Dang, Tuan Anh v. State

• Court: Court of Appeals of Texas
• Decided: June 8, 2006
• Docket: 14-00-00560-CR
• Status: Published

Opinion

Motion for Rehearing Granted in Part and Denied in Part; Reversed and Remanded; Majority and Concurring Opinions of January 24, 2006, Withdrawn and Majority and Concurring Opinions on Remand Following Rehearing filed June 8, 2006

Motion for Rehearing Granted in Part and Denied in Part; Reversed and Remanded; Majority and Concurring Opinions of January 24, 2006, Withdrawn and Majority and Concurring Opinions on Remand Following Rehearing filed June 8, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-00-00560-CR

TUAN AHN DANG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176^th District Court

Harris County, Texas

Trial Court Cause No. 828,575

CONCURRING   OPINION   ON   REMAND

FOLLOWING   REHEARING

The Texas Court of Criminal Appeals, in a plurality opinion, held this court erred in concluding that the trial court did not abuse its discretion=s in limiting the length of closing argument.  Dang v. State, 154 S.W.3d 616, 622 (Tex. Crim. App. 2005).  Accordingly, the Court of Criminal Appeals remanded the cause to this court to conduct a harm analysis.  On remand, we held the error presented here is constitutional error.  Because we could not conclude beyond a reasonable doubt that the error did not contribute to appellant=s conviction, we reversed the trial court=s judgment.  Tex. R. App. P. 44.2(a).  However, the State of Texas contends on rehearing that appellant has forfeited any claim of constitutional error by failing to previously characterize it as error of constitutional magnitude.

The State=s assertion is wholly contrary to the record.  When the trial court first imposed its twenty-minute limit on closing argument, appellant=s counsel immediately objected on the express ground that the limitation would deprive appellant of effective assistance of counselCa right guaranteed by the Sixth Amendment:

THE COURT:  Both sides will have 20 minutes with which to conduct final argument.

MR. DEGEURIN [appellant=s counsel]:  Excuse me, your Honor, what did you say?

THE COURT:  20 minutes.

MR. DEGEURIN:  Judge, there are nine different ways that the State has alleged that he committed the crime.  That=s not sufficient time properly in a capital case to argue the case.  I ask respectfully that we have additional time.  I cannot even talk about the law in that time, much less the facts.

THE COURT:  Your request is denied.  I would remind the lawyers that what you say is not evidence.  They=ve already heard the evidence.  Final argument is just summation, and 20 minutes is plenty of time for a day and a half of testimony.

Bring in the jury, please.

MR. DEGEURIN:  The defendant is entitled to effective assistance of counsel.  That includes a summation to the jury that ties together what was introduced over the course of the trial.  It=s contemplated as being an important part of the trial.  Unlike what you=ve just said, it=s not just words from the lawyer.  It is part and parcel of our due process rights.  So to limit it to where we are unable to even accomplish what we are required by law to do, to render effective assistance of counsel is too restrictive.  In the mostCleast exaggerated words, it is unfair, Judge.

(Emphasis added).

In his motion for new trial, appellant asserted the trial court=s Aunreasonable restriction of the Defendant=s right to present a defense denied [appellant] his constitutional rights to a fair trial and deprived him of effective assistance of counsel.@  (Emphasis added).  To support his motion for rehearing, appellant offered the opinion of an expert witness, Richard Haynes, who testified that under the facts presented here, he did not believe Athat a competent lawyer could adequately discharge his responsibility to his client under the 6^th Amendment in a 20-minute summation to the jury.@  (Emphasis added).

In his initial brief before this court, appellant repeatedly cited the above testimony of Mr. Haynes and his opinion that the trial court=s conduct offended the Sixth Amendment.

In his brief before the Court of Criminal Appeals, appellant summarized his argument, as follows:  AThe trial court abused its discretion in restricting the defense counsel=s closing argument to twenty (20) minutes, which violated the Appellant=s right to assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution.@  (Emphasis added).

Finally, in his brief on remand before this court, appellant again argued, Athe unfair curtailment of argument which occurred in the instant case deprived the Appellant of the full representation of his counsel and thus infringed upon his rights under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution.@  (Emphasis added).

It is disingenuous, at best, to suggest that appellant has not previously objected, appealed, and sought review on the basis of a denial of his constitutional right to effective assistance of counsel.  If fact, in its own brief on remand, the State asked this court to use the standard of review for constitutional error found in Rule 44.2(a) of the Texas Rules of Appellate Procedure.^[1]  Thus, the only argument being asserted for the first time on rehearing following our opinion on remand is the State=s contention that appellant waived his right to characterize the error as Aconstitutional error.@

Moreover, it should make not one whit of difference to our analysis whether appellant=s counsel did or did not expressly link the denial of effective assistance of counsel to the Sixth Amendment.  It may be surprising to some to learn that the court of appeals is not a blind, bilious blob; we have the capacity, like any first year law student, to determine the more fundamental principles of law, at least, and ascertain from whence the right to counsel is derived.  Further, the standard by which we review error is not determined by the parties and is not subject to waiver or forfeiture; rather, it is a question of law to be decided by this court.  Accordingly, I find the State=s Aforfeiture@ argument to be totally specious.

In a more reasoned argument, the State also contends that while the complete denial of argument infringes upon the Sixth Amendment, the mere temporal restriction of argument does not inevitably and necessarily rise to the level of constitutional error.  The State=s assertion is partially correct.  The Sixth Amendment does not guarantee a right to interminable jury argument.  Thus, it is well-established that a trial court is vested with broad discretion in regulating the duration of closing argument.  Hernandez v. State, 506 S.W.2d 884, 886 (Tex. Crim. App. 1974).  Accordingly, reasonable restrictions on the length of argument do not violate the Sixth Amendment right to effective assistance of counsel and, thus, are not error of any kind.

However, when a trial court imposes limits on argument that infringe upon the defendant=s Sixth Amendment right to effective assistance of counsel, the restriction constitutes an abuse of discretion.  Whether a temporal restriction on jury argument is reasonable, i.e., whether it does or does not infringe upon the right to effective assistance of counsel and, thus, is or is not an abuse or discretion, is a fact-specific question that must be determined on a case-by-case basis.

Where there are no conflicting constitutional or statutory guarantees, a trial court=s discretion is absolute.  Thus, a court=s discretion is limited only where it potentially conflicts with a constitutional right, a statutory right, or a procedural rule.  Here, the Court of Criminal Appeals held the trial court abused its discretion in restricting the length of argument.  Because the only basis for finding an abuse of discretion under these facts is an infringement of appellant=s constitutional right to effective assistance of counsel, I believe logic compels the conclusion that the Court of Criminal Appeals has already found, even if not expressly stated, that the error presented here is Aconstitutional error.@

Moreover, the right to present argument in the trial court is guaranteed by the Sixth Amendment.  Herring v. New York, 422 U.S. 853, 865 (1975).  It is further protected by Article I, Section 10 of the Texas Constitution.  Ruedas v. State, 586 S.W.2d 520, 522 (Tex. Crim. App. 1979).  While the error presented here is not Astructural@ in nature,^[2] it does constitute Aconstitutional@ error.^[3]  See Tex. R. App. P. 44.2(a).  When presented with constitutional error, we are obliged to reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.  Tex. R. App. P. 44.2(a).

When counsel has been improperly restricted in presenting a final argument, the difficulty in conducting a harm analysis is that we must speculate on whether counsel could have delivered an argument that might have affected the outcome of the trial.  Here, the State presented a great deal of evidence to establish appellant=s guilt, at least as a party, in the murder of the deceased.  For example, it is undisputed that appellant possessed a firearm.  Moreover, a bullet fired from appellant=s weapon was recovered from the victim=s body.

However, it is also undisputed that appellant was not the only person who was armed with a weapon.  In fact, all but one of the bullets that struck the deceased were allegedly fired from the accomplice=s weapon.  Moreover, it is undisputed that after the victim was killed, appellant and his accomplice both fired into the exterior door of the premises to make it appear that entry was forced.  Whether defense counsel could have made a convincing argument that a bullet fired by appellant through the door of the premises struck the victim=s corpse laying near the door is unknown because he was prevented from developing such an argument.  Whether counsel could have made a persuasive argument that appellant was not a party to the murder is doubtful.  But while it is unlikely the error contributed to the conviction, I cannot say, beyond a reasonable doubt, that it did not.  Thus, under the standard set forth in Rule 44.2(a), I cannot conclude the error was harmless.

The majority also finds the error was not harmless, but concludes the error presented here does not rise to the level of Aconstitutional@ error.  Thus, I must respectfully concur in the result only.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Majority and Concurring Opinions on Remand Following Rehearing filed June 8, 2006.

Panel consists of Justices Hudson, Anderson, and Frost (Hudson, J., concurs in the result only).

Publish C Tex. R. App. P. 47.2(b).

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^[1]  The rule provides:

44.2. Reversible Error in Criminal Cases

 (a) Constitutional Error.   If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

Tex. R. App. P. 44.2(a).

^[2]  See  Neder v. United States, 527 U.S. 1, 8 (1999);  Arizona v. Fulminante, 499 U.S. 279, 309B310 (1991).

^[3]  AConstitutional error@  within the meaning of Texas Rule of Appellate Procedure 44.2(a) is an error that directly offends the United States Constitution or the Texas Constitution.  Fox v. State, 115 S.W.3d 550, 563 (Tex. App.CHouston [14th Dist.] 2002, pet. ref'd).