Habib v. State

• Decision Date: 30 April 2014
• Docket Number: Nos. 07–13–00090–CR, 07–13–00094–CR.,s. 07–13–00090–CR, 07–13–00094–CR.
• Parties: Ananda Chermion HABIB, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

431 S.W.3d 737

Ananda Chermion HABIB, Appellant

v.The STATE of Texas, Appellee.

Nos. 07–13–00090–CR, 07–13–00094–CR.

Court of Appeals of Texas,

Amarillo.

April 30, 2014.

John Bennett, Amarillo, for Appellant.

Katherine L. Levy, Asst. Dist. Atty., Amarillo, for the State of Texas.

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Ananda Chermion Habib, appeals the trial court's decision to adjudicate him guilty of the offenses of stalking ¹ and violation of a protective order,² as well as the resulting ten-year sentences of incarceration and $5,000 fine in each case.³ We will modify the judgments and affirm as modified.

Factual and Procedural Background

Appellant was initially charged with the offenses of stalking and violation of a protective order as a result of incidents occurring in 2009. Appellant and the State entered into a plea bargain agreement in March of 2011, which was accepted by the trial court, by which appellant pled guilty to the offenses and was placed on eight years' deferred adjudication community supervision, and fined $500 in each case.

In November of 2011, the State filed motions to proceed to adjudication of guilt in both cases based on nineteen alleged violations of community supervision. In December of 2011, appellant was extradited from Smith County to Potter County, where he was declared indigent and appointed counsel. In August of 2012, appellant was extradited from Tom Green County to Potter County. The State twice amended its motions to proceed to adjudication and, ultimately, alleged that appellant had committed thirty violations of the terms and conditions of his community supervision.

The adjudication proceeding was called on March 25, 2013. The State waived fifteen violations, appellant pled true to nine violations, and appellant pled not true to six violations. The State presented significant evidence of appellant's violations of the terms and conditions of his community supervision. In response, appellant testified on his own behalf. Through his testimony, appellant admitted many of the violations alleged by the State. However, by his testimony, appellant offered explanations for those violations. Immediately following appellant's testimony, appellant's counsel stated, “[r]est and close, and then give argument, if we could, Your Honor.” However, without hearing argument, the trial court found that appellant violated fifteen terms and conditions of his community supervision, adjudicated him guilty of both underlying offenses, and sentenced him to ten years' incarceration and $5,000 fine in each case, but further ordered that the sentences run concurrently.

Subsequently, the trial court entered judgments which indicated that court costs would be assessed “as per attached bill of costs.” The bill of costs in 07–13–00090–CR charges appellant a $5,000 fine, $549.39 for sheriff's fees, and $3,222.24 in “Attorney Fee(s)—Probation Revocation.” The bill of costs in 07–13–00094–CR charges appellant another $5,000 fine and $445 more for sheriff's fees.

By five issues, appellant appeals. By his first issue, appellant contends that he was denied the effective assistance of counsel when his attorney requested but was not given the opportunity to present closing argument. Appellant's second issue contends that counsel's failure to present closing argument constitutes a constructive deprivation of counsel. Appellant's third issue contends that the bill of costs cumulated the fine when the trial court ordered them concurrent. By his fourth issue, appellant contends that the evidence is insufficient to sustain the assessment of attorney's fees. Finally, by his fifth issue, appellant contends that the evidence was insufficient to sustain the assessment of sheriff's fees.

Issues One & Two: Denial of Closing Argument

Appellant's first two issues challenge trial counsel's failure to present a closing argument or to, at least, preserve error in the trial court's denial of appellant's request for closing argument. Appellant's first issue is couched in terms of ineffective assistance of counsel. However, review of appellant's argument reveals that he is essentially contending that the trial court reversibly erred by not affording appellant an opportunity to close after appellant requested such an opportunity. The State responds that, after requesting closing argument, appellant abandoned and waived his request. By his second issue, appellant contends that, because trial counsel felt that closing argument would be beneficial but failed to either obtain such argument or preserve the trial court's erroneous denial of argument, appellant was constructively deprived of counsel at a critical stage of the trial. The State responds that trial counsel had sound strategic reasons for not pursuing closing argument.

A trial court abuses its discretion by denying counsel the right to make a closing argument. See Ruedas v. State, 586 S.W.2d 520, 524 (Tex.Crim.App.1979); Chapman v. State, No. 07–07–00419–CR, 2008 Tex.App. LEXIS 6574, at *4–5 (Tex.App.-Amarillo Aug. 27, 2008, no pet.) (mem. op., not designated for publication). However, to preserve error in the denial of closing argument, appellant must have notified the trial court of the desire to present closing argument, the trial court must have refused that request, and appellant must have asserted a timely objection to the trial court's ruling denying closing argument. Torres v. State, No. 13–08–00220–CR, 2009 Tex.App. LEXIS 6122, at *3 (Tex.App.-Corpus Christi Aug. 6, 2009, no pet.) (mem. op., not designated for publication); Crane v. State, No. 02–08–00122–CR, 2009 WL 214195, at *1, 2009 Tex.App. LEXIS 589, at *2 (Tex.App.-Fort Worth Jan. 29, 2009, no pet.) (per curiam) (mem. op., not designated for publication); Chapman, 2008 Tex.App. LEXIS 6574, at *5; Dangerfield v. State, No. 08–02–00115–CR, 2003 WL 21359364, at *1, 2003 Tex.App. LEXIS 4992, at *3 (Tex.App.-El Paso June 12, 2003, pet. ref'd); Foster v. State, 80 S.W.3d 639, 640 (Tex.App.-Houston [1st Dist.] 2002, no pet.); seeTex.R.App. P. 33.1.

In the present case, appellant made an equivocal request for closing argument which, by proceeding to adjudicate and sentence appellant, the trial court impliedly denied. However, appellant did not voice an objection to the trial court's implied ruling denying appellant closing argument. As such, under the authority cited above, appellant has failed to preserve any error in the trial court's denial of closing argument.

Appellant also appears to argue that the trial court impliedly denied appellant's request for closing argument in such a manner that appellant was denied the opportunity to object to the ruling. When a trial court makes a ruling and there is no opportunity to object, a defendant must timely file a motion for new trial. See Howard v. State, Nos. 01–12–00335–CR, 01–12–00336–CR, 2013 WL 772953, at *2, 2013 Tex.App. LEXIS 1874, at *5 (Tex.App.-Houston [1st Dist.] Feb. 28, 2013, no pet.) (mem. op., not designated for publication); Foster, 80 S.W.3d at 641. A timely filed motion for new trial affords a defendant the opportunity to object to the denial of closing argument if such an opportunity was not available during trial. See Gonzalez v. State, 301 S.W.3d 393, 401 (Tex.App.-El Paso 2009, pet. ref'd). Appellant did not file a motion for new trial in either case.⁴ As such, we conclude that appellant has wholly failed to preserve any error in the trial court denying appellant's request for closing argument. We overrule appellant's first issue.

By his second issue, appellant contends that, because trial counsel expressed a desire to present closing argument, his failure to present closing argument or to preserve error in the trial court's denial of closing argument constitutes a constructive deprivation of counsel. The State responds that, because there were sound strategic reasons for not pursuing closing argument, appellant was not deprived of the effective assistance of counsel.

Both the United States and Texas Constitutions guarantee a defendant the opportunity to present closing argument. SeeU.S. Const. amend. VI; Tex. Const. art. I, § 10; Herring v. New York, 422 U.S. 853, 858–59, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Ruedas, 586 S.W.2d at 522. The denial of counsel at such a critical stage of trial leads to a presumption of prejudice. United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). However, as discussed above, the right to present closing argument can be waived by a defendant's failure to request argument or a failure to object to the denial of a request. Chapman, 2008 Tex.App. LEXIS 6574, at *5; Foster, 80 S.W.3d at 640; seeTex.R.App. P. 33.1. Closing argument is an area where trial strategy is most evident. Flemming v. State, 949 S.W.2d 876, 881 (Tex.App.-Houston [14th Dist.] 1997, no pet.). An inquiry into counsel's strategy should be made only when there is no plausible strategic basis for his actions. Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980) (en banc).

Appellant contends that, because trial counsel requested closing argument, he “clearly felt such argument might be beneficial.” However, because the record is silent as to counsel's strategy regarding closing argument, appellant fails to overcome the presumption of effective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003). So long as there is any plausible strategic reason for trial counsel not to present closing argument or to object to the trial court's denial of closing argument, we will not conclude that appellant was constructively denied the effective assistance of counsel. See Ex parte Burns, 601 S.W.2d at 372; Brown v. State, No. 04–06–00039–CR, 2007 WL 671330, at *3–4, 2007 Tex.App. LEXIS 1699, at *8–9 (Tex.App.-San Antonio Mar. 7, 2007, no pet.) (mem. op., not designated for publication). A review of the record suggests that...