Ricky Lynn Appelt v. State ( 2013 )


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  •                            COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-12-00431-CR
    NO. 02-12-00432-CR
    RICKY LYNN APPELT                                                   APPELLANT
    V.
    THE STATE OF TEXAS                                                        STATE
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    FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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    MEMORANDUM OPINION 1
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    Appellant Ricky Lynn Appelt appeals his convictions for six counts of
    indecency with a child. In a sole point, he argues that the trial court abused its
    discretion by inadvertently reducing his time for closing jury argument.      We
    affirm.
    1
    Tex. R. App. P. 47.4.
    I. BACKGROUND
    A. FACTUAL BACKGROUND
    S.A. had two young daughters, L.G. and L.R. S.A. married Appellant in
    June 2006. In June 2010, L.R. showed S.A. a string of text messages Appellant
    had sent to L.R., which were “very sexual in nature” and, he admitted,
    “inappropriate.”   L.G. and L.R. eventually told S.A. that Appellant had acted
    inappropriately and in a sexual manner toward them beginning in 2006, with
    many of these instances involving Appellant exposing his genitals in L.R.’s and
    L.G.’s presence. On October 27, 2010, at the urging of her pastor, S.A. went to
    the police with the texts. After interviews with L.G. and L.R. were conducted, an
    arrest warrant and a search warrant were issued for Appellant and his home. At
    Appellant’s home, the police found adult pornography, including sexual pictures
    of S.A. and Appellant, on Appellant’s computer. The police also found letters and
    journals written by Appellant in which he admitted to touching his “crotch” in
    L.R.’s presence. The police discovered a workbook Appellant completed as part
    of sexual-addiction counseling he participated in. In the workbook, Appellant
    wrote that he was “careless with [his] nudity” because he does not view nudity as
    harmful or sexual.
    2
    B. PROCEDURAL BACKGROUND
    1. Trial
    Appellant was indicted for three counts of indecency by exposure with L.G.
    and three counts of indecency by exposure with L.R. 2 See Tex. Penal Code
    Ann. § 21.11(a)(2) (West 2011). After a trial that lasted less than two days and
    after the trial court read the charges to the jury, the trial court gave the State and
    Appellant thirty minutes each to conduct their closing jury arguments. See Tex.
    Code Crim. Proc. Ann. art. 36.14 (West 2007), art. 36.16 (West 2006), art. 37.07,
    § 2(a) (West Supp. 2012).       The State’s first argument portion lasted twelve
    minutes. 3   Co-counsel for Appellant then argued for approximately eleven
    minutes. Lead counsel for Appellant began his argument and referred to the fact
    that he would be arguing “for 20 minutes.” Approximately seven minutes into
    lead counsel’s argument, the trial court informed him that he had two minutes left
    to argue.    Lead counsel responded, “Two?” but immediately continued his
    argument. About three minutes later when the trial court informed lead counsel
    that his time had expired, lead counsel requested an extra “30 seconds,” which
    was granted. Lead counsel briefly summed up why Appellant should be found
    2
    Both L.G. and L.R. were younger than seventeen at the time of each
    offense.
    3
    The argument times are based on an exhibit prepared by the court
    reporter showing the time stamp for each line of argument.
    3
    not guilty. Lead counsel and co-counsel argued for a total of twenty-two minutes.
    The State then argued to the jury in rebuttal for thirteen minutes. 4
    The jury immediately began its deliberations after the State concluded its
    rebuttal argument. The jury deliberated for approximately six hours and found
    Appellant guilty of all six counts of indecency with a child.           The trial court
    discharged the jury, 5 and held a punishment hearing approximately two months
    later after a presentence-investigation report was prepared.            See Tex. Code
    Crim. Proc. Ann. art. 42.12, § 9 (West Supp. 2012). The trial court sentenced
    Appellant to ten years’ confinement for the three counts against L.R. and ten
    years’ confinement for the three counts against L.G., suspended imposition of the
    sentences, and placed him on community supervision for four years. See Tex.
    Code Crim. Proc. Ann. art. 37.07, § 2(b), art. 42.12, § 3(a) (West Supp. 2012).
    2. Motion for New Trial
    Appellant timely filed a notice of appeal and a motion for new trial. In his
    motion, Appellant argued that the trial court had erroneously allowed only twenty
    minutes for defense counsel to make closing jury arguments, which resulted in
    harm because “trial counsel’s closing argument was purposely organized in a
    4
    Appellant argues that the State “was given its full allotment of time” but
    the State argued for approximately twenty-five minutes in total, which was less
    than the thirty-minute allotment granted by the trial court.
    5
    Appellant had not elected to have the jury assess his punishment. See
    Tex. Code Crim. Proc. Ann. art. 27.02(7) (West 2006), art. 37.07, § 2(b) (West
    Supp. 2012).
    4
    manner that would present many critical points in the last few minutes of the
    argument.” The trial court held a hearing on the motion and conceded that it had
    inadvertently deprived Appellant of some of his promised time to conduct closing
    argument:
    As I recall, [co-counsel] . . . used eight minutes of his
    argument. I told [lead counsel] it was his turn, and the Court
    believed that [lead counsel] had 12 minutes left because I am used
    to doing 20 minutes, and I failed to take into consideration that I had
    given an extra ten minutes.
    I warned [lead counsel] of the fact that he had two minutes,
    and I specifically remember [lead counsel] turning and looking at me
    and questioning me if I had - - if it was correct, and I said, yes, it
    was. And he finished in the time that was - - in other words, I did not
    cut him off, as I recall. I allowed him to finish his argument.
    It was at the conclusion of his argument and after the State
    had concluded that I specifically noted that or realized that I had left
    the time out for the Defense, and I informed [lead counsel] of that. I
    don’t know what the exact time was that was shorted, but I will state
    that I did not give the full time allotted per the agreement.
    Lead counsel testified at the new-trial hearing and reiterated that he
    structured his closing argument to place his strongest points—the allegedly
    inconsistent and incredible statements from L.G. and L.R.—“in the latter part of
    the argument” and his argument regarding the admittedly inappropriate text
    message to L.G. in the beginning of his argument to reduce the chance the jury
    would “see the text message, turn off, and not pay any attention to the rest of the
    case.” Lead counsel introduced his argument notes as an exhibit at the hearing
    and stated he estimated that his portion of the argument would have lasted
    twenty minutes if he had been able to follow his outline. Lead counsel specified
    5
    at the hearing the points he was unable to argue because of the time limit. Lead
    counsel also argued that the brief length of the trial belied its complexity:
    [T]he State put in some big exhibits which were writings that were
    seized from [Appellant’s] home with a search warrant. And it was
    like journals. There was a - - some kind of sexual misconduct
    treatment, as a general term, workbook that [Appellant] had filled
    out. Inside that workbook was an expert report talking about his - -
    whether he was - - I can’t remember what the exact terms were, but
    it was, basically, a sex offender evaluation on him. That was in
    evidence.
    The writings were pretty dense. . . . [H]is version of events
    came out through those writings. So while he didn’t testify and it
    didn’t take a lot of time in front of the jury necessarily to go through
    it, there was a lot of detail in there that had to be discussed.
    Lead counsel admitted that he was not aware of the shortened time until after his
    argument was over.       He explained that he did not ask for more than thirty
    seconds “given the judge’s tone.” The State elicited lead counsel’s admission
    that he had failed to track how much time was used while he was arguing and
    that he did not object to the shortened argument time when the punishment
    phase of the trial began.
    The trial court did not rule on the new-trial motion; thus, it was denied by
    operation of law. See Tex. R. App. P. 21.8(c). Appellant now argues that the
    trial court reversibly erred by failing to give him the correct amount of time to
    conduct closing jury argument, which deprived him of the right to trial counsel.
    II. STANDARD OF REVIEW
    A defendant has an inferential, statutory right to present closing argument.
    Tex. Code Crim. Proc. Ann. arts. 36.07–.08 (West 2007); Dang v. State, 154
    
    6 S.W.3d 616
    , 619–20 (Tex. Crim. App. 2005). 6 We review a trial court’s limit on
    the length of closing jury argument for an abuse of discretion, remembering that
    any such limit must be reasonable. 
    Id. However, such
    discretion is “broad.” 
    Id. at 619.
    In determining whether the trial court abused its discretion in limiting
    closing jury argument, we may consider several factors, including               (1) the
    quantity of the evidence, (2) the duration of the trial, (3) conflicts in the testimony,
    (4) the seriousness of the offenses, (5) the complexity of the case, (6) whether
    counsel used the time allotted efficiently, and (7) whether counsel set out what
    issues were not discussed because of the time limitation.            
    Id. at 621.
      The
    amount of time used by the State is not relevant to the abuse-of-discretion
    determination because the proper inquiry is whether defense counsel had
    adequate time given the nature of the case. 43 
    Dix, supra
    note 5, at § 45:5.
    6
    We recognize that a complete denial of counsel’s right to argue to the jury
    implicates a defendant’s constitutional right to counsel. See Herring v. New
    York, 
    422 U.S. 853
    , 864–65, 
    95 S. Ct. 2550
    , 2556 (1975). But it is unclear
    whether a restriction on the length of such argument would implicate
    constitutional as well as statutory concerns. Compare 
    Dang, 154 S.W.3d at 619
    –
    20 (analyzing reasonable time period as statutory entitlement) with 
    id. at 623
    (Meyers, J., concurring) (asserting limitations on argument may violate Sixth
    Amendment). Because we ultimately conclude that the trial court did not abuse
    its discretion, we need not decide whether Appellant’s right to counsel was
    violated by the inadvertent error. See 43 George E. Dix & John M. Schmolesky,
    Texas Practice Series: Criminal Practice & Procedure § 45:5 (3d ed. 2011) (“The
    constitutional approach of the concurring judges [in Dang] would elevate the
    standard used to evaluate the question of whether an improper time restriction
    could be considered harmless.”).
    7
    III. DISCUSSION
    A. PRESERVATION OF ERROR
    The State asserts that because lead counsel failed to object at the time the
    trial court told him he had two minutes left, he forfeited his argument. Indeed, to
    preserve error, a defendant must timely object with the requisite specificity to
    avoid forfeiting the right to complain of the error. See Tex. R. App. P. 33.1(a).
    The purpose of preservation of error is to “provide trial courts or opposing
    counsel with opportunities to prevent or cure errors so as to permit trial
    proceedings to continue to a final conclusion free from attack and reversal on
    appeal.” 43A 
    Dix, supra
    , at § 53:3 (citing Rhett v. State, 
    839 S.W.2d 93
    , 94 (Tex.
    Crim. App. 1992)).
    The trial court stated that it discovered the time error after all arguments
    were concluded, but it is not clear when the trial court informed lead counsel of
    the problem. But lead counsel testified at the new-trial hearing that he realized
    he had not received his full time to argue “when [he] sat down”:
    When I sat down, I looked over at [co-counsel] and said, did I really
    talk for 18 minutes, and he shrugged his shoulders.
    And I vividly remember looking back at the clock, but I had
    made the mistake of not writing down start times on a legal pad,
    which I normally do. So I looked back at the clock and saw what
    time it was, but I couldn’t tell when I had started, so I couldn’t do it.
    So I didn’t realize it for sure until I sat down.
    This case is analogous to cases where counsel specifically asks for more
    time and the trial court immediately denies the request. See, e.g., Johnson v.
    8
    State, No. 01-08-00709-CR, 
    2011 WL 6014218
    , at *6–7 (Tex. App.—Houston
    [1st Dist.] Dec. 1, 2011, no pet.) (mem. op., not designated for publication);
    Barajas v. State, 
    732 S.W.2d 727
    , 729 (Tex. App.—Corpus Christi 1987, pet.
    ref’d). In those situations, counsel is immediately aware that a potential error
    occurred, and a prompt objection is necessary to give the trial court an
    opportunity to address it. See Tex. R. App. P. 33.1(a)(1)(A); Pena v. State, 
    285 S.W.3d 459
    , 464 (Tex. Crim. App. 2009). Likewise, lead counsel was aware
    after he sat down (and presumably while the State was arguing in rebuttal) that
    he had not received his full allotment of time. An objection at this point would
    have allowed the trial court to remedy the inadvertent error at a time when it was
    in a position to do something about it. See Lankston v. State, 
    827 S.W.2d 907
    ,
    909 (Tex. Crim. App. 1992). By failing to timely object when he realized the
    error, any resulting harm has been forfeited. We overrule Appellant’s sole point.
    B. ABUSE OF DISCRETION
    To the extent it could be asserted that Appellant did not forfeit his
    argument, we address abuse of discretion. Appellant argues that the trial court
    abused its discretion and reversibly erred by giving “the State . . . its full allotment
    of time while the Defense was given only approximately twenty-two minutes for
    its entire closing argument.” As we noted above, how much time the trial court
    gave to or how much was used by the State are not the relevant inquiries; we
    must determine whether the trial court’s inadvertent twenty-two-minute limit was
    unreasonable and, thus, an abuse of discretion.
    9
    1. Quantity of Evidence, Trial Duration, and Testimony Conflicts
    Over a period of less than two days, the State called six witnesses,
    including L.G., L.R., and S.A., and Appellant presented no witnesses. L.G. and
    L.R. testified in detail regarding Appellant’s inappropriate behavior, including
    exposing himself to them.      As indicated above, the bulk of Appellant’s trial
    strategy was attacking L.G.’s and L.R.’s credibility by pointing out inaccuracies
    and contradictions in their reports of the details of the offenses. Specifically, L.R.
    admitted that she had previously reported fewer indecent instances than she
    later accused Appellant of committing.        She also stated that she wanted her
    parents to get back together during that time and kept the inappropriate texts
    from Appellant as “evidence.”        L.G. similarly admitted that she failed to
    consistently report every instance Appellant was indecent in her presence.
    Regarding one instance, L.G. conceded that she had previously stated Appellant
    was wearing a towel, while she later averred Appellant was naked. S.A. testified
    that neither L.G. nor L.R. mentioned any inappropriate behavior by Appellant until
    June 2010, which was around the time S.A.’s marriage to Appellant began to
    deteriorate and after S.A. began purposefully separating her assets from
    Appellant’s. Several pieces of evidence admitted at trial showed that Appellant
    had the desire and the opportunity to expose himself to the girls and that he
    admitted to being inappropriate with them several times.
    10
    2. Seriousness of Offenses and Complexity of Issues
    Appellant was charged with six counts of indecency with a child by
    exposure, which subjected him to possible sentences of not more than ten years
    or less than two years. See Tex. Penal Code Ann. §§ 12.34, 21.11(a)(2), (d).
    However, Appellant was eligible for court-ordered community supervision, which
    he received. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C). Although
    the trial court prepared two, separate charges—one for the allegations involving
    L.G. and one for the allegations involving L.R.—the court seemed only to read
    once any duplicative information, such as the required mens rea, offense
    elements, and admonitory instructions. The jury charges instructed the jury on
    each count of indecency and specified what facts they had to find beyond a
    reasonable doubt in order to convict Appellant. Although the underlying facts
    were different for each offense, the required legal elements and definitions were
    the same for each.     However, lead counsel testified that he “did not plan to
    address the jury charge at all” in his closing argument.
    3. Efficient Use of Time
    Before closing argument, lead counsel and co-counsel had agreed that co-
    counsel would use approximately ten minutes of the thirty allowed and that co-
    counsel would focus on attacking S.A. and her role in the dysfunctional family
    dynamic. Lead counsel planned to argue for approximately twenty minutes and
    to attack the inconsistencies in L.G.’s and L.R.’s allegations. Lead counsel made
    an outline of his intended argument, which was admitted into evidence at the
    11
    new-trial hearing. Lead counsel admitted that he began his argument by briefly
    trying to do “an attack dog job” on S.A., which was not part of his outline. He
    explained that he did not believe co-counsel had adequately attacked S.A., which
    was necessary. Lead counsel then proceeded to argue why L.G. and L.R. would
    fabricate the allegations against Appellant: they wanted S.A. and Appellant to
    break up. Lead counsel did not begin to point out specific inconsistencies in
    L.G.’s and L.R.’s allegations until the trial court gave the mistaken two-minute
    warning.   At that point, lead counsel had covered in detail five pages of his
    fifteen-page outline. But lead counsel elaborated that, considering the entirety of
    his argument, he was unable to cover only three pages of his outline based on
    the time limit. Therefore, lead counsel mentioned the information included on
    twelve pages of his fifteen-page outline in the approximately twelve minutes he
    was allowed to argue. This was an efficient use of counsel’s time.
    4. Issues Not Discussed
    The record is detailed as to the factual conflicts that lead counsel could not
    address due to the time limit: (1) L.G. embellished what Appellant did when
    recounting the incidents later for police officers, (2) L.G. said she delayed telling
    S.A. about the incidents because she was mad at S.A., (3) L.R. vacillated on the
    date she told S.A. about Appellant, (4) L.R. never mentioned one incident even
    though L.G. said L.R. was there, (5) L.G. said Appellant forced her to take naked
    pictures of herself but no such pictures were ever found, and (6) L.R.’s report that
    Appellant masturbated while helping her with her homework did not “make any
    12
    sense whatsoever.” It appears most of the legal theories lead counsel included
    in his outline were argued to the jury, although not in the detail he might have
    preferred.
    5. Application
    On the basis of this record, we cannot conclude that the trial court abused
    its discretion by inadvertently limiting Appellant to twenty-two minutes to argue to
    the jury.    The offenses, while serious, were subject to a lesser degree of
    punishment than most felonies.        The multiple counts, while fact intensive,
    essentially became credibility determinations for the jury and, thus, were not
    unduly complicated. The majority of counsel’s desired closing arguments were,
    in fact, made. Further, the “considerable amount of time” the jury deliberated
    suggests that each allegation was carefully considered. Although Appellant was
    convicted of each count, his sentence was suspended. The twenty-two-minute
    limit was not unreasonable; thus, the trial court did not abuse its discretion.
    IV. CONCLUSION
    Having overruled Appellant’s sole point, we affirm the trial court’s
    judgments.
    LEE GABRIEL
    JUSTICE
    PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: October 17, 2013.
    13