Almaguer, Melissa, PD-0474-15

Background

Melissa Almaguer pleaded guilty in Jan 2013 to possession (<1 g) and received three years deferred adjudication.
State filed a motion to adjudicate (Feb 2014) alleging multiple technical violations and a new misdemeanor theft; an adjudication hearing occurred May 30, 2014.
After the evidence closed the trial judge announced he would sentence Almaguer to two years in state jail and said he did not need argument; defense counsel replied, “No argument, Your Honor?” and then “Okay.”
The court adjudicated guilt, revoked probation, and assessed the two‑year sentence; Almaguer appealed, arguing the court denied her counsel the right to closing argument and that error was preserved.
The Second Court of Appeals affirmed, holding Almaguer failed to preserve her complaint because counsel did not expressly request to make argument and allegedly acquiesced.
The petition for discretionary review asks the Court of Criminal Appeals to resolve the conflict among recent Fort Worth/Amarillo opinions on preservation and the presumed constitutional error of denying final argument.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court denied Almaguer the right to present closing argument	Almaguer: counsel’s question (“No argument, Your Honor?”) was an unequivocal request to make closing argument; denial violated Sixth Amendment due process and right to be heard	State: counsel merely asked if there would be arguments and did not specifically request to make one	Court of Appeals: defense did not preserve the complaint; counsel’s remarks were not a clear request and response “Okay” amounted to acquiescence, so issue forfeited
Whether counsel preserved error over denial of closing argument	Almaguer: Rule 33.1 does not require formal exception; a timely request and an explicit denial suffices to preserve	State: preservation requires a clear request and an objection to the denial	Court of Appeals: preservation not met; contrasted with Fort Worth opinion in Lake which held a request + denial preserves error (court did not follow Lake)
Whether sentence/punishment considerations were preserved and lawful	Almaguer: immediate sentencing without argument suggested failure to consider full range and impartial consideration	State: appellant failed to object at allocution or move for new trial, so sentencing complaints forfeited	Court of Appeals: sentencing complaints not preserved; affirmed adjudication and sentence
Whether identity/new‑offense proof sufficed (directed verdict issue)	Almaguer: State failed to prove identity linking her to the new offense	State: probation officer testimony, judicial notice of file, same judge and same counsel supported identity; any single proven violation suffices	Court of Appeals: evidence by preponderance supported identity and violations; denial of directed verdict proper

Key Cases Cited

Jefferson v. State, 803 S.W.2d 470 (Tex. App.—Dallas 1991, pet. ref’d) (trial court action effectively excluding evidence relevant to punishment can deny due process)
Fielding v. State, 719 S.W.2d 261 (Tex. App.—Dallas 1986, pet. ref’d) (discussing exclusion of evidence at punishment)
Ruedas v. State, 586 S.W.2d 520 (Tex. Crim. App. 1979) (denial of closing argument at revocation implicated due process)
Herring v. New York, 422 U.S. 853 (U.S. 1975) (Supreme Court treatment of closing‑argument and confrontation issues relevant to counsel’s role)
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (courts should avoid slavish adherence to formulaic preservation language)
Bennett v. State, 235 S.W.3d 241 (Tex. Crim. App. 2007) (magic words not required; substance governing preservation)
Bedolla v. State, 442 S.W.3d 313 (Tex. Crim. App. 2014) (party must let trial judge know what is requested clearly enough for judge to act)
Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003) (standards on preservation and clarity of complaints)
Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) (historical discussion of identification burdens in revocation proceedings)