 17 (Tex. App.-Fort Worth 1990, pet. refd).

3
In a probation revocation, the State need only prove its case by a preponderance

of the evidence. /d.

At the revocation hearing, the trial court first took judicial notice of its

record. Afterward, Denton County Probation Officer Lance Washburn testified to

the cause number of the case, his familiarity with Almaguer, the crime for which

she received probation, when she was placed on probation, how long she was to

be on probation, and the details of her transfer to Tarrant County. In addition, the

trial judge presiding over the revocation was the same judge who had placed

Almaguer on probation in 2013, and the attorney representing Almaguer at the

revocation hearing was the same attorney that represented her when she was

placed on probation. See Barrow v. State, 505 S.W.2d 808, 810-11 (Tex. Grim.

App. 1974) (holding that witness testimony identifying the defendant was not

necessary when the same judge who granted appellant's probation also revoked

it, and the attorney representing appellant at the revocation had the same name

as the attorney representing appellant when the court granted probation). Given

these facts, we hold that the trial court had sufficient evidence to believe that the

"Melissa Almaguer" at the revocation hearing was the same person placed on

probation in 2013.

To prove the violations alleged in the petition, Officer Washburn testified

that Almaguer violated each of the conditions as alleged in the petition. The

State also introduced into evidence a judgment and sentence of the new offense

4
committed by "Melissa Almaguer" in Tarrant County while Almaguer was on

probation.

Because at the time of the motion for the directed verdict Almaguer was

sufficiently identified and because any one of the violations would have been

sufficient to support an order to revoke, the trial court did not err by denying the

directed verdict nor did it abuse its discretion in adjudicating Almaguer's guilt.

See Rice, 801 S.W.2d at 17 (holding that the State satisfies its burden of proof in

a revocation hearing when "the greater weight of the credible evidence before the

court creates a reasonable belief that a condition of probation has been

violated"). We overrule her first point.

B. Punishment Complaints

In her second and third points, Almaguer asserts that the trial court abused

its discretion by assessing the maximum punishment of two years' confinement

and by refusing to consider the entire range of punishment.

Generally, an appellant may not complain about her sentence for the first

time on appeal. Curry v. State, 910 S.W.2d 490, 497 (Tex. Grim. App. 1995);

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Grim. App. 1986); Means v. State,

347 S.W.3d 873, 874 (Tex. App.-Fort Worth 2011, no pet.) ("Because Appellant

did not object to his sentences when they were imposed or present his motions

for new trial to the trial court, he failed to preserve his sentencing complaints for

appellate review."); Laboriei-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.-

Fort Worth 2011, pet. ref d). Here, Almaguer did not complain about her

5
sentence in the trial court. When the trial court asked if there was any legal

reason why it should not sentence Almaguer, defense counsel said there was

not. Because Almaguer did not raise these issues with the trial court, she has

not preserved these complaints for our review. See Tex. R. App. P. 33.1 (a); see

a/so Woodward v. State, No. 02-13-00519-CR, 2014 WL 6601936, at* 1 (Tex.

App.-Fort Worth Nov. 20, 2014, no pet. h.) (mem. op., not designated for

publication) (holding that in a revocation hearing "[a]ppellant forfeited his

sentencing complaint by not raising it on allocution or in his motion for new trial").

We overrule her second and third points.

C. Closing Arguments

In her final point, Almaguer argues that the trial court erred by refusing to

permit her counsel to present a closing argument.

The following exchange took place between the trial court and counsel in

this case:

[Defense Counsel]: The Defense rests, Your Honor.

The Court: Anything from the State?

[Prosecutor]: Close.

The Court: I'll close the testimony. I'm going to sentence the
Defendant to two years confinement in the state jail. Any reason the
Defendant should not be sentenced at this time?

[Prosecutor]: No, Your Honor.

The Court: Any legal reason, Counsel?

[Defense Counsel]: No argument, Your Honor?

6
 The Court: I don't feel like I need any argument

[Defense Counsel]: Okay

The Court: Any legal reason the Defendant should not be
sentenced?

[Defense Counsel]: No legal reason, Your Honor.

Almaguer's counsel only asked if there would be any closing arguments;

he did not specifically request to make a closing argument. And Almaguer

acquiesced in the trial court's decision to not hear closing arguments by replying,

"Okay" when the trial court said no arguments were needed. Thus, Almaguer

has not preserved this issue for our review. See Tex. R. App. P. 33.1 (a); see

also Collum v. State, Nos. 02-13-00395-CR, 02-13-00396-CR, 2014 WL

4243700, at *1-2 (Tex. App.-Fort Worth Aug. 28, 2014, no pet.) (mem. op., not

designated for publication) (holding that because appellant did not object to the

trial court's refusal to allow appellant to make a closing argument, she did not

preserve error for review). We overrule her final point.

V. Conclusion

Having overruled Almaguer's four points, we affirm the trial court's judgment.

/s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

7
DELIVERED: February 26, 2015

8
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02~13-00521-CR

RODNEY DIMITRIUS LAKE NKIA APPELLANT
RODNEY D. LAKE

V.

THE STATE OF TEXAS STATE

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1173627D

OPINION

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

DEFENDANT'S
EXHIBIT
v
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,

[VV]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 f-lyer, 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

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).

l
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. refd).
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. Grim. 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. Grim. App. 1979)); see a/so U.S. Canst. amend. VI; Tex. Canst. 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.

8
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
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00395-CR
NO. 02-13-00396-CR

ANASTASIA LYNETTE COLLUM APPELLANT

V.

THE STATE OF TEXAS STATE

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 13025960
TRIAL COURT NO. 13174100

MEMORANDUM OPINION 1

I. iNTRODUCTION

In one point, Appellant Anastasia Lynette Collum appeals her punishment

assessed by the trial court after the revocation of her deferred adjudication

1
See Tex. R. App. P. 47.4.

DEFENDANT'S
EXHIBIT
J
community supervision in trial court cause number 13025960 and her placement

on deferred adjudication community supervision in trial court cause number

131741 OD. We will affirm.

II. BACKGROUND

In January 2013, in exchange for five years' deferred adjudication

community supervision and, among other conditions, the condition that she not

commit a new offense against the laws of the State of Texas while on

supervision, Collum pleaded guilty to theft of property valued under $1500. See

Tex. Penal Code Ann. §§ 31.03(a), (e)(3) (West Supp. 2014). Collum also

pleaded true to two prior convictions. In March 2013, the State filed a petition to

proceed to adjudication, alleging that Collum had violated the no-new-offense

condition of her community supervision on two occasions plus committed multiple

violations of her community supervision. Specifically pertaining to new offenses,

the State alleged that Collum had entered a "habitation with intent to commit

theft" 2 and that she had committed theft of an automobile valued between $1,500

and $20,000.

At the adjudication hearing, Collum pleaded guilty to the new theft charge

and true to the State's other allegations. The trial court then proceeded to

punishment.

2
At the hearing, the State waived "Count Two" which would appear from
the record to have been the State's allegation regarding entry of a habitation with
intent to commit theft.

2
 After both sides presented evidence and rested, the State waived its right

to open closing argument. The court then expressed to Collum's counsel that he

could close. Counsel responded, "If I could have just a moment, Your Honor?"

Before counsel could close, however, the trial court offered Collum the choice

between four years' incarceration based upon multiple convictions or the

adjudication of the original theft charge (13025960) with a sentence of two years

in jail and deferred adjudication community supervision for the new theft charge

(13174100).

Collum chose to accept the trial court's option of adjudication of guilt on the

original theft charge (13025960) with a two-year jail term, plus being placed on

deferred adjudication community supervision on the new theft charge

(131741 00). The trial court rendered judgment accordingly, sentencing Collum

to two years in jail and placing her on deferred adjudication community

supervision. Neither the trial court, the State, nor Collum's counsel again

mentioned closing arguments, and the hearing came to a close. This appeal

followed.

Ill. DISCUSSION

In her sole point, Collum argues that the trial court erred by not allowing

her counsel to make a closing argument. The State argues that Collum failed to

preserve this issue for our review. We agree with the State.

3
 A trial court abuses its discretion by denying counsel the right to make a

closing argument. See Ruedas v. State, 586 S.W.2d 520, 524 (Tex. Crim. App.

[Panel Op.] 1979). But to preserve error in the denial of closing argument,

counsel must have notified the trial court of the desire to present closing

argument, the trial court must have refused that request, and counsel must have

asserted a timely objection to the trial court's ruling denying closing argument.

See Crane v. State, No. 02-08-00122-CR, 2009 WL 214195, at *1 (Tex. App.-

Fort Worth Jan. 29, 2009, pet. ref'd) (per curiam) (mem. op., not designated for

publication); see also Tex. R. App. P. 33. 1.

Here, Collum made an equivocal request for closing argument which, by

proceeding to adjudicate and sentence her, the trial court impliedly denied.

Collum, however, did not voice an objection to the trial court's implied ruling

denying her closing argument. As such, Collum has failed to preserve any error

in the trial court's denial of closing argument. See Habib v. State, 431 S.W.3d

737, 740-41 (Tex. App.-Amarillo 2014, pet. ref'd) (holding that appellant failed

to preserve denial of closing argument issue for appeal because "appellant did

not voice an objection to the trial court's implied ruling denying appellant closing

argument"). We overrule Collum's sole issue on appeal.

4
 IV. CONCLUSION

Having overruled Collum's sole issue on appeal, we affirm the trial court's

judgments.

/s/ Bill Meier

BILL MEIER
JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 28, 2014

5