                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-12-00294-CR

                                        Vanessa CAMERON,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CR-4286C
                              Honorable Ron Rangel, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 18, 2013

REVERSED AND REMANDED

           Vanessa Cameron appeals her conviction for the murder of her former boyfriend. Because

we conclude that Cameron’s constitutional right to a public trial was violated during the jury

selection phase of her trial, we reverse the trial court’s judgment and remand for a new trial.

                             FACTUAL AND PROCEDURAL BACKGROUND

           On December 13, 2010, Samuel Johnson, Jr. was shot to death. A few days later, his body

was found in a cemetery. Cameron, Johnson’s former girlfriend and the mother of Johnson’s

young son, was charged with murdering Johnson. The State alleged that Cameron, upset over
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Johnson leaving her for another woman, concocted a plot to murder Johnson so that she could

collect life insurance proceeds as Johnson’s named beneficiary. A jury found Cameron guilty of

murder, and the trial court sentenced Cameron to seventy years’ imprisonment and imposed a

$5,000 fine. Cameron now appeals.

                                            DISCUSSION

       On appeal, Cameron argues that (1) her right to a public trial under the Sixth Amendment

to the United States Constitution was violated by the trial court during voir dire, (2) the trial court

erred in denying her motion to suppress her oral statements obtained in violation of the Texas

Constitution, article 38.22 of the Texas Code of Criminal Procedure, and the Fifth and Fourteenth

Amendments to the United States Constitution, and (3) the trial court abused its discretion in

admitting rebuttal evidence of an alleged prior solicitation over her objections based on Rules 403

and 404(b) of the Texas Rules of Evidence. We begin by addressing the public trial issue.

                                     RIGHT TO PUBLIC TRIAL

       Voir Dire Proceedings

       Prior to the beginning of voir dire, the bailiff ushered Cameron’s family and friends out of

the courtroom, stating that only the jury panel members would be allowed inside the courtroom

during jury selection and there was no room for the public. When the trial judge took the bench,

and before the venire panel was brought into the courtroom, defense counsel brought to the trial

court’s attention that the public, including Cameron’s family and friends, had been excluded from

the courtroom. Counsel requested that the trial court permit Cameron’s family and friends to be

present in the courtroom during voir dire and objected to their exclusion on the ground that

Cameron was being denied her right to a public trial under the Sixth Amendment. The trial court

responded that it recognized Cameron’s right to have her family and friends present during voir

dire, but explained that due to the sixty-five venire members and the lack of additional chairs, it
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did not “see any room whatsoever where anybody else would be able to sit and observe.” The

court further stated, “before we called the case, we saw a pretty significant number of family

members that were walking in. There is no way this courtroom can accommodate them, and I

certainly appreciate the security concerns of . . . the sheriff’s department. It is a public trial. It’s

an open trial. Certainly people have the opportunity to observe. We just don’t know where to put

them.”

         At that point, defense counsel asked if the trial court was overruling his objection to

exclusion of the public. The court replied, “No, I’m not ruling. I’m just telling you, where can

we put them?” When counsel reiterated that he was still requesting a ruling, the court stated,

“you’re objecting to something I haven’t made a ruling [on].” Defense counsel stated he was

asking for a ruling on his objection to exclusion of the public. The court replied, “No. No, no.

The Court has never ruled that. I’ve never ruled that the public is excluded. All I’m saying is,

where do you suggest we put them?” Counsel suggested the court could bring in chairs and place

them in front of the bench, stating “we can find places to put them.” The judge dismissed the

suggestion as unreasonable, citing “security issues” and the “security risk” of having spectators

stand next to him. The court then asked defense counsel if he would be satisfied with opening the

courtroom doors and “have them all stand in ‘that little hallway there’ so they can observe the

whole thing?” Counsel responded, “I just wanted an alternative . . . If you want to open those

doors and put chairs and have people – have the public sit there, that’s fine with me.” The court

replied that it did not have enough chairs, but “if you want, we can open up those doors in the back

and have them stand to where they can observe and hear every single thing that’s going on.”

Joining the discussion for the first time, the prosecutor stated he thought opening the courtroom

doors and permitting the public to stand in that space would be a fire code violation. The court

then stated, “And that – I mean, we’re having issues. Counsel obviously wants her entire family
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here. I mean, I don’t know what else we could do. The courtroom’s going to be absolutely stuffed

with venirepanel members.”

         Defense counsel again attempted to obtain a ruling on his objection and the court again

declined to rule, explaining that his objection was “premature” because the court had not ruled that

the public was excluded from voir dire. When counsel explained that his objection was based on

the bailiff’s exclusion of the public that had already occurred prior to the judge taking the bench,

the court again acknowledged Cameron’s right to an open court proceeding but reiterated the lack

of space and available chairs, stating “I just don’t know how we could accommodate.” When

counsel asked if his objection was therefore overruled, the court replied, “I am telling you that you

can have people in this courtroom . . . I just don’t know where to put them. So I’m not making a

ruling that anybody’s excluded. I’m not making a ruling denying anything that you’re asking

because I haven’t ruled on what it is that you’re asking. I haven’t told you that you cannot have

people in the courtroom. Tell me where to put them and we’ll put members of her family.”

Counsel stated, “okay. Thank you, Judge.” During the entire exchange regarding exclusion of the

public during voir dire, the prosecutor was silent except for pointing out the potential fire code

violation. The venire panel was then brought into the courtroom and the voir dire proceedings

began.

         Later, during the middle of general voir dire, after a recess required by a venire member’s

need for medical attention, the court revisited the issue of the public’s exclusion from the

courtroom. Outside the presence of the venire panel, the court again stated on the record that it

did not close the voir dire proceedings, but also added, “[d]uring the course of discussions, the

Court did analyze the four-prong questions” laid out in Waller v. Georgia, 467 U.S. 39 (1984).

The court described its Waller analysis as follows:



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               Specifically, the Court considered the size and configuration of the
       courtroom. 65 venirepanel members have been summoned to the courtroom. In
       order to accommodate all 65, there are about ten chairs that are placed in the gallery.
       Additionally, there are three or -- three other chairs located next to the jury box.
       Every single chair in the gallery and in the jury box is filled with the 65 individuals.

               The court reporter is seated directly in front of the defense table directly in
       front of the jury box, so there would be no room there. Directly in front of the
       defense table there is a table used by the probation department that has a computer,
       a printer, some files. Directly next to the defense table is a panel that has been set
       up by the defense for use during voir dire. Directly behind that panel is a box where
       the bailiffs sit, a bailiff’s table.

               The Court considered the size of the configuration. [The] Court also
       considered alternative courts, knowing that the juries -- the central jury room is not
       adequately sufficient for a trial such as this. Also, the Court is expecting a
       potentially emotionally charged jury trial, this originally being filed, I believe, as a
       capital. I know that it is now a murder charge.

               As such, the space within the courtroom area for the participants and the
       bailiffs is very narrow. The Court does not want to make any jury or potential
       jurors feel in any way constrained with truthfulness and honesty, making them
       uncomfortable in regards to potential family members next to them.

               Essentially, the bottom line is the Court was concerned about safety and
       safety in the courtroom. Recognizing that the courtroom is not closed, Defense,
       before you begin your general voir dire, you’re certainly able to bring in some
       family members and we will do our best to accommodate them in areas around the
       gallery where the Court, where the bailiffs feel the security will not be an issue.

       This is the last reference to exclusion of the public made on the record during trial. There

is no indication in the record that any of Cameron’s family or friends were permitted inside the

courtroom during the remainder of voir dire, or that the courtroom’s doors into the foyer area were

ever opened or that any member of the public stood there during voir dire.

       Motion for New Trial

       After Cameron was convicted and sentenced, she filed a motion for new trial alleging her

right to a public trial was violated during voir dire. Cameron’s motion included twelve affidavits

by her friends and family, including her mother, stating that the bailiffs excluded them from the

courtroom before voir dire began and they did not witness any of the voir dire proceedings. Most
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of the affiants declared that they left the courthouse for the day after being excluded from voir dire.

In her affidavit, Cameron’s mother states that she asked the bailiff whether she could sit on the

floor, but he refused her request, stating she would be a security risk. Cameron also attached an

affidavit by an attorney on an unrelated case who witnessed the bailiffs clearing the courtroom

before the venire panel was brought inside. The State filed a response, attaching affidavits from

the two bailiffs stating they did not close the courtroom to the public during voir dire. In his

affidavit, one bailiff admits that Cameron’s mother asked to sit on the floor during voir dire and

he refused based on security reasons. The State also submitted proposed findings of fact and

conclusions of law. No hearing was held on the motion for new trial, and it was overruled by

operation of law. The court adopted the State’s proposed findings and signed the written findings

of fact and conclusions of law reciting, in part, that “[t]he Court never ruled that observers were

excluded from the voir dire or any other part of the trial in this case.” 1

            Analysis

            Under the Sixth Amendment, an accused has the right to a public trial in all criminal

prosecutions. U.S. CONST. amend. VI; Presley v. Georgia, 558 U.S. 209, 212 (2010) (per curiam)

(Sixth Amendment right to public trial was created for benefit of the accused). The right extends

to the jury selection phase of trial, including voir dire of prospective jurors. Presley, 558 U.S. at

212-13. The longstanding right to a public trial serves important societal interests of ensuring

fairness and accountability in the judicial system. Press-Enterprise Co. v. Superior Court of Cal.,

464 U.S. 501, 508 (1984) (addressing the right to a public trial under the First Amendment which

extends to the press and public). The right to a public trial is not absolute, however, and must give

way to other competing rights or interests under certain, rare circumstances. Waller v. Georgia,



1
    All of the trial court’s written findings of fact and conclusions of law are set forth verbatim in the dissenting opinion.

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467 U.S. 39, 45 (1984). In Waller, the Supreme Court provided standards for courts to apply

before excluding the public from any stage of a criminal trial, stating, “[T]he party seeking to close

the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be

no broader than necessary to protect that interest, the trial court must consider reasonable

alternatives to closing the proceeding, and it must make findings adequate to support the closure.”

Id. at 48. Violation of a criminal defendant’s right to a public trial is structural error that does not

require a showing of harm. Johnson v. United States, 520 U.S. 461, 468-69 (1997); Steadman v.

State, 360 S.W.3d 499, 510-11 (Tex. Crim. App. 2012).

        In determining whether any portion of a trial was closed to the public, the focus is not on

whether the defendant can show that any person was actually excluded. Lilly v. State, 365 S.W.3d

321, 331 (Tex. Crim. App. 2012). Rather, we look to “the totality of the evidence and determine

whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate

public attendance’ . . . .” Id. (quoting Presley, 558 U.S. at 215). It is the trial court’s duty to

consider all reasonable alternatives to accommodate the public—the duty does not fall on the

parties to suggest reasonable alternatives. Presley, 558 U.S. at 214; Steadman, 360 S.W.3d at 505

(no burden on defendant to proffer alternatives). Placement of this duty on the trial court is based

on the premise that “[t]he process of juror selection is itself a matter of importance, not simply to

the adversaries but to the criminal justice system.” Presley, 558 U.S. at 214 (quoting Press-

Enterprise, 464 U.S. at 505). The United States Supreme Court specifically recognized “reserving

one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or

instructing prospective jurors not to engage or interact with audience members” as reasonable

alternatives to accommodate the public during voir dire. Presley, 558 U.S. at 215; Steadman, 360

S.W.3d at 505.



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       The dissenting opinion suggests that Lilly requires a sequential two-part analysis: first, the

defendant has the burden to show that his trial was closed to the public; then, only after closure is

established does the reviewing court consider whether the trial court failed to take every reasonable

measure to accommodate public attendance at trial. To the contrary, Lilly instructs us that in

determining whether the trial was closed we look at the totality of the circumstances — which

includes a determination of whether the court took every reasonable measure to accommodate

public attendance. See Lilly, 365 S.W.3d at 331. As described in Lilly, the analysis is one broad

inquiry, not a two-step process. This interpretation of Lilly is supported by the substance of the

opinions on this issue, as well as by the very structure of the Court of Criminal Appeals’ opinion

in Lilly. In the opinion, the Court discusses the trial court’s obligation to take every reasonable

measure to accommodate the public under the heading “Was Appellant’s trial closed?” See id. at

330-31. This indicates that the Court of Criminal Appeals views the analysis as a broad inquiry,

not a sequential two-step analysis in which the question of reasonable accommodations is not

reached unless the defendant proves the trial was closed. In addition, the United States Supreme

Court in Waller phrased its four-part test, which includes whether the trial court considered

reasonable alternatives to closure, as a standard for courts to apply before excluding the public

from any stage of a criminal trial. See Waller, 467 U.S. at 48.

       The instant case presents an unusual situation because no party sought to close the trial to

the public. Defense counsel emphatically requested that Cameron’s family and friends be allowed

into the courtroom to observe the voir dire proceedings. The trial court was equally adamant in its

insistence that it had not closed the courtroom to the public—there simply was no more room.

Despite giving deference to the trial court’s written findings, the record shows that members of the

public were, in fact, excluded from the courtroom during the jury selection phase. Defense counsel

stated on the record that the bailiffs told Cameron’s family and friends to leave the courtroom
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before the venire panel arrived and before the judge took the bench. The State did not counter that

assertion of fact. Cameron’s counsel then engaged in a lengthy discussion with the trial judge

concerning his objection that the public had been excluded from voir dire. Again, the State

remained silent. Although the trial court repeatedly stated that it was not excluding the public

from voir dire, the court stated several times on the record, before and during voir dire, that there

was not enough room for any spectators inside the courtroom, that all available seats were occupied

by venire members, and that unspecified “security issues” foreclosed accommodating the public

anywhere inside the courtroom. Even the court’s written finding No. 14, stating, “If observers had

entered after the jury panel was seated, they would have been allowed back in the courtroom by

the court during the proceedings in this case” implies that no public observers were present during

voir dire. Again, the defendant need not show that any one person was actually excluded. See

Lilly, 365 S.W.3d at 331. However, it is undisputed that Cameron’s mother was excluded from

the courtroom during voir dire. Even if we acknowledge that she asked to sit on the floor and the

bailiff denied her request because it presented a security risk, there is no showing that any attempt

was made to provide a reasonable, yet secure, accommodation for her to attend her daughter’s trial.

Placing an extra chair in the courtroom, propping open the courtroom doors to allow observers in

the foyer, or splitting the venire panel were all arguably reasonable accommodations, but the record

does not show any were actually employed. Instead, the record before this Court indicates that no

one other than the venire panel, counsel, and court staff was accommodated in the courtroom

during voir dire. Thus, despite the trial judge’s insistence that he had not closed the courtroom,

the record shows it was, in fact, closed.

       Even if we assume the one alternative offered by the trial court — to allow the public to

stand in the foyer leading into the courtroom — was a “reasonable alternative,” the record does

not show it was acted on or made available by the court. After defense counsel requested chairs
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and the court stated there were none, the record does not show whether, in fact, the courtroom

doors were opened up into the foyer to allow spectators to stand there. 2 The record is simply silent

on whether this accommodation offered by the trial court was indeed provided. The trial courts

are directed to take action in providing reasonable accommodations, not merely to offer or suggest

an accommodation. Lilly, 365 S.W.3d at 331 (noting trial court’s obligation “to take every

reasonable measure to accommodate public attendance”) (emphasis added) (quoting Presley, 558

U.S. at 215). In light of the trial court’s affirmative duty to take action, we cannot agree with the

State’s contention, and the dissenting opinion’s suggestion, that the court’s obligation was

somehow relieved or met when defense counsel “implicitly rejected the trial court’s offer” by

requesting chairs be placed in the foyer. The court’s offer was simply not enough to fulfill its duty;

action was required.

         In addition, the record is clear that the trial court did not consider one of the key alternatives

specifically mentioned in Presley as a reasonable accommodation for the public during voir dire—

the option of splitting the venire panel. See Presley, 558 U.S. at 215; see also Steadman, 360

S.W.3d at 505. In Steadman, the trial court considered several alternatives to closure, “but

discounted them because they would compromise ordinary courtroom-security measures, would

cause ‘delay,’ or were simply ‘inconvenient.’” Steadman, 360 S.W.3d at 508. The Court of

Criminal Appeals held the trial court had failed to consider “all reasonable alternatives” as required

by Presley and Waller, including, specifically, “an alternative that would have solved both the

jury-contamination issue and the courtroom-security issue: ‘dividing the jury venire panel to

reduce courtroom congestion.’” Id. at 509. Based on the trial court’s failure to make findings

specific enough to warrant closure of the courtroom during voir dire, and the court’s failure to


2
 The record is also silent on whether a spectator could actually see and hear the voir dire proceedings from the vantage
point of the foyer and thus whether the foyer was a reasonable accommodation.

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consider all reasonable alternatives to closure, the Court held that Steadman’s right to a public trial

was violated. Id. at 510. Here, as in Steadman, the trial court considered one alternative, i.e.,

standing in the foyer, but failed to consider, and take, all reasonable measures to accommodate the

public during the voir dire proceedings, including splitting the venire panel. See id. at 509; see

also Presley, 558 U.S. at 214-15; Lilly, 365 S.W.3d at 331-32.

       Further, the trial court’s findings are not sufficiently specific with respect to its concerns

regarding the risk of venire panel contamination, courtroom security, and space constraints, as well

as its consideration of all reasonable measures to accommodate the public during voir dire. See

Steadman, 360 S.W.3d at 506-08 (trial court failed to articulate a “tangible threat” based on

concrete facts, citing only a broad and generic concern about possible panel contamination and

security). Under Presley, both venire panel contamination and courtroom security could be

sufficient overriding interests. Presley, 558 U.S. at 215. However, the record here does not include

“findings specific enough that a reviewing court can determine whether the closure order was

properly entered” based on either interest. Press-Enterprise, 464 U.S. at 510. Nowhere did the

trial court point to specific, concrete facts of previous courtroom outbursts or attempts to influence

panel members by Cameron’s family or friends. The court made no findings that Cameron or her

family or friends posed a courtroom security threat. See Steadman, 360 S.W.3d at 506. Further,

the trial court’s concerns regarding space, security, and panel contamination could have been

addressed by relocating the trial, “dividing the jury venire panel to reduce courtroom congestion[,]

or instructing prospective jurors not to engage or interact with audience members.” Presley, 558

U.S. at 215. The trial court did not consider all reasonable alternatives to closure, notably, dividing

the venire panel. Further, in rejecting relocation of voir dire to other courts or the central jury

room, the court did not specify why those alternative locations were insufficient. See Steadman,

360 S.W.3d at 508 (concluding that the “delay” or “inconvenience” the trial court found would be
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caused by relocating voir dire to the central jury room did not, by themselves, satisfy Presley’s

holding that neither convenience nor judicial economy can constitute an “overriding interest”).

         Based on the foregoing reasons, we conclude that the trial court, despite its commendable

good faith efforts, failed to comply with the mandates of the Sixth Amendment. While the court

offered an accommodation of allowing members of the public to observe the voir dire proceedings

from the foyer, the record does not establish that any steps were taken to facilitate this proffered

accommodation (i.e., propping open the doors) 3 and that the accommodation was reasonable.

Further, the court did not consider all reasonable measures to accommodate the public during voir

dire, notably failing to consider splitting the venire panel. Accordingly, we hold that Cameron’s

right to a public trial was violated. See Presley, 558 U.S. at 216; see also Steadman, 360 S.W.3d

at 510. Because the error is structural error, the trial court’s judgment must be reversed and the

cause remanded for a new trial. See Presley, 558 U.S. at 216 (when the record fails to show the

trial court considered all reasonable alternatives to accommodate the public, it is reversible error);

see Steadman, 360 S.W.3d at 510-11 (when the constitutionally tainted portion of trial

encompasses the entire jury selection process, relief involves a new voir dire and a new jury,

thereby necessitating a new trial).

         Given our disposition of this issue, we need not reach the other appellate issues raised by

Cameron. See TEX. R. APP. P. 47.1. Accordingly, we reverse the trial court’s judgment and remand

for a new trial.


                                                             Rebeca C. Martinez, Justice




3
  We acknowledge that the possibility of a fire code violation was raised, but this Court’s recent opinion in Garcia v.
State rejected this concern, recognizing that “[c]learly, the trial court has some responsibility for complying with
applicable safety regulations, but that responsibility does not excuse the trial court from considering other alternatives
to closing voir dire.” Garcia v. State, 401 S.W.3d 300, 304 (Tex. App.—San Antonio 2013, pet. ref’d).

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PUBLISH




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