                         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


                                     ----------

     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
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.



                                           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.



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