Alfredo Torres v. State ( 2009 )

NUMBER 13-08-220-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALFREDO TORRES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Yañez

After a bench trial, the trial court found appellant, Alfredo Torres, guilty of aggravated assault. ⁽¹⁾ Appellant was sentenced to seven years' imprisonment. In a single issue, appellant contends that the trial court violated his constitutional rights by denying him an opportunity to present a closing argument. We affirm.

I. Background

Ernesto Torres, Mary Sanchez, Mary Talerico , and appellant were residing at Maria Torres's home. On May 30, 2007, the men were outside drinking beer. At some point, Ernesto and appellant began to argue. According to Ernesto, appellant went to his truck and returned with a knife. Ernesto testified that when he asked appellant what he was going to do with the knife, appellant stated that he was going to cut up Ernesto. Appellant then allegedly attacked Ernesto with the knife. Ernesto stated that Talerico pleaded with appellant to leave him alone.

Talerico began screaming, and Maria and Sanchez ran outside where they found Ernesto covered in blood with cuts to his face. Lieutenant Hollis Bowers, the officer on call, testified that he found Ernesto, who was very intoxicated, bleeding from cuts to his cheek and nose. Ernesto told Lieutenant Bowers that he had fallen down. However, Bowers testified that Ernesto's injuries were consistent with being cut, and inconsistent with falling down. Ernesto said that he initially told the police that he had fallen down to protect appellant. According to Ernesto, he had not actually seen appellant cut him, but saw appellant with a knife.

After each side rested, appellant asked the trial court, "May I have argument, Your Honor?" The trial court replied, "I don't need argument. I heard the case, gentlemen." Appellant did not object to the trial court's response. The trial court found appellant guilty of aggravated assault and assessed punishment at seven years' imprisonment. This appeal ensued.

II. Discussion

By his sole issue, appellant contends that the trial court violated his right to assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution by not allowing him to make a closing argument. ⁽²⁾

The trial court abuses its discretion by denying counsel the right to make a closing argument. ⁽³⁾ However, in order to preserve error for our review, appellant must not only have notified the trial court that he wished to make a closing argument and be refused that opportunity, but he must have made a timely objection to the trial court's denial of his request. ⁽⁴⁾ However, when the trial court informed appellant that it did not "need" closing argument, appellant remained silent and did not make a timely objection to the trial court's decision. Therefore, because appellant did not object to the trial court's refusal to allow him to present closing argument, he did not preserve error for our review. ⁽⁵⁾ We overrule appellant's sole issue.

III. Conclusion

The trial court's judgment is affirmed.

LINDA REYNA YAÑEZ,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 6th day of August, 2009.  

1. See Tex. Penal Code Ann. § 22.02 (a)(2) (Vernon Supp. 2008).

2. See U.S. Const. amend. VI; Tex. Const. art. I, § 10.

3. Ruedas v. State, 586 S.W.2d 520, 524 (Tex. Crim. App. 1979).

4. See Foster v. State, 80 S.W.3d 639, 640-41 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also Tex. R. App. P. 33.1; Anselin v. State, 72 Tex. Crim. 17, 160 S.W. 713 (1913) (providing that an appellant can waive "the right of being heard by himself or counsel, or both").

5. See Foster, 80 S.W.3d at 640-41.