Dang v. State

file opportunity Sanchez and had appropriate

take remedial action. Bell’s actions caused Gonzalez’s Harrison opportunity. a business

lose hold trial court could not have

We

correctly granted summary judgment

favor of Bell and Gonzalez Harrison’s action

reliance-based causes of because failed to negate

Bell Gonzalez of reliance as a

element matter of law. 166a(c). Accordingly, Tex. R. Civ. P. summary judg-

we reverse and remand the Gonzalez, pertains as it

ment to Bell Coates, it pertains Greig

but affirm as it Jacks,

Tommy Jacks and Mithoff & L.L.P. DANG, Appellant,

Tuan Anh Texas, Appellee.

The STATE of

No. 14-00-00560-CR. Texas,

Court Appeals (14th Dist.).

Houston 31, 2002.

Oct.

Rehearing March Overruled Houston, DeGeurin, appellant. for

Mike Houston, appel- Rogers, Donald W. lee. ANDERSON,

Panel consists Justices HUDSON, and FROST. OPINION

MAJORITY FROST, Justice. KEM THOMPSON fifteen-year-old juvenile A court certified as an adult. Dang Tuan Anh appel- transferred juvenile After the court, he was indicted lant to the trial jury found murder. The capital tried for the trial court as- appellant guilty, at confine- punishment appellant’s sessed for life. On penitentiary inment the state the trial court asserts appeal, appellant (1) his oral suppressing in not erred: allegedly it was taken because statement (2) Code; Family Texas in violation of the instructions; requested refusing limiting closing affirm. minutes. We twenty Background and Procedural I. Factual 5, 1999, Binh Nguyen, January On 4:00 a shift from working was complainant, at a busi- as a machinist midnight p.m. fa- Dang, appellant’s Son ness owned Pham, at machinist another ther. Tan business, begin his shift Dang’s imme- Richards shop parking lot. Officer employee in the midnight. Typically, the to move across the diately them advised kept the door locked from building was not secure. the scene street because for the and would unlock the door inside within a few officers arrived Other arriving employee. Pham arrived next perimeter around up minutes and set on the p.m. at 11:45 and knocked work thereafter, SWAT offi- building. Shortly Binh Pham noticed door. did answer. of the scene. charge and took cers arrived had holes around it. Peer- the doorknob door, a hole in the Pham saw ing through appellant and apprehended Police later head to- lying Binh on the floor with his building. Offi- Nguyen1 Linda outside home, Pham went called ward the door. cartridge cers recovered semiautomatic (the owner), him to Dang shop and asked pocket pants front from arrived, Dang come to his house. When casings shell empty ten nine-millimeter Dang him had Pham told what he seen. police placed pocket. from his back and then the two of them called the separate police Linda in appellant and shop. went to the occurred sometime between cars. This thereafter, Shortly 1:30 a.m. and 1:50 a.m. Kerr Richards of the Houston Officer Quynh Tran and Ken- police captured from the Department Police received a call separate placed neth Tran2 and them police dispatcher January at 12:11 a.m. on police cars. 6, 1999, go shop. to the machine When approached building, he saw that Sergeant investigators, Homicide G.J. open.

side door was As he maneuvered Chisolm, Henry arrived Novak and Officer through yard, body Richards noticed scene at 3:00 a.m. and 3:30 at the crime lying inside the front section of the build- a.m., No one had access respectively. ing. immediately Richards advised a.m., building until 3:10 when SWAT ambulance. dispatcher to send control of the crime relinquished officers Through open doorway, the same Richards Linda, Quynh, scene. Novak interviewed walking also observed an Asian female Kenneth, as each appellant separately and toward the body from the location of the inter- separate police in a car. Novak sat building, east side of the and two Asian ap- a.m. At last at 3:45 appellant viewed ransacking in males the back section some a.m., had these 4:00 Novak proximately to see into desks. Richards was not able to the homi- transported individuals four building. the front section of the Con- Travis downtown cide office at 1200 person might cerned that a fourth Houston. Richards part budding,

the front of the a.m., Bloyd met Sergeant At Ted 5:45 help. car to call for returned to his Bloyd at the homicide office. appellant retreated, gun three As he Richards heard fami- in the homicide office’s appellant left building. coming shots from inside the of Linda ly room to attend the interviews fire, Richards dove Believing he was under on information he Quynh. and Based Richards then saw behind his car. interviews, Bloyd consid- learned those to the door and an Asian male come side a.m., At 7:20 appellant suspect. ered it pull shut. and family room Bloyd returned Bloyd a couch. asleep on Dang, appellant found danger, of the Son Unaware him that he informed owner, appellant into the woke and pulled and Tan Pham shop are not re- Quynh and Kenneth Tran Nguyen complainant Binh Tran 1. Linda and the lated. Nguyen are related. Bloyd entry. Appellant then a forced said that when suspect. was now considered a door, magistrate Quynh shooting to a for the ad- holes in the appellant took he saw legal warnings. Very ... I if I thought, ministration of his he “This is fun wonder thereafter, re- Bloyd appellant soon Appellant can hit it.” then used fa- office, where, to the homicide gun turned to at the door. ther’s shoot a.m., of his Bloyd appellant 8:36 reminded money, search for After an unsuccessful appellant’s and recorded legal warnings Quynh to appellant and went back their ten oral statement. The interview ended get a at the apartment to crowbar. Once minutes later. they Nguyen told Linda what apartment, trial, appellant’s At the State offered friend, they had done and called another testimony and the appellant’s confession Kenneth, Quynh Kenneth Tran. told ‘We the night other witnesses to show that on somebody. go shot and killed We need friend, murder, and his appellant shop.” back to the Kenneth noticed that Tran, appellant’s father’s Quynh went crying appellant calmly Linda was was shop money machine to steal believed pistol down a a towel. Believ- wiping with Quynh, armed with a premises. be on him his friends would reward with pistol, appellant at- nine-millimeter money, agreed Kenneth fair share through to enter a side door rou- tempted and act a lookout shop to return to the as tinely by employees, used but soon discov- appellant, Quynh, and Linda while However, Binh the door was locked. ered for the elusive premises searched the Recog- Nguyen working shop. Linda, money. It was while cache of son, appellant owner’s Binh nizing as the shop Quynh, appellant were permitted unlocked the door and evening time that that Officer the second youths building. to enter the scene. Richards arrived duties, Quynh Binh As returned to his appellant’s motion The court denied Binh Binh told to kill because suppress the oral statement had they would tell father been 6,1999. January at 8:36 a.m. on made shop. Quynh pistol at the handed the that statement as evi- State introduced claims he could not appellant. Appellant capital trial for during appellant’s dence machinist, so he bring himself to shoot the requested jury in- Appellant murder. safety gun, pulled the on the the engaged of regarding the voluntariness structions gun jam- the had trigger, Quynh and told alleged regarding oral statement and his tests indicated Although med. ballistics Family by violations of Texas Code pistols, Binh was shot with two different charged jury police. The trial court in his confession that appellant stated appellant’s regarding the voluntariness of event, any Binh Quynh alone shot Binh. appellant’s refused oth- oral statement but times. was shot several jury instructions. proposed er murder, capital of appellant convicted that, immediately after claims Appellant appellant’s punish- trial court assessed murder, Quynh quickly and he in peniten- ment at confinement the state They discovered premises. searched the tiary for life. pistol appel- a nine-millimeter and took shop, but could kept lant’s father II. Issues Presented leaving premis- money.

find no While capital his conviction for es, Challenging the side Quynh fired several rounds at murder, following is- appellant asserts appear to make it attempt door in an appeal: on robbery by initiated sues murder and had been discretion (1) trial court abuse its discre- Did the Did the trial court abuse its sup- denying appellant’s motion motion to by denying appellant’s tion unnecessary alleged press based on an statement, allegedly his oral suppress 52.02(a) delay of the Texas under section in of sections 52.02 obtained violation Family Code? Family Code? and 52.025 of the Texas issues); (first, second, and third issue, claims the In his first its discretion overrul- trial court abused refusing Did the court err oral state- suppress his motion to requested jury instructions it was obtained violation ment because concerning compliance with sections 52.02(a) Family Texas of section 52.025(d) 52.02(b)(1), 52.02(a), section, are this once children Code. Under (fourth issue); Family Texas Code? custody, police must take police (3) Did the trial court abuse its discre- juve- unnecessary delay to them without limiting closing argument tion in processing nile office. See Tex. Fam.Code (fifth issue) 52.02(a). twenty § who was fifteen Appellant, minutes? time, argues at the

years old ju- him a unnecessarily delayed taking Suppress III. Motion To office based on the processing venile Oral Statement him in the they of time detained Generally, a trial we review car at the scene of the murder. on a ruling suppress court’s motion to observing legisla- that the begin by We an under abuse-of-discretion standard of designed special procedures ture has State, review. Oles v. 993 S.W.2d dealing specific created a nomenclature However, (Tex.Crim.App.1999). juvenile suspects. juvenile, A for ex- with case, suppression the resolution of the is “arrested,” technically cannot be ample, not turn sues does on evaluation ... “may custody be taken into but he demeanor, credibility and and the facts the laws of arrest.” Tex. Fam. pursuant to relating suppression are not issues 52.01(a)(2). Thus, taking § “[t]he Code Therefore, disputed. apply a de novo we custody except into is not an arrest a child review. See Guzman v. validity determining purpose for the (Tex.Crim.App.1997); Jeffley validity him custody into or the taking (Tex.App.-Hous S.W.3d laws and constitution of a search under the 'd). pet. ton ref In deter [14th Dist.] of this state or of the United States.” Tex. 52.01(b). mining ruling Moreover, whether the trial court’s po- § FaM.Code suppress supported by a motion to a child taken into custo- process lice do not room,” record, through “booking generally only consider the evi dial detention we through “juvenile processing a but rather hearing dence adduced at the on that mo § Fi- 52.025. office.” See suppression unless the issues have tion Tex. Fam.Code circumstances, nally, police in most the do consensually relitigated by par been the “jail,” in a but in a not confine a child Rachal during ties the on the merits. juvenile facility.” “certified detention See (Tex.Crim. State, 799, v. S.W.2d 809 917 § 51.12. Tex. Fam.Code this parties Because the App.1996). consensually relitigated suppres

case can Though recognize we that a child trial, “detained,” examine the custody” sion issues at we will or only be “taken into “arrested,” the use of this termi- as well the evidence from but never trial evidence as confusing, particularly when nology can be suppression hearing. 180 validity juve- upon of a sion a citizen’s freedom.” Hawkins

we must evaluate (Tex.Crim. custody by applying State, 255, the laws and nile’s v. 758 S.W.2d relating to the ar- provisions constitutional temporary investigative For a App.1988). Accordingly, in our suspects. rest of adult valid, following factors detention be clarity, for the sake of hereafter analysis, (1) activity be an unusual present: must “temporary to appellant’s we will refer (2) occurred; occurring be or have must “arrest,” though we rec- detention” and/or must connected with the the accused technically ognize inappro- those terms are suspicious suspicious activity; and juve- respect when used with to a priate activity must be connected with crime. nile. State, 218, 219 n. Davis v. 829 S.W.2d Moreover, the in (Tex.Crim.App.1992). police suspect take a into When employed should be vestigative methods custody, they “tempo either “arrest” or reasonably least intrusive means avail person him. “A is arrested rarily detain” actually placed verify dispel suspi he has been under or the officer’s when able by custody or taken into an offi restraint v. period cion a short time. Davis person executing cer or a warrant of ar State, 240, 245 (Tex.Crim.App. 947 S.W.2d rest, arresting person or an officer or 1997). Finally, investigative an detention a warrant.” Tex.Code Crim. Proo. without reasonable, upon founded a articu- may be (Vernon 1977). However, Ann. art. 15.22 while an arrest must be suspicion lable liberty” “restraint of standard is not probable cause to be consti supported by an adequate distinguishing when between State, v. tutionally valid. Morris a and a detention because it is arrest (Tex.App.-Fort Worth S.W.3d common to both. See Fran characteristic pet.). no State, (Tex.App. cis v. 896 S.W.2d declared that when Legislature has dism’d). 1995, pet. [1st Dist.] Houston “custody,” police juvenile take a into person a particular a seizure of Whether taken, “without unneces- he first must be detention merely temporary an arrest or a “juvenile degree depends upon sary delay,” processing matter of to a of- is a detention, 52.02(a). § amount of fice.” See Tex. Fam.Code the officer employed, force and whether Thus, a presented is whether question investigation. an actually conducts adult, may an ever be “tem- juvenile, like (Tex. v. Woods S.W.2d in the field. In other porarily detained” refd). 1998,pet. App.-Austin words, juvenile if officer seizes investigative deten- conducting while detention,” A some “temporary tion, immediately trans- must the officer “investigative as an deten times known juvenile juvenile processing to a port the tion,” no temporary and last must be office, prelimi- may the officer conduct necessary than is to effectuate longer decid- in the field before nary investigation stop. Balentine purpose of suspect? Ap- ing whether to “arrest” (Tex.Crim.App. 770-71 52.02(a) becomes section pellant contends 2002). temporarily person To detain juve- take a anytime operative an officer need investigative purposes, “custody.” into nile and articulable facts only “specific have which, experi of a officer’s light police 52.02(a) Family Section taken to knowledge and personal

ence po specific procedures lists six Code from those rational inferences gether with juvenile processing may at a facts, perform the intru- lice reasonably warrant would v. Ste objective on circumstances. State All of these functions are consis- office.3 (Tex. venson, 824, 829 & n. 7 regarded as 958 S.W.2d generally tent with what are none relate to a “booking procedures”; Crim.App.1997). the un- continuing police investigation of of fact and conclusions of findings In its Thus, when, derlying offense. we find that law, appel- the trial court determined that 52.02(a), Legislature

in section refers arrested at lant “would have been “custody,” a it taking child into placed of the offense and into custo- scene arrest, custody resulting from an means January dy sometime after 1:00 a.m. on temporary Accordingly, not a detention. added). However, pre- as (emphasis 1999” may juvenile temporari- detain a police stated, conduct a de novo re- viously we investigation in the field ly during view in this case because the resolution they the same manner as detain an adult. not turn on an suppression issues does juvenile Only a has been “arrested” when demeanor, and credibility evaluation of juvenile transported pro- must he be to a surrounding appellant’s the facts detention cessing office. Guzman, disputed. or arrest are not Next, point ap- we at must decide what at 89. S.W.2d because, pellant was arrested once arrest- agrees this court should de- Appellant ed, police obliged transport were under termine de novo whether he was delay juve- him to a unnecessary without car; placed in the police arrest when first processing nile office. The record indi- however, appellant undisputed claims the police apprehended appellant, cates the proved the had arrested police evidence down, patted him him in the placed Appellant at that time. relies on appellant police back of a car 1:80 a.m. and between Chisolm, ar- testimony of Officer who transport ap- 1:50 a.m. The did not police a.m., at the at 3:30 after the rived scene pellant from the the homi- crime scene to in the police placed appellant police had approximately cide office until 4:00 a.m. that, car. testified when Officer Chisolm Thus, police held at the scene appellant arrived, custody in the appellant was approximately two-and-a-half hours. Taylor and that it is Officer Chi- Officer determining ju In “was understanding whether solm’s arrest, placed custody venile under somewhere around was we consider whether, objective testimony circum This does l:50[sic].” based l:30[sic] stances, age meant specify reasonable child the same whether Officer Chisolm appellant or would believe his freedom of movement that the had arrested they temporari- had detained him significantly Jeffley, restricted. See whether event, situation, ly. any In there was no each evidence entirely understanding concern- custody determination of is based Officer Chisolm’s (3) bring only procedures pervision; are the child to a detention 3. The autho- board; (4) juvenile processing by juvenile rized to conduct of- facility designated following: fice are the release the child to facility bring to a detention the child secure custodian, guardian, parent, or other re- (5) bring by 51.12(j); provided as section sponsible upon person’s promise adult facility if the child is be- child to a medical bring juvenile the child before the court as physical condi- lieved to suffer from a serious court; (2) requested by bring the child treatment; requires prompt or illness that tion designated or official before the office (6) dispose without referral to of the case juvenile probable board if there is cause under section 52.03. the court as authorized engaged delinquent child believe that the 52.02(a). § See Tex. Fam.Code indicating a for su- conduct or conduct need charge in of the homicide investi- custody” in who was placed “was ing appellant when Therefore, Bloyd that he Sergeant advised appellant. gation, was manifested to subjective ap- trying belief to determine whether these Officer Chisolm’s was still custody” “in pellant young people was were witnesses or sus- four —whatever de by Thus, that —is irrelevant to our meant po- the record indicates the pects. police of whether the novo determination and his appellant lice detained temporarily de- appellant temporarily had arrested quo status companions preserve Stevenson, tained him. See 958 S.W.2d being was cleared. building while the police of the (subjective & n. 7 beliefs mindful, course, that We are they manifested not relevant unless were temporary, be temporary a detention must Instead, analyze we must suspect). i.e., possible a as of as short duration id. objective circumstances. See purpose stop. See effectuate approximate The reflects that at record Davis, However, at 245. there S.W.2d a.m., were ly 2:00 homicide detectives limitation “bright-line” no time rigid, instructed to at their homes and awakened be temporary which a detention beyond In the mean to the crime scene. report comes a de arrest. United facto time, in officers were control of SWAT 675, 685, Sharpe, U.S. States scene, mak process in the they as were (1985). 1568, 1575, 84 L.Ed.2d 605 S.Ct. surrounding building certain the stop if contin “Obviously, investigative for homicide detectives. environs were safe no indefinitely, point at some it can ues know at time police The did not investigative longer justified as an be victims, witnesses, or sus more whether a deten assessing Id. In whether stop.” building. in the pects remained justified long in duration to tion is too the scene at 3:10 team released SWAT stop, the States investigative as an United a.m., first homi marking opportunity we are to Supreme has held that Court victim, examine the cide detectives had to consider: physical other evidence. premises, and police diligently pur- ... whether Quynh, began Novak to interview Sergeant investigation a means of was sued Linda, Kenneth, to deter appellant suspi- their dispel to confirm or likely presence of their significance mine the it during which time quickly, cions individuals crime scene. After these defen- necessary to detain the statements, Novak had conflicting gave omitted). (citations A court dant. juvenile processing transported them take should making this assessment Travis. office at 1200 office—the homicide police whether the care to consider appellant police detaining The act of developing situ- acting swiftly are being cleared while the scene was car ation, the court and in such cases necessarily not show officers does SWAT indulge in unrealistic sec- should not See In the Matter he was under arrest. omitted). (citation A ond-guessing. E.M.R., (Tex.App. 717-18 post hoc judge engaged creative child pet.) (holding no -Corpus Christi can al- police conduct evaluation of gave until he considered under arrest always imagine some alternative himself). most Instead, implicating statement objectives by which the means did not consider the record indicates accomplished. might have been they until after noticed suspect protection that the But fact “[t]he of the four statements inconsistencies abstract, have might, public crime scene. found near the individuals by ‘less intrusive’ accomplished a.m., Maxey, been Lieutenant late as 3:30 As Sharpe, rigid criteria.” not, itself, govern must over render means does (citations 685,105 at 1575. S.Ct. 470 U.S. omit- search unreasonable.” ted). simply question is not Here, had evidence police some other alternative was whether homicide, capi a possibly that at least one available, police acted but whether murder, Be had been committed. tal unreasonably faffing recognize to fired from within had been cause shots pursue to it. arrived, officer building when the first Id., 686-87, 105 S.Ct. at 1575- 470 U.S. that armed to believe police had reason 76. More building. in the suspects remained over, several entrances building had analyzing par the facts of

When rooms, making any search multiple po ticular case to determine whether exercise. premises highly dangerous reasonably detaining a defen lice acted Richards time, also knew that Officer length of we Police particular dant for a consider, young people had three Asian may example, such factors as observed female) (two the build males and a inside the seriousness of the offense under invest after he arrived on igation;4 necessary whether it was to moments establishing perimeter, After part or vehicle as of the scene. premises search eventually young found four Asian investigative stop;5 police whether it was neces female) (three outside, males and a suspect people to to sary for officers detain near, A detec building. homicide quo interviewing maintain the status but while tive, his home witnesses;6 had been awakened at police whether the needed to who scene, interviewed if and summoned multiple suspects interview determine stories;7 young people separately discrepancies there were their each try to deter compare their stories and whether the of the detention seri travels;8 they witnesses or sus ously suspect’s mine whether were interrupted that, suggest necessary pects. it The record does and whether was effectuate detention, ap their either safety precautions.9 In other at the time of reasonable words, driving were evaluating pellant companions “in an investi or his whether automobile, unreasonable, plane, to board a gative attempting is common detention work, “traveling.” or otherwise ordinary experience walking sense and human Bautista, 1286, States v. 684 F.2d 4. See 4 7. See United Wayne LaFave, R. Search Seizure 9.2(f) (3d ed.1996). (where (9th Cir.1982) § at 66 continued separately temporary they while in- detention State, (Tex. 5. See Meeks v. 653 S.W.2d suspects them to terviewed two and asked (where Crim.App.1983) police detained sus circumstances). explain suspicious certain pect long enough permit inspect them to parked to see if it had truck on vacant lot Moore, 22 F.3d States v. See United defen been broken into after observed (10th Cir.1994) impair- (holding that 247-48 morning walking early hours dant from lot in plans especially suspect's travel ment of high which crime area in and location intrusive). number of automobile break- there had been ins), grounds by v. on other Holcomb overruled McRae, v. 81 F.3d 9. See United States (Tex.Crim.App. 745 S.W.2d (10th Cir.1996) (holding per- 1988). it is 1535 n. to run crimi- to take time missible for officer Mays 6. See ap- history motorist before nal check on 1986) (where (Tex.Crim.App. police detained promote stop to proaching in traffic vehicle interviewing witness who defendant while safety). officer police). had called However, ly long. judge we do not Finally, all of these events occurred slowing of night, pace delay solely by dead of further the a necessity length. of its police investigation increasing the and the Nor do we make a determination as to the injury. hazard of these circum- Under vacuum; rather, in necessity delay of a a stances, police we find the did not arrest we consider the circumstances of each case him Sergeant until Novak had appellant according and evaluate each scenario to its transported approxi- from the scene at cases, peculiar own facts. some a de- a.m., mately young 4:00 after the four might tention of more than a few minutes statements, people given conflicting had be unreasonable. Under most circum- indicating appellant suspect. that was a stances, lasting approximately a detention Accordingly, police we conclude the did two-and-a-half hours would be de facto unnecessarily delay transporting not arrest, the the found police but situation appellant juvenile processing to a office facing themselves here left them with few arresting approximately him at 4:00 after the crime options. evidence showed E.M.R., a.m. See In the Matter of night in the middle of the occurred S.W.3d at 717-18. multiple suspects, involved unsecured scene, possibility multiple and the of vic-

Even if we were to conclude police appellant Any delay merely the had arrested when tims. was the result of car, they first him in the we placed police response particu- to the demands of the J.D., any delay taking still would find that lar situation. In the Matter appellant juvenile processing office (Tex.App.-San Antonio S.W.3d 52.02(a) necessary delay. denied) awas Section (holding that two-and-a- pet. police transport the an arrest requires delay necessary police half-hour was juvenile juvenile pro a designated ed scene). context, crime In this we secure cessing unnecessary delay office without pace nothing find unreasonable about contemplates possibility and therefore investigation or the police of the “necessary” delay. of a Contreras v. investigative Accordingly, detention. (Tex.Crim.App.2001). 67 S.W.Bd unnecessarily police we find the did not necessary delay Whether a is deter delay transportation juve- to a appellant’s Id. The case-by-case mined on a basis. processing nile office violation of section supports finding in this case evidence 52.02(a) Family of the Texas Code.10We any delay po attributable to the was overrule first issue. securing team the crime lice SWAT Did the trial court abuse its discretion evidence indicates that secur scene. The by denying appellant’s sup- motion to building perimeter was neces press parental-notification based on the sary preserve integrity of the crime 52.02(b) requirement of section protect potential scene and witnesses or Family Texas Code? victims. issue, claims his Nonetheless, In his second appellant argues two- oral statement was not admissible because delay hour-and-45-minute is unnecessari- Appellant police transported the record before us. did We that when the from note suppression challenge anomaly at the appellant, journey from the crime scene to Further, hearing. approxi- appellant did not accuse juvenile processing office took stopping, deviating, engaging police police mately ninety minutes. Whether the driving expeditious conduct in him to the most route or in unreasonable deviated from thus, office, juvenile processing the rec- delayed appellant’s at the otherwise arrival office, regard. processing ord is silent in this juvenile we cannot discern what he should do details or any it in violation of section know police obtained Dang 52.02(b) The trial court found Son Section next. Family Code. appel- 52.02(b) police placed present when provides: actual car and thus had lant custody person taking A a child into custo- knowledge that his son was give per- notice promptly shall surrounding dy and the circumstances son’s action and a statement of the rea- 52.02(b) require does not action. Section custody, to: taking son for child into Dang received any more notice than what guardian, or cus- parent, the child’s at the scene. todian; and Hampton v. Appellant cites to designated by or the office official 2001), Paso (Tex.App.-El S.W.3d juvenile board. — S.W.3d —, 2002 WL rev’d 52.02(b). § does Appellant Tex. Fam.Code 2002) and (Tex.Crim.App. Sept.25, at *l-*5 complain notify not of a failure to the office C.R., In the Matter juvenile designated or official denied), pet. (TexApp.-Austin board, parents but claims his were that, parents even when the proposition custody that he or promptly notified was that their child is juvenile are aware custody. the reason was in station, the Fami being police taken to the placed in the police appellant requires that ly police Code nevertheless police car at the scene between 1:30 a.m. rea formally notify parents as to the Appellant and 1:50 a.m. left the scene in a taken into custo juvenile son the has been a.m., at police approximately car 4:00 Here, had dy. only father not appellant’s juvenile processing he arrived at the office knowledge police that his son was actual a.m., approximately at 5:45 a.m. At 8:45 why testified he knew his custody, but also appellant gave implicating a statement custody. Appel taken into son had been capital Appellant’s himself murder. knew that his son often took lant’s father parents given were formal notice that he play pool business to on a friends to his in custody day approxi was later that shop, located in the machine billiards table however, mately p.m. Significantly, 3:00 mur employees had been that one his father, Dang, appellant’s Son came to the dered, that his son and several of his shortly body crime scene after the victim’s were found near companions son’s scene, ap was discovered. At the crime Accord shortly scene after the murder. pellant’s police father identified his son actual knowl ingly, appellant’s father had appellant sitting and saw in the back of a the fact that his son was edge of both Appellant’s car. father also saw his police therefore, custody and the reason so police being transported from the scene. son 52.02(b). there was no violation of section asked whether he received notifica When tion, testified, ap “I I Even if we were to find that Dang was there. Son knowledge actual did not pellant’s call I was father’s didn’t think no one need to me. statute, time, satisfy requirements I get at the scene all the but don’t connection did not show causal any Appellant’s appellant information about that.” and his delayed had formal notice father further testified he knew what between shop, the machine but did not oral statement.11 Gonzales happened at knowledge was in regard appellant’s actual that his son ther had 11. We note in this appel- custody, legal police the record reflects was free to retain counsel for father However, appellant not visit him until though appellant’s fa- lant’s father did son. even family alone in the (Tex.Crim.App.2002). appellant We was S.W.3d a.m., room from 5:45 a.m. to 7:20 there was overrule second issue. attend, failed no evidence that the the trial court abuse its discretion Did watch, appellant from guard outside sup- by denying appellant’s motion Therefore, family room. there was no evi- 52.025(c) press based on sections left unattended dence that was 52.025(d) Family of the Texas Code? family he was in the room. In addi- while tion, con- appellant did not show causal issue, appellant

In his third claims allegedly being nection between left unat- statement inadmissible be his oral family tended in the room and his oral 52.025(c) cause the violated sections Gonzales, 67 statement. See S.W.3d (d) Family Code. Those statutes provide:

(c) A may child not be left unattended Appellant further contends the juvenile processing office and is his oral suppressed trial court should have accompanied by the entitled to be him in police statement because held or other parent, guardian, child’s office more juvenile processing for attorney. custodian child’s The record reflects that than six hours. (d) in a may A child not be detained juvenile processing in the appellant was juvenile processing longer office for a.m. until approximately office from 5:45 than hours. six longer than p.m., slightly 12:25 an interval 52.025(c),(d). § Tex. Fam.Code From 5:45 a.m. to six-and-a-half hours. a.m., family appellant slept contends he was left 7:20 in the Appellant first a.m., juve family unattended in the room at the At he was taken to the room. 7:30 until At processing magistrate rights. nile office from 5:45 a.m. and read his 8:00 52.025(c). a.m., juvenile pro 7:20 a.m. violation of section he was returned to However, office, oral appellant cessing gave did not assert this con where he his statement, a.m. From sup tention either in his written motion to which ended at 8:46 appellant motion to re press hearing p.m., or at the on his 9:00 a.m. until 12:10 Therefore, p.m., At 12:10 appellant family did not in the room. suppress. mained father, and at preserve complaint. appellant telephoned error on this his Jeff journey to appellant began at 853. his ley, p.m., 38 S.W.3d 12:25 juvenile detention center. appellant preserved Even if had statement, the error, appellant gave Before his prevail he could not on his 52.025(c) juvenile process- him the police of the Texas Fami detained under section for than two hours while it lacks merit. The rec office less ly Code because statement, de- slept. After the Bloyd placed ap ord reflects that Officer him for another three-and-a-half at 5:45 a.m. and tained pellant family room his oral Appellant giving hours. finished appellant returned at 7:20 a.m. to find time, arriving after at the woke statement three hours asleep. Bloyd At that Officer office—halfway juvenile processing magistrate him a so appellant and took limit of section through the six-hour could informed of his appellant be 52.025(d) Family Ap- the Texas Code. at trial rights. Though there was evidence days the offense. juvenile detention lant until two after transported been had lawyer appel- and did not contact a center waived his com had finding the defendant a causal connection did not show pellant court observed juve- plaint appeal, stay in the between the his were “omitted instructions the defendant’s state- office and his oral processing nile jury proposed eight page Gonzales, buried within at 913. ment. See matters among the and were not charge appellant’s overrule third issue. We charge confer during the appellant raised Here, the trial ence.” Id. at 828. Jury Requested IY. Instructions proposed instruc appellant’s aware of issue, appellant asserts the his fourth tions, proposed tendered his appellant as refusing appellant’s court erred in trial court and the separately, instructions jury appellant’s instructions that requested instructions, both proposed denied the could not be considered as oral statement pre has writing. Appellant orally and found jury him unless the against evidence we now turn to Accordingly, error. served 52.02(a), with police complied sections claim. the merits of 52.025(d) 52.02(b)(1), Texas 52.02, §§ Family See Tex. Fam.Code Code. at trial contends the evidence Appellant 52.025(d). whether a factual issue as to raised a result of his oral statement as claims that obtained State 52.02(a), alleged violations sections preserve error as to his fourth did 52.025(d) 52.02(b)(1), of the Texas A in the complaint issue. of error 38.23(a) Article of the Code asserting Family Code. charge may preserved by re- governs issues objection requesting an instruction. of Criminal Procedure (Tex. State, admission of to the exclusion or lating Vasquez v. S.W.2d in violation of allegedly An must evidence obtained Crim.App.1996). ruling adverse objec Family the See Tex.Code Crim. preserve be obtained to error on an Code. Proc. 38.23(a) (Vernon Supp.2002); tion, in Ann. art. special requested but not on a Gonzales, Appellant 67 S.W.3d at 912-13. struction that is called to the trial court’s an article 38.23 instruction was entitled to Citing attention. See id. to this court’s State, Family viola- alleged the Code regarding decision in Arana v. the ar State raised a only if the trial evidence complaint waived be tions gues appellant this concerning police the factual issue whether cause he did not mention the omissions a result statement as appellant’s when obtained complains appeal which he now on provisions. violation of one these initially request trial denied his of their 38.23(a); Proo. Ann. art. charge ed instruction at the conference. See Tex.Code Crim. 52.025(d); 52.02, §§ Gon- Arana v. S.W.3d Tex. Fam.Code 912-13; zales, Bell v. pet. S.W.3d (Tex.App.-Houston [14th Dist.] refd). (Tex.Crim.App.1996). In that point. Arana is not on words, wheth- case, we must determine other proposed the defendant submitted his a factual at trial raised charge. er the evidence proposed in an entire instructions obtained as to whether The trial court used the State’s issue Id. at 827. statement as result appellant’s oral charge, which did not contain proposed (1) al- following: instruction, more of the a work one or defendant’s desired as taking appel- in unnecessary delay leged Though draft. Id. the defendant ing after processing office juvenile lant to a as the trial court raised certain matters (2) alleged custody; into taking him charge, he did not men through went notify properly and promptly failure to of the instructions about tion the omission in appellant that parents appellant’s Id. In complained appeal. on which (3) only day custody; alleged testimony and detention of and a half of and in appellant juvenile processing office for argument reminded counsel that is not longer evidence, than six hours. We conclude the only but summation. After ob- presented limitation, did not jecting evidence raise to the time defense any regard. factual issues pointed jury counsel out to the a some- cursory charge what fashion al- undisputed evidence at trial appellant capital lowed them to convict (1) did not showed: unnecessari murder, murder, felony or murder. He ly delay juvenile in taking appellant to a argued the showed a evidence reasonable him processing taking office after into cus doubt that intended to rob the (2) tody; appellant’s father had actual complainant. argued He the definition of custody knowledge his son was reasonable doubt and the voluntariness of (3) therefor; the reason there was no caus appellant’s statement. Defense counsel al appellant’s connection between oral challenged credibility also statement any alleged delay notify witnesses, including State’s Kenneth Tran parents that appellant’s appellant was He Bloyd. argued appel- and Officer custody; there was no causal robbery, lant Quynh committed no but appellant’s connection oral state between wanted to make the scene “look like a stay in appellant’s ment and the robbery.” Counsel further informed the Therefore, juvenile processing office. jury that the reasonable doubt standard in refusing trial court did not err applied charge conspiracy on give an article 38.23 instruction parties. point, At that the trial the law of regarding alleged Family Code viola court informed defense counsel that his Accordingly, appel tions. overrule we time had run. Counsel asked for “three lant’s fourth issue. minutes,” and trial court more denied After the request. State’s Closing Argument Y. Limitation concluded, again peti- counsel issue, appellant In his fifth claims the time, tioned the trial court for additional trial its in limiting court abused discretion stating, adequately “I was unable to sum- closing argument twenty his to minutes. ways nine different the had mate the State Appellant complains that this time limita- apply a crime to alleged that occurred and prevented adequately tion counsel from to that to summa- [sic] the facts summate (1) addressing: the two different theories why rize facts with each one to show the found to appellant under which could be proved the had not their case.” The State (2) robbery; ap- have committed whether again request trial denied counsel’s court pellant permanently deprive intended to for time. must now deter- additional We (3) fact that property; his father of the if trial abused its discretion mine court appellant Quynh’s was not aware of intent any refusing appellant’s to allow counsel (4) conduct; charge the trial court’s on closing argument. more time for (5) parties conspiracy; law of credibility officer who took funda Closing argument is of confession; and the differ- in a criminal trial. importance mental See ent which could theories under 862, York, 853, 422 95 Herring v. New U.S. murder, guilty capital felony be found (1975). 2550, 2555, 593 S.Ct. 45 L.Ed.2d murder, or murder. concise, accused, ar persuasive For a gument could mean the difference between limiting closing argument twenty to Id., 422 minutes, unjust liberty imprisonment. court there was the trial noted of discre an abuse have been 863, closing might ment at 2556. The at 95 S.Ct. U.S. tion). out in his points Hudson As Justice opportunity presents a valuable dissent, trial a thoughtful eloquent and the defense to summarize the evidence as on a defendant’s must not encroach court jury explain why it and should sees right repre to Amendment valuable Sixth or, in some a not guilty render verdict — time re unreasonable by placing sentation cases, charge. on a lesser guilty a verdict closing arguments. on strictions defen- may deny felony A not a trial court closing opportunity to make dant recognized long Texas courts have the court has broad discre- argument, but offenses and involving grave that in cases of it. regulation tion in the and duration issues, practice is the better complex 858-62, S.Ct. Herring, 422 U.S. at See for amount of time generous allot more State, 2553-55; Hernandez v. See Jenkins closing argument. (Tex.Crim.App.1974). S.W.2d (App. 60 Tex.Crim. S.W. 1910) (“We therefore, that suggest, would limita Placing reasonable time unduly limit coun should not judges trial necessary closing argument tions on in all and that arguments, sel in their practice protect rights and sound punishment it is involving capital cases speedy to a trial. See U.S. all defendants ample op counsel practice to allow better Const, I, Const, VI; art. amend. Tex. fairly, present questions portunity § trial dockets and 10. Given crowded fully jury.”). before thoroughly, trials the critical need to conduct criminal helps to ensure Following practice manner, timely in a and efficient opportunity to ample have defendants diligent managers. must be time courts it they see present the evidence as they given great This is one reason are rale why the should demonstrate scope latitude to limit the duration and Deciding appropriate their favor. closing arguments. Herring, U.S. closing argument is amount of time for Though may it 95 S.Ct. science, has and the trial court an exact present genuine challenge sometimes deciding how much broad discretion closing ar successfully complete counsel to Hernandez, 506 time is warranted. See allotted, mere gument within the time Nonetheless, it is better at 886. S.W.2d difficulty existence of this does not mean much time giving side of too err on the setting its discretion in abused too little. giving than See, e.g., Decker v. restriction. of Criminal The Texas Code (Tex.App.-Houston 394-95 d) (trial address the 1987, did Procedure does not pet. ref court Dist.] [1st arguments but leaves closing closing ar duration of limiting discretion not abuse to broad discretion though the trial court with fifteen minutes even gument Hernandez, matters. these See exceptions regulate presented bill appellant reviewing In the trial at 886. 506 S.W.2d 24-minute-long argument showing make). decision, the record in the Yet, we view “there is court’s wanted to appellant the trial court. See most favorable to quickly light a case can be or a limit on how 557, State, 301 164 Tex.Crim. on a Dubois v. infringing without proceed dered to 97, The reason (App.1957). 101 to a fair right constitutional S.W.2d defendant’s on 530, depends limitation State, the time 12 534 ableness of Kemph v. S.W.3d trial.” ref'd) of each case. 1999, circumstances the facts and pet. Antonio (Tex.App.-San determining The factors we consider allowing the defen (noting in dicta that allotment trial court’s time argu whether the closing dant’s counsel six-minute 190 (1)

was an abuse of discretion include: each to show how the State did prove not (2) evidence; quantity of the conflicts in its case. The trial court give refused to the testimony; complexity of him even three complete more minutes to State, 790, the issues. Bell v. 768 S.W.2d the task. 1989, 803 (Tex.App.-Houston [14th Dist.] In deciding whether refd). pet. grappling In with the issue firm twenty-minute court’s limitation was closing reasonable time limitations on ar case, an abuse of discretion in this we must gument, give particular Texas courts also complexity consider the seriousness attention to whether defense counsel was the offense as well as the evi volume of to complete able the task and meet de testimony. dence and the conflicts in the objectives in fense the time allotted. See Bell, 803; 768 S.W.2d see also Are (Tex. State, 701,

Arevalo v. 835 S.W.2d 707 valo, (upholding 706-07 1992, App.-Houston no pet.) [14th Dist.] fifteen-minute felony time limit case (finding no abuse of discretion where rec only where four witnesses testified and one ord reflected min argued counsel for 17 contested); State, issue was Mullen v. utes and “covered all relevant issues in the (Tex.App.-Houston S.W.2d [14th very cogently”). case Even when the trial pet.) (finding no no Dist.] abuse of places court strict limits on the time for aggravated robbery discretion in an case if closing argument, the record indicates when the trial closing argu court limited the defense was able to cover what it set minutes); Decker, thirty ment cover, appellate out to typically courts find (finding S.W.2d at 395 that a fifteen-min See, e.g., Wyatt no abuse of discretion. v. in aggravated robbery ute limitation case (Tex.Crim.App. S.W.3d discretion). abuse of As the 2000) (finding appellant right forfeited his dissent notes and as the record demon to complain appeal when defense coun strates, complexity of the issues and minutes, sel used only 38 of his 45 gravity suggest of the offense noting counsel was not cut off presenting jury just the case to the trial court and had not asked for additional twenty challenging minutes was a task time or identified matters he had been appellant’s very even for able trial counsel. cover); Plattenburg unable to There were several different theories un (Tex.App.-Beaumont S.W.2d which the could have been der ref'd) pet. (finding no abuse discretion fact, guilty. longer found it took limiting argument to 35 trial minutes when charge jury read the than defense had not cut off argument, court defense given argue counsel was it. requested counsel had not additional time criminal Complex cases often involve at end of argument nor identified matters many witnesses as well as voluminous and desired to discuss with which he evidence, contradictory and under covered). these yet had not These courts seem circumstances, generally if adequately to reason that trial counsel within acting would not be its discretion to necessary points, covered the no additional limit min- warranted, closing argument twenty if time was even the tidal court case, however, In only utes. this the is- in place. did not allot much time the first Here, appellant’s sues were whether statement defense counsel asked the trial court time, voluntary appellant was was and whether specifically explaining for more murder, murder, guilty capital felony of he had been unable to cover the nine dif murder, guilty any or not of offense. ways alleged ferent the State had that a and the apply appellant’s crime occurred and to the facts to Based on statement acted trial, whether the trial court at the before determine primary evidence issue re without arbitrarily, unreasonably, or guilty jury the was whether was Lyles See gard guiding legal principles. to of murder or a of- capital lesser-included (Tex.App.- 850 S.W.2d a total Though fense. of eleven witnesses Ap half, pet.). Dist.] no [14th Houston in of a span day testified the a review, trial the defense, plying that standard of witness only one testified for its Accord not abuse discretion. court did so were few in the testimo- there conflicts fifth issue. appellant’s we overrule trial, dire, ingly, ny. including The entire voir days. than two lasted less VI. Conclusion court has found no abuse of discre This court did its discre- The trial not abuse Bell, in tion cases with similar facts. denying appellant’s sup- in motion to tion placed thirty-minute court limit the trial alle- press oral statement on his his based closing argument five-day felo of a violated sections gation Bell, ny trial. at 808. See 52.025(d) 52.02(b), 52.02(a), 52.025(c), and Although very the case serious involved Family of Nor did the Texas Code. to capital offense—solicitation commit re- refusing appellant’s trial court err in was very murder —there little evidence. sec- quested regarding instructions Bell, Id. In all the presented State 52.025(d) 52.02(a), 52.02(b), tions evidence, and there in were few conflicts Family Code. The evidence the Texas testimony. Id. found The Bell court trial did not raise factual issue concern- no abuse discretion. id. Other appel- whether obtained limitations upheld courts have similar time their lant’s oral statement as a result of See, capital-murder e.g., trials. Platten provi- alleged violation one of these Likewise, burg, 972 S.W.2d Finally, the trial court did sions. case, appellant’s there limited trial by limiting appellant’s discretion abuse its testimony, presented and the State all of minutes. closing argument twenty it, except testimony appellant’s issues, all we Having appellant’s overruled father, present during who was not judgment. affirm the trial court’s commission offense. Though particular no are determi facts HUDSON, J., dissenting.

native, suggest the facts case HUDSON, Justice, J. HARVEY twenty might possible minutes be the least dissenting. amount of time a trial could set and majority join disposition I in its limiting still By not abuse its discretion. fifth four In his first issues. closing argument twenty min just issue, however, appellant the trial claims utes, precariously court came limiting clos- court abused its discretion Indeed, crossing the it is close to line. minutes. twenty Because ing argument difficult to understand re the trial court’s dis- appellant, I agree respectfully I with just defense three give fusal to counsel sent. capital- more minutes of However, ac- judge prosecutions, “In criminal murder trial. we do not all enjoy right stan ... to have the trial court’s decision our own cused shall dards, i.e., would of counsel for his defense.” by how much time we assistance Const, “The under circum amend. Constitu- have allotted the same U.S. VI. rather, heard stances; in the of a defendant right we view the record tional necessarily includes through counsel favorable the trial court fight most 192

right fact, to have his counsel make a proper appellate courts.2 In majority argument on the evidence and the applica cite a number of upholding decisions re- State, ble law his v. Yopps favor.” 228 imposed strictions on argument similar to 204, 879, (1962); Md. 178 A.2d 881 see also one found here. The rule seems to be (Tex. State, 93, Arnold v. 68 S.W.3d 102 if completely counsel denied ref'd) 2001, App.-Dallas pet. (holding that opportunity present argument, revers- jury argument denial of may constitute a ible error from an results undeniable in- counsel). Thus, denial of right fringement the Sixth amendment.3 “argument of a part cause is as much a However, court, if the trial its discre- hearing the trial as the of evidence.” Mere tion, simply permitted limits the time (1877). 479, People, Yet, deth v. Ill. 84 481 argument, appellate courts generally ap- over the century last there has been a prove the limitation. How far does steady progression jurisprudence in the logic extend? Is a five minute limitation this state and others to tolerate ever more permissible under the Sixth Amendment? restrictive limitations on the of clos ing argument. How about a minute one limitation? The trend shrinking toward ever time limits on

Arguments of several hours were once closing argument cannot continue indefi- common and considered a matter of right.1 nitely extinguishing any without Today, meaning- limiting argument to ten or fifteen per routinely approved by minutes side is right argue.4 point, appel- ful At some 699, State, 393, People Young, (Tex. Cal.App. 1. See v. 136 29 v. Decker 734 S.W.2d 395 440, 1987, (upholding ref'd) P.2d 444 App.-Houston a limitation pet. [1st Dist.] case); per of 3 hours People side in an assault (holding proper limitation of 15 minutes 644, 228, Phillips, Cal.App. v. 120 P.2d trial); State, 8 233 aggravated robbery v. Esterline (1932) (approving a restriction of 171, hours in 2½ (Tex.App.-Corpus 707 S.W.2d 176 Christi case); 518, Hoyt, a murder State v. 47 Conn. 1986, ref'd) pet. (approving limitation of 10 (1880) (approving 531 a 4 hour a limitation in per delivery marijuana minutes side in a State, 818, case); Lindsay homicide v. 138 Ga. State, case); 63, (Tex. Moya v. 66 369, (1912) (affirming 76 S.E. 370 a hour 2½ 1985, App.-San pet.) (upholding Antonio no case); Riddle, limit in a v. murder State 20 per drug limitation of 10 minutes side in a 711, (1878) (upholding Kan. 714 a time limi case). case); 4 tation of hours in a murder Smith ½ Commonwealth, 133, 586, Ky. v. 100 37 S.W. Davis, 161, (La.Ct. v. 822 State So.2d 165 (1896) (finding 587 no abuse of discretion in App.2002) (holding deny trial court erred in limiting argument per to 4 hours side in a present opportunity closing counsel an case); State, murder Weaver v. 24 Ohio St. case); arguments robbery in an armed State 584, (1874) (finding 585 trial court did not 386, (La.1975) Moorcraft, v. 319 So.2d 391 limiting argument abuse its discretion to to 5 (holding denying argu trial court erred in per day hours side after two trial for at case); Yopps, ment in a traffic violation 178 State, murder); tempted Bradley v. 60 Tex. (Md.1962) (holding A.2d at 882 trial court 398, 484, (App.1910) Crim. 132 S.W. burglary abused its discretion in a case where (affirming manslaughter a 3 hour limit ain trial). it denied in a bench trial); Shores, State v. 31 W.Va. S.E. (1888) (approving a 4 hour limita tendency shrinking 4. The toward ever limita case). burglary tion in a closing argument tions has been resisted example, 2. See in some states. For in Foster v. Bowman 331 So.2d denied, (Ala.Crim.App.), cert. latitude "[W]ide 331 So.2d 777 court announced: (Ala. 1976) (affirming given arguing 15 minute limit in must be counsel in his case to case); Commonwealth, drug ordinarily arguments Dawes v. restricted (Ky.1961) (finding thirty S.W.2d no abuse minutes or less are considered sus (Fla.Dist.Ct. limiting argument pect.” of discretion in to 15 min 464 So.2d case); possession property App.1985). in a utes of stolen

193 limitations, If, to time counsel must whether the Sixth due late courts decide fact, point off of constrained to leave some be not. fully Amendment is to observed or logical syllogism, some emotional some Everyone the concedes that accused defendant been afforded plea the —has where, if hearing be a full permitted must hearing? must partial full If counsel or chooses, may all present he he relevant in speak his and an unnatu- hurry remarks restrictions, In this evidence in his defense. endeavor manner to meet time ral the content both judge of has not dictated he is entitled assistance counsel. and manner its argument of the of Moreover, right represented by be to words, has not delivery? In other the right fully argue counsel includes to infringed right upon court defendant’s lawyer the merits of his defense. How a 5 The fully by counsel? represented to be argue may vary. may chooses to Counsel people “secured to the right to counsel was skill, great with argue aplomb the case and it], England, from whence we [borrowed of presentation he may or deliver mediocre and v. by long persistent efforts.” Dille utterly im- lacking logic persuasive and 1878). (Ohio State, 617, By 34 Ohio St. 619 orator, may or pact. gifted Counsel be a upon infringe it authority what do courts awkward; may shy may he he be posses- The that we into today? fact came speak loudly softly; may or be animat- liberty right, as a conceded sion of ed, stiff. may or he Whatever cold or forget not to cause us to underate ought judge adopts, method counsel importance. people Id. While the have its silently, must has sit for accused authority repeal it within their Sixth (even defense in the of his placed Amendment, hands by judiciary incre- counsel, judge. progression) mental do not. not states, 201, 504, State, party's v. 272 Ga. 528 S.E.2d several the erosion of Monroe

right argument by (2000) present (holding has been halted in trial for 506 defendant legislature, North for statute. The Carolina by two malice entitled statute to murder example, closing argument has mandated that State, argument); Massey closing v. for hours jury may ato be limited “to not less than one 76, 149, Ga. S.E.2d 151 508 ap- hour on each side in misdemeanors (same). peals justices peace; not less from Also, Oregon Procedure Rules of Civil than two hours on side in all other ... each two provide that more than counsel "[n]ot capital; capital felonies less than [and] plaintiff jury on of the address the behalf shall felonies, may argument the time of counsel defendant; occupied the whole time by not be than limited otherwise consent.” shall not be limited to less behalf either (1995). § N.C. 7A-97 Gen.Stat. Moreover, B(7). two ORCP than hours.” Georgia Supreme Court of has re- applicable criminal cases this rule is made judges moved all discretion from trial to set Oregon by Section of the Revised 136.330 argument felony closing time for limits Doem, Or.App. v. Statutes. State by interpreting cases Section 17-8-73 (1998, (hold- pet.denied) P.2d Georgia legislative expression to be Code felony ing trial in a assault case erred in the maximum and minimum time limits for limiting argument to 20 minutes violation cases, i.e., felony argument for two hours B(7)). ORCP 58 capital non-capital hour for felonies one Chapman v. 273 Ga. felonies. argument made eloquently was in 1893 5. This (2001) (holding a trial 548 S.E.2d Court of Crim- W.W. Hair before Texas impose any further court has no discretion to Appeals a client who had in defense of inal closing argument than time limit on the theft the trial court convicted of after been statute, provided by and failure to afford twenty argument the time for restricted parties capi- two in a hours for case, Walker 32 Tex.Crim. minutes. See penalty tal even if the death 1893). (Tex.Crim.App. law). 22 S.W. 685 sought, as a See also is error matter of Even advent before the and were great Sixth carried out with intensity, Amendment, argument was a fundamental frequently apparent with an sense of frus component In of a fair trial. the “16th and “Every tration.” Id. law professor knows centuries, 17th notions of compulsory when problem to be a serious for law stu confrontation, process, and counsel were who, they may dents while have mastered infancy, their [still] essence of the law, apply black-letter cannot it ato English argument criminal trial was be- set of facts even after semester or more tween the and defendant counsel for the study. usually of can grasp Students procedural Crown.6 other pro- Whatever law, they facts and recite the but are com may lacking, tections have been there was monly a bridge unable to build between no absence of on the debate factual and the two.” Id. legal in a issues raised criminal case.” York, Herring 853, 860, v. 422 New U.S. 95 “Also are studies telling showing that (1975). 5.Ct. 45 L.Ed.2d 593 jurors cannot frequently simple answer protections procedural While are much true-false questions concerning statements today, more than extensive in the 16th of law taken they from instructions were century, this fact does not diminish the given in court. Their is understanding importance argument. closing persons often little better than that of who right to fully argue case “is of inestima never heard the instructions all.” Id. A value, accused, ble only not but to however, lawyer, can do what the trial public justice.” the administration of Win judge permitted is not explain the do— go 1884 Miss. WL charge simple, court’s everyday lan- (Miss. 1884). *3 For example, Oct. while guage apply specific it to evidence. jurors job generally good do a of determin argument, juries Without benefit facts, ing the abound studies “demonstrat are hopelessly often confused. appeal, On jurors the extent to which misappre presume we jury understood and fol- hend the relevant law.”7 “The problem is lowed the charge, court’s but “often the especially severe when the law is set forth judge must jury state those rules to the in pattern they instructions that —because with many lawyers such that niceties do designed are any par without facts of them, comprehend not and it impossible is abstract, ticular case in mind—tend jury can.” Skidmore v. Baltimore general, Christopher and technical.” May, (2d Co., Cir.1948). & O.R. 167 F.2d Loy. L.A. L.Rev. at 872. “In exper one short, In “juries the disadvantage have ... iment, juries mock made numerous mis being like children treated while the takes concerning law—mistakes that on, testimony going being is but then were not in the corrected later delibera during doused with a of law kettleful apply tions. This failure to the law cor charge third-year make a law- would rectly no means failure to take Bok, (quoting student blanch.” Id. CuRTis seriously. the law Discussions of the law Too, (1946)). up took I one-fifth of deliberation time Nicodemus 261-62 fact, Eng- opinion 6. In F. Lord Coke was of the Jurisprudence Dillon, The Laws man, (1894). no true land and America even "with all his and uttermost labors,” hope proper to achieve a could dis- position May, in a case "without Christopher difficult solemn N. The Sound the Gav- argument, persuaded, Almighty Perspectives Speech: where I am el: on Judicial "What Do openeth enlargeth understanding Helping Apply God We Do Now?”: Juries the In- Loy. structions, (1995). justice right.” of those desirous of L.A. L.Rev. John simply does charge, of counsel because he In tion explaining addition say. Ac- is about to may counsel draw reasonable conclusions know what counsel never from the evidence which the cordingly, when “time for fact, court, “primary purpose considered. by the it should be ... restricted cross of wit- of direct and examination right of the accused very clear that upon to the record nesses ... ‘is create essentially im- not been heard has be ” v. will based.’ State which summation making for opportunity an paired, and that (La.1993) 711, Washington, So.2d 713 the whole defense on complete full and (quoting 6 A.P. ORDoveR, v. Law has not denied.” Willie Criminal case been (1990)). § facts 1.01 Sometimes Advocacy, (Miss.1991), overruled 585 So.2d skillfully on developed subtly are so and v. grounds by King on other cross-examination, im- the defense is not (Miss.2001). 884, So.2d mediately prosecutor. obvious even it power logic, cold In addition to the Id. On these occasions the accused’s defen- to argue case privilege is counsel’s closing theory apparent sive is not until may Counsel the manner he deems best. Consider, example, argument. for Abra- oratory.” may, He indulge “flights ham first of a client Lincoln’s defense fact, juror’s appeal make naked to a charged engaged He no with murder. to Amendment is If the Sixth emotions. wit- prosecution’s cross-examination of the trials, any application have modern eye-wit- nesses save for the state’s sole volume, timing, strategy em- and speed, witness, only ness. Of this Lincoln asked argument by final counsel his ployed questions, inquiries fourteen and these counsel, by not the must be determined particular seemed no relevance to have must not be constrained court. Counsel Only did the case. thereafter Lincoln to make court restrictions by imposed by logic show irrefutable that the witness a luke-warm sterile “such was none other than the murderer himself. jury unable to which arrested, that the is determine

The court ordered the witness Light- on.” Houston of the case he is he L. side promptly confessed. Franois Fisher, Power v. ing & Co. Wellman, The Art of CROSS-Examination (1904). (Tex.Civ.App.-Houston [14th Dist.] 56-58 n.r.e.). 1977,writ ref. closing will be where ar- “[TJhere cases misjudg- gument may premature correct a Thomas Preston and Captain When ment avoid otherwise erroneous his command British soldiers under eight way there no certain verdict. And 1770, they were tried for murder in were which judge identify accurately trial by future President of the defended be, judge cases will until the has these States, Adams. defen- John United closing heard summation of counsel.” “bloody butch- dants were accused If Herring, 422 U.S. 95 S.Ct. 2550. at the time as “Boston ery” acclaimed opportunity counsel is not afforded asserting clients’ claim Massacre.” case, argue the the brilliance of his fully self-defense, daunting Adams faced significance of cross-examination and the jury an American to see persuading task of testimony, carefully cultivated dur- critical eyes of British through incident Thus, trial, never may be revealed. the city. occupying soldiers time judge restrictive imposes when trial in the Preston closing argument limits, Adams’ danger of inad- always runs the perfor- was as “virtuoso case hailed vertently the defendant of depriving best) acquitted. mance,” (and Preston representa- full sometimes the McCullough, ‘abuse’ right [the argue],” David which sim- John Adams 65-68 (2001). Thereafter, Adams defended the ply means “that may counsel be restricted eight enlisted men who fired into the to a discussion of matters relevant to the closing crowd. His argument, which last- case, and restrained from wasting the time days, ed two was described as “electrical.” by of the court repetition.” useless People Id. by Persuaded logic Adams’ and orato- Green, (1893). 99 Cal. 34 P. ry, acquitted six of the eight if, For example, during argument, a law- soldiers. Could Adams have achieved the yer begins reading book, phone from a same result in twenty minutes? If the may cut him off because the difference acquittal between an and a con- “argument” absolutely has no relevance to viction is by determined whether counsel is the case or the issues to be determined permitted case, to fully argue the how can Likewise, jury. lawyer, if a having saywe imposition overly of restrictive completely arguments, exhausted his be- time limits does not infringe upon the gins himself, repeating may court im- Sixth Amendment? pose restrictions to keep from wasting “It is very difficult judge for a to deter- Apart time. from these two consider- mine given what effect a line of argument ations, however, I any conceive of cannot may upon have jury, or some one of other valid upon closing restraint argu- them, or period what may be necessary to ment. So while the trial court is vested enable counsel present, to aspect with regulating discretion in the duration by deemed important, them the case of of argument, such discretion is not unlimit- their client. The minds of men are so ed.8 differently constituted that an advocate may require much more for the statement Here, the record demonstrates appel- and elaboration of his view than another.” lant’s counsel was in a engaged legitimate, People Keenan, 581, (1859). v. 13 Cal. 584 purposeful, non-repetitive argument when he was abruptly by silenced the trial court.

Nevertheless, I recognize if trial For what purpose was counsel cut short? courts could not restrict the length of ar- Not to quell improper argument, nor gument, si- some attorneys would tempted be lence repetition. useless fact, argument to filibuster. In “intolerable evils appears to have might been limited solely result and the for the very purposes for fact, which convenience of the In justice courts of court. were ma- instituted might jority be contend defeated if no the trial court pre- limitation could has the be imposed rogative the freedom speech limiting argument in order to behalf.” 311, Wingo, 62 Miss. 1884 move the docket WL more expeditiously. This 3462, Thus, at *4. not, the trial judge is may my opinion, a valid reason for “restrain what has been termed ... an limiting argument.9 See, State, example, Huntly court, 8. v. 34 S.W. precious “while time is to the it is 923, (Tex.Crim.App.1896) (holding infinitely more so to him for whom counsel is life, time limit of per argu- pleading, 15 minutes liberty, side for and happi- whose ment try resting Justice.''). in case that took four hours to ness is in the was balances of improper, but not reversible because counsel failed 38, to make exceptions); sufficient bill of Kay, 9. See App.2d State v. 12 Ohio 175, Walker (1967) v. 32 Tex.Crim. 22 S.W. N.E.2d (holding 660-62 trial (Tex.Crim.App.1893) (holding judge limiting argument erred in bribery judge limiting argument erred in to 45 min- case judge to 45 minutes when stated he per utes supported side in a theft largely limiting case because he wanted by circumstantial noting get jury by case to the 4 o’clock in the evidence— deciding time limitations ex what Admittedly, trial courts are “under When counsel, pressures keep move a trial imposed upon treme cases should be current, admirable their dockets but those press not simply should consider goals accomplished should be trial, time, of the but litigants and expense of fairness witnesses, the amount of evi- number of jurors for the who without consideration case, dence, and the importance their greatly rendering could be assisted Bell, complexity issues. number attorneys’ closing argu verdict at 1323. 501 So.2d Bell Rayvals v. Harland ments.” Here, capital tried for appellant was Ltd., (Fla. Tramp., So.2d therefore, and, subject to the most murder Dist.Ct.App.1986). impor “While time permits against our law penalty severe important tant to the court it is also accused, hangs juvenile peni- in the in the liberty whose life or offender-confinement Yopps, balance.” 178 A.2d the enormi- tentiary Considering for life. words, can expedition other “the need for crime, arguably few cases could ty op justify never denial of reasonable the ac- society more important portunity present the defendant’s case.” cused, than the one here.10 presented Comi 202 Md. 97 A.2d trial, During the course of (1953). Thus, judge while the trial the heard tes- days, jury lasted two which discretion, may, in the of limit timony from eleven witnesses. One factor “power by ... argument, qualified the trial court abused deciding in whether defendant, of competing right the the limiting argument in is to its discretion stature, which has constitutional to be at the number of witnesses called consider by by heard either himself or counsel.” 3 analyze of time to trial versus the amount E. WHARTON’SCRIMINAL CHARLES TORCIA, (13th ed.1991). Here, if testimony.11 § counsel had 449 their Procedure Sherman, 512, (1907) afternoon, (2) 90 P. 981 he case scheduled 35 Mont. had another (3) argument day, (finding for the next business he to to 1 hour trial error restrict case); spare jury the of capital wanted to inconvenience 45 murder minutes in weekend). returning 473, 1126, State, after the v. 101 Nev. 705 P.2d Collier (1985) argument (holding a 1 1131-32 hour 10. For cases which trial other murder in permit- case because it in murder insufficient limiting its abused discretion in per witness to ted counsel less than 2 minutes Keenan, argument, time for see 13 Cal. 581 Cash, testimony); State v. 138 review their (1859) (holding was an limitation of 3 hours 167, (1927) (holding S.E. S.C. 136 222 case); abuse in a of discretion murder Stock argument one hour was not sufficient time for 1006, (Fla.1989) ton v. 544 1009 So.2d case); Clair, v. 3 Utah in a murder State St. limiting argument (finding trial in court erred 230, 323, (1955) (holding 2d 282 P.2d 331-32 to 30 a murder trial that lasted minutes in argument capital 40 for murder minutes testified); days two and in 15 witnesses which discretion); State v. case was an abuse of 1058, (Fla. Neal 451 So.2d 1059-60 v. 540, 251, Mayo, P. 42 Wash. 85 254 (finding Dist.Ct.App.1984) court abused trial (holding of 1 hour and 30 min- a limitation limiting argument to min its discretion 25 capital per too in a mur- utes side restrictive case); Fugate second-degree utes in a murder case). der 47, 663, Commonwealth, Ky. v. 254 (1934) (finding 48 25 minutes was insufficient case); was held to have abused its 11. The trial court fully argue v. time State, a murder Willie to 660, (h limiting argument (Miss.1991) follow- discretion So.2d 676 585 oldi least, the testi- part, at because cases in ng limiting punishment court erred in adequate- mony be of the witnesses could not argument capital to 15 minutes murder 3, argument: trial); Tighe, ly 71 reviewed in the time allotted for v. 27 P. 9 State Mont. overruled, States, (8th (1903), grounds v. Rossi v. F.2d other State United his entire to ana- argument simply [appellant’s] permitted devoted counsel [was] ad witnesses, effectively vocate lyzing testimony [his client]. One fac in making [to] tor consider this determina only would have had minute and 49 tion is whether court’s restrictions review, examine, seconds to and comment hamper jury’s ability to understand the Again, on the testimony of each witness. trial.” information and issues at United this seems be an unreasonable restric- (5th Gray, States F.3d tion. Cir.), denied, cert. 520 U.S. 117 S.Ct. evidence, In reviewing addition to (1997). 137 L.Ed.2d 1057 “In all the record demonstrates that at- counsel events, the time must be reasonable and tempted charge to explain the court’s permit adequate should counsel an oppor jury. jury were issues before tunity argument to relate the factual to the complex. both numerous and In the limit- governing principles Strong, law.” him, hurriedly ed time available to counsel So.2d 1240. “Unless one takes the view tried to set forth the three offenses for that counsel’s final should be which be appellant could convicted. He nothing bird’s-eye more than surface re attempted, then within context in-depth analysis view of the case” with no charge, why might court’s to show there evidence, rushed, “a scatter-gun be a reasonable doubt regarding proof no presentation” with real coherence can capital least one of the elements of fairly legitimate oppor deemed as ie., murder, intent to rob. Counsel en- tunity argue jury. case to the Ma explain concept conspir- deavored to leh, 491 So.2d at 292. acy parties and the law of comply with the trial attempting why to show the evidence not rea- could limits, court’s time counsel was frustrated sonably support a ei- guilty verdict under by charge the of the and the com- theory. fact, majority ther the observe plexity legal issues. Counsel’s re- many that counsel did address explain quest for additional time to and objection of in topics the articulated possible refute each of the nine factual twenty- the imposition trial court’s of a might that a guilty scenarios authorize However, majority minute time limit. the verdict was denied. Yet the record re- also that counsel recognizes addressed flects it took the trial 21 judge minutes to in points these a hurried and fash- cursory page charge jury, read the 13 while ion. A cursory argument by mandated only counsel was afforded 20 minutes for overly not restrictive time limitations does Thus, closing argument. appellant’s coun- satisfy guarantee the constitutional of full expected explain, ap- sel somehow representation by counsel. argue charge and the in less time than ply, question reviewing required simply charge “The crucial read explanation, applica- trial court’s time limitations is whether without benefit Inc., (1 ness); Cir.1925) per Prop., 9 wit minute and seconds Maleh v. Florida East Coast Green, 564, 231, 290, ness); (56 People (Fla.Dist.Ct.App.1986) Cal. P. v. 99 34 491 So.2d 292 (1893) (2 witness); per per Roy, 232 and 30 seconds seconds Woodham v. 471 minutes 82, (4 witness); (Fla.Dist.Ct.App.1985) 643 83 132 v. So.2d So.2d minutes Munez (Fla. (4 witness); Ct.App.1994) per Washington, per Dist. minutes wit 614 So.2d at 713 Shores, 1155, ness); (1993) (2 witness); Knapp per 550 1156 and v. So.2d minutes 9 seconds (1 (1 Huntly, (Fla.Dist.Ct.App.1989) sec minute and 45 34 S.W. 923 minute and 22 witness); witness); Strong per per v. Mt. onds Dora Growers seconds Jones Common- wealth, (Fla.Dist.Ct. (1 Co-op., 12 S.E. 228 495 So.2d Va. witness). (1 App.1986) per per minute wit- minute and 46 seconds and seconds a will case best tion, advocacy on both sides Simple logic compels argument. impossible objective an conclusion that this was ultimate promote go task. the innocent convicted and guilty be Herring, 422 U.S. S.Ct. free.” Though I the trial court abused believe able judge, is however “There no 2550. to twen- limiting its discretion learned, intelli- jury, and no however and minutes, that a ty opinion I am also of the benefitted, be and receive may but gent, must not be reversed criminal conviction be a deci- a correct lightly. reaching A criminal should assistance valuable event, if a and defen- portentous sive and conclusion, argument of counsel.” from the upon the is he should look guilty, dant Walker, limit the “[T]o 22 S.W. at 686. and fore- apprehension courtroom with a counsel for defense argument of boding judgment. great prosecution is matter criminal

A has been accused of defendant ut- delicacy, should be done with and crime, this the time and serious and Willie, and caution.” prudence most by jury to be tried place set him at 676. So.2d guilty or peers of his and found either here, majori- presented as issue jury. great- To the guilty one in there recognizes, is close which ty possible est extent all issues which opinion. differences of may legitimate be charge be deter- bear on should however, defense, closing argu- For in this the accused proceeding: mined persuade chance to ment is the last clear court-room, is in is in the may reasonable jury that there bench, box, the is on the judge Herring, guilt. of the defendant’s witnesses, doubt having subpoe- been sworn, By turn severe- duly await their 422 U.S. at S.Ct. naed Society’s have the trial testify. argument, resources the time for ly limiting at that been concentrated time whole and appellant of the deprived decide, within the place order to I counsel. Because representation of full fallibility, question human limits of right Amendment appellant’s Sixth believe one of its guilt or innocence of infringed, by counsel was representation citizens. that the limitation grave I have doubts 72, 90, affect the outcome Sykes, 433 U.S. did not Wainwright (1977). conscience, trial, cannot, But good 53 L.Ed.2d 594 S.Ct. I justice important finality while are Accordingly, I re- conviction. affirm the nation, considerations, this people spectfully dissent. state, constitu-

and of this have established guarantees for the accused that

tional uphold, sworn to and if

judiciary are arbitrary limitation of imposes consent, counsel, upon against his

time trial. at the risk of a new

must be done

Green, P. at presented by the the evidence

While substantial, I appellant was against

State a fair trial. afforded

do believe was sys- premise adversary

“The of our very partisan justice

tem criminal

Case Details

Case Name: Dang v. State

Court Name: Court of Appeals of Texas

Date Published: Mar 6, 2003

Citation: 99 S.W.3d 172

Docket Number: 14-00-00560-CR

Court Abbreviation: Tex. App.