Dangerfield, William v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WILLIAM HEATH DANGERFIELD, )

) No. 08-02-00114-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-24,312)

)

O P I N I O N

Appellant, William Heath Dangerfield, appeals the revocation of his community supervision and attendant sentence of two years= confinement in the State Jail Division of the Texas Department of Criminal Justice. He raises one issue on appeal: whether the trial court violated his fundamental due process rights by failing to allow Appellant to present closing arguments prior to the assessment of punishment at the community supervision revocation hearing. We affirm.

Appellant was indicted for engaging in organized criminal activity in April 1998. He pled guilty to the lesser-included offense of the unauthorized use of a motor vehicle. The trial court sentenced him to two years= confinement in the State Jail Division of the Texas Department of Criminal Justice, but suspended the sentence and placed him on community supervision for a term of five years. On March 7, 2002, a revocation of community supervision hearing was held. Appellant pled Anot true@ to allegations he had violated the terms of his community supervision. After hearing witnesses for both the State and Appellant, the trial court found the allegations in the State=s motion to revoke to be true. Accordingly, Appellant=s community supervision was revoked and he was sentenced to two years= confinement in the State Jail.

Appellant argues the trial court erred by failing to allow him to make a closing argument prior to the assessment of punishment at the revocation hearing. He maintains he was not afforded minimum due process rights under Texas and federal law. In particular, Appellant claims he was not given a meaningful opportunity to be heard.

The right to closing argument is crucial to the adversarial fact-finding process both at trial and at a revocation hearing. Ruedas v. State, 586 S.W.2d 520, 524 (Tex.Crim.App. 1979); Foster v. State, 80 S.W.3d 639, 640 (Tex.App.--Houston [1st Dist.] 2002, no pet.). Moreover, a trial court abuses its discretion if it denies defense counsel the right to make a closing argument. Ruedas, 586 S.W.2d at 524; Foster, 80 S.W.3d at 640. This legal standard was set forth by the Texas Court of Criminal Appeals in Ruedas v. State.

In Ruedas, defense counsel expressly requested closing argument and was refused. Ruedas, 586 S.W.2d at 522. Here, the State presented one witness at the revocation hearing before resting. Appellant then called three witnesses on his behalf. After the third witness testified, defense counsel rested and both sides closed. The record then reflects that the trial judge stated, A[g]ive me just a moment,@ and there was a pause of some length before the judge made his findings. Neither party made any statements during the pause. Defense counsel did not object or indicate in any way that he wished to make a closing argument.

In order to preserve error for review, a defendant must notify the trial court of his desire to make a closing argument, the trial court must refuse that opportunity, and then the defendant must make a timely objection to the trial court=s ruling. Tex.R.App.P. 33.1(a); Foster, 80 S.W.3d at 640-41. In this case, no such request was made and the trial court did not refuse to allow Appellant to make closing arguments. Absent such a request or an objection Appellant has failed to preserve error for our review. Id. Accordingly, Appellant=s issue on appeal is overruled.

The judgement of the trial court is affirmed.

June 12, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

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