Anastasia Lynette Collum v. State ( 2014 )

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
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1302596D
TRIAL COURT NO. 1317410D
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MEMORANDUM OPINION1
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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.
community supervision in trial court cause number 1302596D and her placement
on deferred adjudication community supervision in trial court cause number
1317410D. 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 (1302596D) with a sentence of two years
in jail and deferred adjudication community supervision for the new theft charge
(1317410D).
Collum chose to accept the trial court’s option of adjudication of guilt on the
original theft charge (1302596D) with a two-year jail term, plus being placed on
deferred adjudication community supervision on the new theft charge
(1317410D). 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.
III. 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.
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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
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