Kirven, Timothy Ray v. State

In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-01-01219-CR

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TIMOTHY RAY KIRVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 99CR0364

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MEMORANDUM OPINIONThis is an appeal from a community supervision revocation proceeding. The trial court found that appellant (1) committed an assault, (2) failed to complete community service, and (3) failed to attend domestic violence/anger control classes. The trial court revoked appellant’s community supervision and sentenced him to 10 years’ confinement. In two points of error, appellant contends that (1) the evidence was insufficient to support the finding that he committed an assault, and (2) the trial court erred when it failed to hear closing argument regarding punishment. We affirm.  

BackgroundA jury found appellant guilty of aggravated assault with a deadly weapon and assessed punishment at 10 years’ confinement, with a recommendation that appellant be placed on community supervision. Accordingly, appellant was placed on 10 years’ community supervision. Less than one year later, the State filed a motion to revoke community supervision alleging, inter alia, that appellant failed to satisfy three conditions of his community supervision by (1) not performing community service, (2) not attending domestic violence/anger control classes, and (3) committing the offense of assault. Thereafter, the trial court conducted a hearing on the State’s motion.

          During the hearing, at the conclusion of appellant’s testimony, defense counsel passed the witness, and the State indicated that it had no questions. Defense counsel then stated, “That’s all we have.” The trial court then found that appellant failed to satisfy the three conditions as alleged by the State, revoked appellant’s community supervision, and sentenced him to 10 years’ confinement.   

Waiver

          On appeal, appellant challenges the finding that he committed an assault, but does not challenge the finding that he committed two other technical violations of his community supervision. Thus, appellant has waived appellate review of the two unchallenged violations. Because a finding that appellant violated any one condition of community supervision is sufficient to sustain the revocation, we need not address his challenge to the assault finding. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

          We overrule appellant’s first point of error.

Closing Argument

          In his second point of error, appellant contends that the trial court violated his constitutional right to counsel by not hearing closing argument prior to revoking his community supervision. The right to closing argument is crucial to the adversarial fact-finding process and is no less critical at a revocation hearing. Ruedas v. State, 586 S.W.2d 520, 524 (Tex. Crim. App. 1979); Foster v. State, 80 S.W.3d 639 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The trial court abuses its discretion in denying counsel the right to make a closing argument. Ruedas, 586 S.W.2d at 524; Foster, 80 S.W.3d at 640.

          In Ruedas, defense counsel explicitly requested argument and was refused. Ruedas, 586 S.W.2d at 522. In this case, however, no such request was made, and the trial court did not refuse to allow appellant to make closing arguments or present evidence. To the contrary, after presenting appellant’s testimony, defense counsel stated, “That’s all we have.” In order to preserve error for review, appellant must notify the trial court that he wants to make a closing argument, the trial court must refuse that opportunity, and then appellant must make a timely objection to the trial court’s ruling. Tex. R. App. P. 33.1(a); Cf. Ruedas v. State, 586 S.W.2d at 522 (holding trial court abused its discretion in refusing defendant’s request for closing argument when defense counsel explicitly requested it); Foster, 80 S.W.3d at 640-41. In the instant case, no such request was made, and appellant has not preserved error for our review.

          We overrule appellant’s second point of error.Conclusion

          We affirm the judgment of the trial court.

                                                                        Adele Hedges

                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

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