Anastasia Lynette Collum v. State

Opinion

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

MEMORANDUM OPINION1

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.

4 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