Ricky Lynn Appelt v. State

• Court: Court of Appeals of Texas
• Decided: October 17, 2013
• Docket: 02-12-00431-CR
• Status: Published

Opinion

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

MEMORANDUM OPINION 1 ------------

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.