Case Information
*1 Reversed and Remanded and Opinion filed October 18, 2012.
In The
Fourteenth Court of Appeals NO. 14-10-00841-CR
ARTHUR JERONE WOODS, Appellant, V.
THE STATE OF TEXAS, Appellee.
On Appeal from the 232nd District Court
Harris County Trial Court Cause No. 1236016 O P I N I O N
Appellant Arthur Jerone Woods appeals his jury conviction for theft of property valued at more than $20,000 but less than $100,000. In three issues, Woods argues that the trial court violated his right to a public trial by closing the courtroom during voir dire and erred in two evidentiary rulings. We hold that the trial court violated Woods’s right to a public trial, and, without reaching the evidentiary issues, we reverse and remand.
I
A grand jury indicted Woods for theft of property valued at more than $200,000. *2 The trial court conducted voir dire on March 1, 2010, with the Honorable Mary Lou Keel presiding. Deputies Marcus Clay and Dave Nixon arrived to seat the jury panel, but before doing so, Deputy Clay instructed the spectators to leave the courtroom and wait outside until voir dire was over. Among those spectators were Freda Ariza and Walter Ballard, both members of Woods’s defense team, and Woods’s wife, Wendy. Ariza reentered the courtroom, told Deputy Clay that she was part of Woods’s defense team, and asked permission to stay. Deputy Clay allowed her to sit in the jury box. Robert Jones, who represented Woods’s codefendant, also sat in the jury box. Wendy testified that she identified herself as Woods’s wife to Deputy Clay and asked him to let her stay for voir dire but that Deputy Clay denied her request, explaining that the jury panel was going to need all the seating. Deputy Clay, however, testified that he does not remember anyone representing themselves to him as Woods’s wife. Ballard did not object to Deputy Clay’s instructions or request permission to stay. After voir dire was over, Wendy and Ballard told Woods’s attorney, James McGuire, of their eviction.
The next morning, Woods filed a motion for mistrial, arguing that the court violated his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution as well as the Texas Constitution’s bill of rights. The trial court denied the motion, explaining as follows:
The [c]ourt’s read the motion and the [c]ourt would like to comment that the motion misrepresents this [c]ourt’s approach to voir dire. If it presents what happened yesterday as far as the [c]ourt’s concerned the [c]ourt was not aware that anybody was excluded from the courtroom. No objection was raised and in fact there were a couple people sitting in the jury box who are not directly associated with this case who observed voir dire. And in the past when family members have wanted to watch voir dire they have been accommodated but no request was made to this [c]ourt and the [c]ourt was not aware that anybody wanted to watch voir dire otherwise the [c]ourt would have followed its usual policy of letting observers watch from the jury box.
Woods later filed a motion to recuse Judge Keel based on the voir dire proceedings, but she declined to voluntarily recuse herself, and the motion was denied. Ultimately, the jury convicted Woods of the lesser-included offense of theft of property valued at more than *3 $20,000 but less than $100,000 and sentenced him to seventeen years’ imprisonment in the Texas Department of Criminal Justice, Institutional Division.
II
In his first issue, Woods asserts that the trial court violated his right to a public trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 10, of the Texas Constitution. [1]
A
The Sixth Amendment guarantees the accused in all criminal prosecutions the
right to a public trial. U.S. Const. amend. VI;
Herring v. New York
,
The right to a public trial is not absolute: It may be outweighed by other
competing rights or interests, such as interests in security, preventing disclosure of non-
public information, or ensuring that a defendant receives a fair trial.
Waller v. Georgia
,
We apply a bifurcated standard of review to the trial court’s ruling on Woods’s
public-trial claim, reviewing legal conclusions de novo and factual findings for an abuse
of discretion.
See Zamorano v. State
, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).
Because the trial court ruled in favor of the State on Woods’s motion for mistrial, we
must presume the trial court resolved any disputed fact issues in the State’s favor, and we
must also defer to the implied findings of fact that the record supports.
Id.
(citing
State v.
Munoz
,
B
The State argues that Woods failed to preserve this issue for appeal because he did not object to the trial court when Deputy Clay excluded the spectators from the courtroom. Woods insists that his motion for new trial was timely because he did not learn of the closure until after voir dire ended and the trial court had recessed. [2]
To preserve error for appeal, the complaining party must make “a timely request,
objection, or motion” to the trial court. Tex. R. App. P. 33.1(a)(1). To be timely, a party
must complain at the earliest possible opportunity, which arises as soon as the error
becomes apparent such that the party knows or should know that an error has occurred.
Hollins v. State
, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991);
Martin v. State
, 246
S.W.3d 246, 258 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The purpose of the
preservation requirement is threefold: (1) to ensure that the trial court will have an
opportunity to prevent or correct errors, thereby eliminating the need for costly and time-
consuming appeal and retrial; (2) to guarantee that opposing counsel will have a fair
opportunity to respond to complaints; and (3) to promote the orderly and effective
presentation of the case to the trier of fact.
Gillenwaters v. State
, 205 S.W.3d 534, 537
(Tex. Crim. App. 2006) (citing
Saldano v. State
,
In this case, McGuire was in the front of the courtroom preparing for voir dire when Deputy Clay approached the spectators, who sat in the back of the room, and instructed them to leave. Later, when Ariza identified herself to Deputy Clay, McGuire called out to confirm that she was part of the defense team, but Ariza testified that she does not think McGuire knew that anyone else had been excluded. Woods testified that his defense team was busy preparing for voir dire and that there was no discussion among them about anyone being excluded. After Deputy Clay seated the jury panel, neither McGuire nor Woods would have been able to distinguish potential jurors from spectators. Although both would have recognized Wendy, her absence would not have been readily ascertainable in a full gallery while McGuire and Woods focused on voir dire. Additionally, the trial court consistently maintained that voir dire was not closed, which further suggests that closure was not so apparent that Woods should have been aware of it during voir dire. Therefore, we conclude that Woods timely filed his motion contesting closure of voir dire at his earliest possible opportunity and thereby preserved this issue for appeal.
C
The State also argues that voir dire was not closed, relying on the fact that the trial court permitted Ariza and Jones to sit in the jury box and Deputy Clay’s testimony that “those who wish to remain in the courtroom during voir dire are accommodated.”
Trial courts must take every reasonable step to accommodate public attendance at
criminal trials.
Presley
, 558 U.S. at 725. The exclusion of a specific person or group,
even if only temporary, constitutes a partial closure.
See, e.g.
,
Douglas v. Wainwright
In this case, the trial court asserts that it was unaware that anyone was excluded
from voir dire. But that is constitutionally irrelevant to whether the court was, in fact,
closed.
See Walton
,
D
The State further argues that, because the trial court permitted Ariza and Jones to watch voir dire from the jury box, any closure that did occur was only partial and thus subject to the substantial-reason requirement rather than the overriding-interest requirement.
The public-trial guarantee enhances both the basic fairness of the criminal trial and
the appearance of fairness so essential to public confidence in the system.
Press-Enter.
Co.
, 464 U.S. at 508. It protects criminal defendants against possible abuses of judicial
power and enhances the integrity of the judicial system by encouraging witnesses to
*8
come forward, discouraging perjury, and assuring the public that courts are following
procedures and observing standards of fairness.
Waller
,
Although the trial court permitted Ariza and Jones to watch voir dire from the jury box, we doubt the presence of a codefendant’s attorney and a member of Woods’s defense team effectively preserved the safeguards of a public trial. Nevertheless, we do not reach a conclusion regarding the extent of this closure because the trial court had no reason, let alone a substantial reason or an overriding interest, to justify excluding *9 spectators from voir dire.
The State argues that excluding spectators was a matter of “practicality” due to the limited gallery seating. But the trial court not only failed to adopt that rationale, it specifically contradicted it by acknowledging that it would have been appropriate for spectators to sit in the otherwise-vacant jury box during voir dire. Therefore, even according to the trial court, limited gallery seating was no reason to exclude spectators from the entire courtroom.
* * *
Because the trial court had neither a substantial reason nor an overriding interest to justify excluding members of the public from the courtroom during voir dire, we need not consider the remaining elements that are required to justify closure. We conclude that the trial court violated Woods’s right to a public trial and, because this structural error requires automatic reversal, we do not address Woods’s evidentiary issues. We reverse and remand this cause for further proceedings consistent with this opinion.
/s/ Jeffrey V. Brown Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Publish — T EX . R. A PP . P. 47.2(b).
Notes
[1] Because there is no significant textual difference between the language guaranteeing the right to
a public trial in the Sixth Amendment to the United States Constitution and article I, section 10, of the
Texas Constitution, Texas follows the United States Supreme Court and the federal courts of appeal
concerning this right.
Uranga v. State
,
[2] Woods alternatively argues that structural errors can be raised for the first time on appeal, while the
State argues that a public-trial claim is subject to the error-preservation rules. The Court of Criminal
Appeals has stated that the courts of appeals have confused the concept of “structural error,” which has to
do with the harmfulness of error, with the concepts of systemic requirements, waivable rights, and
forfeitable rights, which have to do with preservation of error.
Mendez v. State
,
[3]
See also Farmer
, 32 F.3d at 371 (concluding that the victim’s age, the brutal nature of the
offense, and the victim’s well-reasoned fear of the defendant and his family was more than enough to
justify excluding the defendant’s family during the victim’s testimony);
Woods
,