Curtis Lynn Jolly v. State

AFFIRM; and Opinion Filed October 12, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00569-CR
No. 05-18-00570-CR
CURTIS LYNN JOLLY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause Nos. 068168 & 068348
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Brown
In this appeal, Curtis Lynn Jolly contends the trial court abused its discretion by not
allowing him to present closing argument at the hearing on the State’s motions to revoke his
community supervision. Because appellant did not preserve this complaint for appellate review,
we affirm the judgments revoking his community supervision.
In July 2017, appellant pleaded guilty to one count of first-degree felony arson and three
counts of second-degree felony arson. In accordance with a plea bargain agreement, the trial court
assessed appellant’s punishment in each case at ten years’ confinement, suspended the sentences,
and placed appellant on community supervision for six years. In February 2018, the State moved
to revoke appellant’s community supervision. The State alleged appellant violated the terms and
conditions of community supervision by failing to seek continued counseling and possessing
accelerants in his dwelling.
At the revocation hearing, appellant pleaded not true to the allegations in the motions to
revoke. Three witnesses testified. At the conclusion of the testimony, the following occurred:
[Prosecutor]: State rests.
[Defense Counsel]: Rest, subject to final argument, Judge.
[Prosecutor]: Close.
[Defense Counsel]: Close, subject to final.
THE COURT: Based upon the evidence presented then, the Court’s going
to find that the evidence is sufficient to establish that the defendant violated the
terms and conditions of his probation as set forth in the motions. Based upon that
finding, I will revoke Mr. Jolly’s probation and will assess his punishment at 10
years TDC.
The proceeding ended immediately following the judge’s pronouncement of sentence.
In a single issue, appellant contends the trial court abused its discretion in denying his
attorney the right to make a closing argument. Defense counsel is entitled to make a closing
argument at a revocation hearing. See Ruedas v. State, 586 S.W.2d 520, 523–24 (Tex. Crim. App.
[Panel Op.] 1979). A trial court abuses its discretion by refusing to allow closing argument on the
question of whether community supervision should be revoked. See id. at 524; Foster v. State, 80
S.W.3d 639, 640 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In order to preserve such a
complaint for appellate review, however, a defendant must not only notify the trial court of his
desire to make a closing argument, the court must refuse that opportunity and then the defendant
must make a timely objection to the court’s ruling. See TEX. R. APP. P. 33.1(a); Foster, 80 S.W.3d
at 640. Here, even if defense counsel’s comments that he rested and closed “subject to final
argument” could be considered an express request for closing argument, appellant did not object
to the fact that the trial court proceeded to sentence him without hearing closing arguments. As
such, this complaint is not preserved for our review. See Habib v. State, 431 S.W.3d 737, 741
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(Tex. App.—Amarillo 2014, pet. ref’d) (trial court impliedly denied defendant’s “equivocal
request” for closing argument, but defendant did not object to implied ruling and failed to preserve
error). Appellant attempts to distinguish his case from Habib by arguing that, unlike that case, his
request for closing argument was unequivocal. Appellant ignores the fact that, like Habib, he did
not object to the court’s failure to allow closing argument. We overrule appellant’s sole issue.
We affirm the trial court’s judgments.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
180569F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CURTIS LYNN JOLLY, Appellant On Appeal from the 59th Judicial District
Court, Grayson County, Texas
No. 05-18-00569-CR V. Trial Court Cause No. 068168.
Opinion delivered by Justice Brown,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 12th day of October, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CURTIS LYNN JOLLY, Appellant On Appeal from the 59th Judicial District
Court, Grayson County, Texas
No. 05-18-00570-CR V. Trial Court Cause No. 068348.
Opinion delivered by Justice Brown,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 12th day of October, 2018.
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