
                             NO.  07-09-0338-CR

      IN THE COURT OF APPEALS

      FOR THE SEVENTH DISTRICT OF TEXAS

      AT AMARILLO

      PANEL C

      MARCH 9, 2011
      ______________________________

      NATHAN A. HYER,

                                                   Appellant

      v.

      THE STATE OF TEXAS,

                                                   Appellee
      _____________________________

      FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2008-421,248; HON. JIM BOB DARNELL, PRESIDING
      ______________________________

                                   Opinion
                       ______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Appellant, Nathan A. Hyer, appeals his  conviction  for  possessing  a
controlled substance, namely cocaine.  Though  thirteen  issues  are  before
us, we only address whether he was denied the assistance of counsel  because
counsel was not allowed to make a closing  argument  during  the  punishment
phase of the trial.  Our disposition of it  is  dispositive  of  the  appeal
because we reverse the judgment.
      Appellant pled guilty to the charged offense without  the  benefit  of
an agreement regarding punishment.  He also waived his right to a  jury  and
asked the trial court to determine  punishment.   At  the  hearing  on  that
matter, both the State and appellant proffered  witnesses.   When  they  had
done so, the trial court  asked:   "[d]oes  the  State  close?"   The  State
replied:  "[t]he State closes, your honor."  Then,  the  following  exchange
transpired between the court and defense counsel:
      THE COURT: [Appellant], if you'll come up here.
      MR. HOGAN:  Judge, I didn't close.  Could I make  a  couple  of  brief
      suggestions to the Court before you - -


      THE COURT:  No.
      MR. HOGAN:  All right.
Why the trial court so  denied  defense  counsel  the  opportunity  to  make
closing remarks went unexplained.  Moreover, the  State  concedes  that  the
decision evinced reversible error  if  preserved  for  review.[1]   So,  the
issue  before  us  is  one  of  preservation;  did  appellant  preserve  his
complaint about being denied his constitutional right to legal counsel  when
the trial court refused  to  allow  him  to  tender  closing  argument?   We
conclude he did.
      That the  State  did  not  ask  for  opportunity  to  provide  closing
argument is undisputed.  That the trial court  was  proceeding  to  sentence
appellant without  affording  appellant  the  opportunity  to  provide  such
argument is clear.  That appellant, through his counsel, expressly  informed
the court that it had yet to "close" and would like  to  make  a  couple  of
comments is also clear, as is the  trial  court's  refusal  to  let  him  do
so.[2]   Admittedly,  defense  counsel  did  not  use  the  phrase  "closing
argument" when asking for leave to speak.  Yet, he did ask  for  the  chance
to comment once the State "closed" and before the trial court  decided  what
measure of punishment to levy.  Furthermore, the request came at that  stage
of the proceeding when litigants would normally undertake closing  argument,
i.e. after both sides rested.  So, we have little difficulty  in  concluding
that a jurist facing like circumstances would interpret the request  as  one
seeking opportunity to proffer closing arguments.   Bennett  v.  State,  235
S.W.3d 241, 243 (Tex. Crim. App. 2007) (stating that  "'[m]agic  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").
      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).  Tex. R. App. P.  33.1(a)(1).   Omitted  from
that rule are words expressly obligating the  complainant  to  take  further
action once a "request" or "motion" is made and denied.  There  is  no  need
to pursue the historic  practice  of  verbally  "excepting"  to  a  decision
rejecting the objection, for instance.   See Farrar  v.  State,  784  S.W.2d
54, 56 (Tex. App.-Dallas 1989, no pet.).  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.  Flores v. State, 129 S.W.3d  169,  171-72  (Tex.  App.-
Corpus Christi 2004, no pet.).  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.  Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006).  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.
Lopez v. State, 96 S.W.3d  406,  412  (Tex.  App.-Austin  2002,  pet  ref'd)
(stating that Rule 33.1 serves  to  give  the  trial  court  the  chance  to
address potential error in the first instance).
      We do note that prior  objections  or  complaints  can  be  waived  by
subsequent actions or comments  of  counsel.   Saying  "no  objection"  when
evidence, made the subject of a prior motion to suppress, has  that  effect,
for instance.  Obviously, such a phrase can be accepted for what  the  plain
meaning of the words denote, that the opponent has no objection to  what  is
being done.  A like and clear  expression  of  intent  was  not  made  here,
however.  It is conceivable that counsel saying "all right"  may  mean  that
the speaker has no problem with or complaint about what is being  done,  but
the context of the comment is all important.  We cannot ignore the  fact  of
evolving life that the younger generation often assigns new meaning  to  old
words.  "Bad" can be "good," for example.
        Here, appellant's counsel was not  asked  a  question  to  which  he
responded "all right."  Instead, opportunity  to  comment  about  punishment
was requested and was abruptly denied him.  Saying "all right" in  reply  to
such as the unexplained denial of a constitutional  right  may  well  evince
surprise or the circumstance of being taken aback, as  opposed  to  approval
of  the  trial  court's  decision  to  forego  closing  argument.   This  is
especially  so   when,   as   here,   defense   counsel   later   attempted,
unsuccessfully, to proffer another suggestion apparently  on  the  topic  of
punishment.  Moreover, the reporter's  record  reveals  that  counsel  often
said "all right" after others spoke.  That exact phrase was  vocalized  once
when his client testified about being twice sent to "state  jail."   So  too
did counsel say the same words when  appellant  described  how  he  "started
skipping school and getting high" in the seventh grade and that  he  sold  a
friend's dog  to  buy  "dope."   In  none  of  those  situations  could  one
legitimately interpret "all right" as indicating  approval  of  the  conduct
disclosed.  Indeed, given the many other instances of counsel muttering  the
phrase when it had no logical relationship to what had been said,  we  infer
that he simply had a penchant  for  saying  "all  right,"  much  like  those
individuals who intersperse their  communication  with  words  like  "okay,"
"like," and "you know."  They mean nothing, generally, and the speaker  most
likely  does  not  know  they  are  being   verbalized.    So,   given   the
circumstances in the  record  before  us,  counsel's  uttering  "all  right"
cannot reasonably be interpreted as an intent to waive his request  to  make
closing remarks or approve of what the trial court did.
      Nor do we find  controlling  the  authority  cited  by  the  State  to
support the argument that the error was not preserved.   For  instance,  the
Court  of  Criminal  Appeals  was  not  addressing  the   topic   of   error
preservation when writing in Ruedas v. State, 586  S.W.2d  520  (Tex.  Crim.
App. 1979).  So while the defendant there expressly  objected  and  excepted
to the refusal to allow closing argument, the case  hardly  stands  for  the
proposition that one must so object and except to  preserve  his  complaint.
The same also is true of Kirk v. State, No. 05-98-0095-CR,  1999  Tex.  App.
Lexis 5743 (Tex. App. -Dallas August 4, 1999, no pet.) (not  designated  for
publication).  And, to the extent that the reviewing court  held  in  In  re
M.A., No. 08-02-00544-CV, 2004 Tex. App. Lexis 5172 (Tex. App.-El Paso  June
10, 2004, no pet.) (not designated for publication) that the issue  was  not
preserved because appellant failed to expressly object to the trial  court's
ruling that denied his request for closing  argument,  no  other  courts  of
appeal other than El Paso have followed it.   Nor  did  the  El  Paso  court
support its conclusion with any precedent.  Moreover, the opinion  could  be
read as adding another element to Rule 33.1 omitted  by  those  who  drafted
the proviso.  Again, the latter specifies that the  complaint  tendered  for
review be encompassed in a "timely request, objection or motion."   It  does
not say that if the complaint  was  encompassed  in  a  "request,"  then  an
"objection" must also be made to preserve the matter  once  the  request  is
denied.
      We opt not to add into  a  rule  what  its  authors  left  out.   That
opportunity is left to the authors should they care to accept  it.   All  an
appellant need do is make his complaint known to the trial court  through  a
"request, objection or motion;" he need  not  do  more  once  any  of  those
avenues are travelled.  (Emphasis added).   See  e.g.  Ponce  v.  State,  68
S.W.3d 799, 807 (Tex. App.-Amarillo 2001, no  pet.)  (holding  that  it  was
enough to request the particular relief or opportunity to preserve error).
      In sum, the  complaint  at  issue  was  preserved.   Since  the  State
conceded it to be harmful error, we reverse  the  judgment  and  remand  the
cause for another punishment hearing.

                                        Brian Quinn
                                        Chief Justice

Publish.
-----------------------
      [1]The right to  effective  assistance  of  counsel  under  the  Sixth
Amendment  guarantees  a  defendant  the  opportunity  to  make  a   closing
argument.  See Herring v. New York, 422 U.S. 853,  857-58,  95  S.Ct.  2550,
2553, 45 L.Ed.2d 593 (1975).  Similarly, a defendant's  right  to  be  heard
under Article  1,  Section  10  of  the    Texas  Constitution  assures  the
defendant the right to make a closing argument.  See Ruedas  v.  State,  586
S.W.2d 520, 522-23 (Tex. Crim. App. 1979).   Those  rights,  therefore,  are
violated when a trial court denies a defendant the  opportunity  to  make  a
closing argument.  Herring, 422 U.S. at 857-58, 95 S.Ct. 2550;  Ruedas,  586
S.W.2d at 522-23.   And,  the  violation  gives  rise  to  reversible  error
without the complainant having to show prejudice.  See Kirk  v.  State,  No.
05-98-0095-CR, 1999 Tex. App. Lexis 5743 (Tex. App.-Dallas August  4,  1999,
no pet.) (not designated for publication.)
      [2]A later effort by defense counsel to have input into the tenor of
his client's punishment was also rebuffed.  After the trial court
pronounced sentence, defense counsel asked:  "[w]ill the Court entertain an
addition of the ISF recommendation to the judgment?"  The court's answer
was "[n]o."

