Lake v. State

• Decision Date: 08 February 2017
• Docket Number: NO. PD–0196–16,PD–0196–16
• Citation: 532 S.W.3d 408
• Parties: Rodney Dimitrius LAKE, Appellant v. The STATE Of Texas
• Court: Texas Court of Criminal Appeals

532 S.W.3d 408

Rodney Dimitrius LAKE, Appellant

v.The STATE Of Texas

NO. PD–0196–16

Court of Criminal Appeals of Texas.

Delivered February 8, 2017

Paul Francis, Arlington, TX, for appellant.

Helena F. Faulkner, Assistant District Attorney, Fort Worth, TX, Stacey Soule, Austin, TX, for the State.

Keller, P.J., announced the judgment of the Court and delivered an opinion in which Keasler, Hervey and Richardson, JJ., joined.

We must decide whether the denial of closing argument at a community-supervision revocation proceeding is the sort of error that is exempt from a harm analysis. We conclude that it is not, because the Supreme Court has not labeled it as structural. Consequently, we reverse the judgment of the court of appeals and remand the case for a harm analysis.

I. BACKGROUND

A. Trial

A jury found appellant guilty of sexual assault of a child under age seventeen and assessed a sentence of ten years in prison and a $10,000 fine. Upon the recommendation of the jury, sentence was suspended and appellant was placed on community supervision for ten years.¹

The State later filed a motion to revoke community supervision. Appellant pled "not true" to the allegations in the motion. After the parties presented testimony, the following occurred:

[DEFENSE COUNSEL]: Defense rests.

THE COURT: Rest?

[DEFENSE COUNSEL]: Yes, Your Honor.

[PROSECUTOR]: State will close.

[DEFENSE COUNSEL]: Defense closes, Your Honor. Can we make a closing statement when the time comes, Your Honor?

THE COURT: Sir?

[DEFENSE COUNSEL]: Can I make a closing statement when the time comes?

[THE COURT]: I don't need one.

The trial court then found allegations one, two, and five to be "not true" and allegations three and four to be "true." The court revoked appellant's community supervision and imposed the previously assessed sentence.

B. Appeal

One of appellant's complaints on appeal was that the trial court erred by refusing to allow defense counsel to make a closing argument. The State responded that appellant had failed to preserve error. The court of appeals addressed and rejected the State's contention with respect to preservation.² Then, citing Herring v. New York³ and other cases, the court of appeals concluded that the trial court had violated appellant's Sixth Amendment right to the effective assistance of counsel and his state constitutional right to be heard. In a section entitled "Reversible Error Presumed from Denial of Closing Argument," the court of appeals concluded, without elaboration, that, "[b]ecause the error is constitutional and the effect of the denial of closing argument cannot be assessed, the error is reversible without any showing of harm."⁴ The court of appeals reversed the trial court's revocation judgment and remanded the case for a new trial on revocation.⁵

II. ANALYSIS

A. State's Complaint

The State complains that the court of appeals erred in treating the refusal to allow closing argument as "structural error immune from a harmless error analysis" and that the court of appeals's decision "is contrary to decisions of the United State's Supreme Court and this Court defining what constitutes structural error."⁶ The State argues that the United States Supreme Court "has not held that a probationer has a constitutional right to closing argument, much less that any such right to argument is structural." The State claims that, while this Court "seems to have recognized" a state constitutional right to present closing argument in community–supervision revocation proceedings, under Black v. Romano⁷ and Gagnon v. Scarpelli,⁸ there is no federal constitutional right to present closing argument in community-supervision proceedings, and absent a federal constitutional right, there can be no structural error. Relying upon a footnote in Herring v. New York,⁹ the State also suggests that even the denial of a federal constitutional right to present closing argument is not structural error or, at least, not with respect to community-supervision revocation proceedings. The State further contends that the record in this case contains sufficient data upon which to assess whether the denial of closing argument was harmful, and the State concludes, after discussing the record, that the error was harmless beyond a reasonable doubt.

B. Standard for Determining Structural Error

In Cain v. State, we issued a broad mandate that nearly all errors would be subject to a harm analysis, with only limited exceptions as follows: "Except for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error ... is categorically immune to a harmless error analysis."¹⁰ As the standard suggests, only federal constitutional errors can be "structural," though most federal constitutional errors are not structural.¹¹ Subsequent cases have reaffirmed that we treat error as "structural" only if the Supreme Court has labeled it as such.¹²

Even when an error that is not structural under Cain seems to defy proper analysis or the data seems to be insufficient to assess harm, an appellate court is "obligated to conduct a thorough analysis to determine the extent of harm caused by this error before reversing the conviction."¹³ For federal constitutional error that is not structural, the applicable harm analysis requires the appellate court to reverse unless it determines beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment.¹⁴ If, after such analysis, the harm of the error simply cannot be assessed, then "the error will not be proven harmless beyond a reasonable doubt," but "appellate courts should not automatically foreclose application of the harmless error test."¹⁵

C. Not Labeled Structural

1. The Error at Issue is Herring Error

In Herring v. New York, the Supreme Court held that the right to the assistance of counsel guaranteed by the Sixth Amendment was violated when a trial court refused to allow counsel to make a closing argument at the guilt phase of trial.¹⁶ Prior precedent from this Court indicates that the refusal to allow defense counsel to make a closing argument at a community-supervision revocation proceeding is Herring error.¹⁷

2. Herring Did Not Label the Error Structural

Herring addressed only whether a constitutional violation occurred; it did not address whether to apply a harm analysis, and it did not cite Chapman v. California,¹⁸ the seminal case establishing the federal constitutional harm standard.¹⁹ Concluding that New York denied the defendant "the assistance of counsel that the Constitution guarantees," the Court vacated the case and remanded "for further proceedings not inconsistent with this opinion."²⁰ Herring made a number of statements about the importance of closing argument,²¹ and the Court suggested that it was not appropriate for the trial court to determine whether argument could potentially affect the outcome of the proceedings.²² But none of these statements, which were all about whether a trial judge erred in failing to permit closing argument, speak to whether the error is immune from a harm analysis. So, even recognizing that Herring was decided before the term "structural" came into usage,²³ nothing in that opinion can be construed as labeling the error it describes as structural.

This is true even though several of the federal circuits have read Herring as saying that error in denying closing argument is immune from a harm analysis.²⁴ The Supreme Court has only once come close to expressly addressing whether any of these lower courts are correctly reading Herring on this issue. In Glebe v. Frost, addressing the Ninth Circuit's contention that the denial of closing argument is structural error, the Supreme Court skirted the question by distinguishing a restriction on argument from the complete denial of argument: "According to the Ninth Circuit, Herring further held that this denial amounts to structural error. We need not opine on the accuracy of that interpretation. For even assuming that Herring established that complete denial of summation amounts to structural error, it did not clearly establish that the restriction of summation also amounts to structural error."²⁵ Given the Supreme Court's silence on the matter when the issue was argued, and our own reading of Herring, we cannot agree with those courts that hold that Herring labeled the error as structural.

2. Subsequent Supreme Court Decisions Did Not Label the Error Structural

If Herring does not assign the "structural" label to the error, do subsequent Supreme Court cases? The Supreme Court has stated that only "a very limited class" of errors is structural, and it has not included Herring error when it has listed examples of structural error.²⁶

The total denial of counsel at trial is listed as an example of structural error,²⁷ but the Court has said that a violation of the right to counsel is "subject to harmless-error analysis ... unless the deprivation, by its very nature, cannot be harmless."²⁸ A violation of the right to counsel that merely affects the admission of evidence, for example, is subject to a harm analysis.²⁹ To be immune from a harm analysis, a violation of the right to counsel must "pervade the entire proceeding."³⁰ Whether the denial of closing argument at a stage of trial is the sort of error that "pervades the entire proceeding" is a question the Supreme Court has not answered.

Appellant claims that Herring error was recognized as exempt from a harm analysis in United States v. Cronic.³¹ In Cronic, the Supreme Court cited Herring as an example of when prejudice is presumed for Sixth Amendment purposes.³² Prejudice is a component of an ineffective assistance of counsel violation under the Sixth Amendment.³³ To even establish the existence of constitutional error as a result of ineffective assistance, a defendant must generally show prejudice.³⁴ But there are some situations involving the absence of counsel or government interference with counsel's representation in which a...