                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-17-00121-CR


CHRIS SHANE SPENCER                                                      APPELLANT

                                           V.

THE STATE OF TEXAS                                                             STATE

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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                      TRIAL COURT NO. CR13544

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                          MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      Appellant Chris Shane Spencer appeals his convictions for continuous

sexual abuse of a child and injury to a child. In two points, Spencer argues that

the trial court denied him his rights to a fair and public trial with the assistance of

counsel of his choosing. We will affirm.



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       See Tex. R. App. P. 47.4.
                                  II. BACKGROUND

      Because Spencer does not challenge the sufficiency of the evidence or

raise a point that requires a complete recitation of the facts, only those facts

necessary to the resolution of the points he brings on appeal are included in this

opinion.

      After the State charged Spencer, the trial court determined that he was

indigent; thus, the trial court appointed him counsel—Pamela Walker. Just prior

to the jury panel being seated for voir dire, the following exchange between

Walker and the trial court occurred:

              MS. WALKER: Your Honor, if it’s okay, Tracy Bush is going to
      sit in with me as second (inaudible) --

            COURT REPORTER: I’m sorry, counsel. I didn’t hear what
      you said.

           MS. WALKER: Tracy Bush is going to sit in with me as
      second chair.

               THE COURT: Yeah. I mean --

               MS. WALKER: Is that all right?

               THE COURT: Pro bono, I assume?

               MS. WALKER: Oh, yeah. It will be for free. Well, I pay her,
      but --

      (Recess)

            THE COURT: Have a seat, please. All right. Seat the jury
      panel, please.

               MS. WALKER: Your Honor, may we approach?



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            [Prosecutor]: Counsel, --

            MS. WALKER: This is off the record.

            THE COURT: Well, there’s no reason to approach.

             MS. WALKER: Tracy Bush is in the JP court, and she’ll be
      here, and is it all right if she walks around the side to sit down while
      they’re seating the jury? I am so sorry. She --

              THE COURT: Well, if the jury is seated, no, she can’t do that.
      If the jury is seated and voir dire is going on, --

            MS. WALKER: Okay.

            THE COURT: -- no.

            MS. WALKER: Okay.

            THE COURT: Now, if we’re -- if the -- if the jury is just being
      seated, then, yeah, that’s fine.

            MS. WALKER: Okay.

             THE COURT: But once the jury is seated and voir dire starts,
      nix nix.

            MS. WALKER: Okay. Thank you.

            THE COURT: All right. Seat the jury.

      Ultimately, a jury found Spencer guilty of continuous sexual abuse of a

child and injury to a child and assessed punishment at ninety-nine years and ten

years, respectively.   The trial court rendered judgment accordingly. Spencer

then filed a motion for new trial. In his motion and at the motion-for-new-trial

hearing, Spencer argued that he had been denied his right to co-counsel, the

counsel of his choice, and the effective assistance of counsel when the trial judge



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denied Walker’s request that Bush be allowed to come to counsel table after voir

dire had begun.      The trial court denied Spencer’s motion, and this appeal

followed.

      In his initial briefing to this court, Spencer argued that he had been denied

his right to a fair, impartial, and public trial under both the United States’ and

Texas’s constitutions. Specifically, Spencer argued that the trial court violated

his rights when it “denied” Bush from being admitted to the courtroom. In the

interest of justice, this court abated this case to the trial court so that the trial

court could make specific findings regarding whether Bush had been denied

access to the trial. The trial court found that all parts of the trial were open to the

public. The trial court further found that,

      Tracy Bush was not [Spencer’s] court appointed trial counsel.
      Pamela Walker was. Tracy Bush was not present in the courtroom
      when jury selection began. The trial court did not exclude Tracy
      Bush, nor anyone else, from the courtroom during voir dire. The trial
      court simply set the parameters for the presence of Ms. Bush at the
      defense counsel table during voir dire, i.e. that she would not be
      allowed to be seated at the defense counsel table, “if the jury is
      seated and voir dire is going on.” Likewise, the trial court said, “ . . .
      if the jury is just being seated, then, yeah, that’s fine. But once the
      jury is seated and voir dire starts, nix nix.” The response of
      Ms. Walker to that instruction was, “Okay. Thank you.” The court
      merely limited where Ms. Bush could sit in the courtroom should she
      arrive after the jury panel was seated and voir dire was under way.

      After the court made its fact findings and this appeal was reinstated,

Spencer submitted his supplemental brief arguing that he had been denied his

right to a fair trial and the assistance of counsel of his choosing.




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                                    III. DISCUSSION

      A.     Spencer’s Right to a Public Trial

      In his first point, Spencer argues that the trial court violated his rights to a

public trial “when he excluded defense counsel from the courtroom without any

justification, thereby violating [Spencer’s] constitutional guarantee to a fair and

impartial trial of his case.” The State counters that Spencer has not preserved

this argument for appeal and that the trial court did not exclude Bush from the

courtroom but that rather, the trial court merely set parameters on whether Bush

would be allowed to interrupt the court proceedings by being allowed to come to

the defense-counsel table after the jury panel was seated and voir dire had

begun. We agree with the State.

      A complaint that a defendant’s right to a public trial was violated is subject

to forfeiture. Peyronel v. State, 465 S.W.3d 650, 652–53 (Tex. Crim. App.), cert.

denied, 136 S. Ct. 548 (2015). And an objection must be made as soon as the

basis for the objection becomes apparent, and the objection must be made with

sufficient specificity that it informs the trial court of the basis of the objection.

Courson v. State, 160 S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.).

Here, the record indicates that Spencer’s court-appointed attorney never made a

right-to-public-trial objection. In fact, it is difficult to construe Walker’s discussion

with the trial court as anything more than a request—one that Walker specifically

declared was to be “off the record.”       Moreover, once the trial court informed

Walker of the parameters of allowing Bush to come to counsel table, Walker’s


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response was, “Okay.” And Walker never once mentioned Spencer’s right to a

public trial. Thus, Spencer’s complaint on appeal that he was denied a public

trial is forfeited because he never objected to the trial court that this right was

being violated.

      But even assuming that Walker’s request to the judge was a proper

objection regarding Spencer’s right to a public trial, the trial court specifically

found that all parts of Spencer’s trial were open to the public and that Bush was

not denied access to the courtroom but was merely not allowed to come to

counsel table once the jury panel had been seated and voir dire had begun.

Thus, the record does not support that Bush was denied access to any portion of

the trial. We overrule Spencer’s first point.

      B.     Spencer’s Right to Counsel of His Own Choosing

      In his second point, Spencer argues that he was denied his right to a fair

trial and the assistance of counsel of his choosing when the trial court did not

allow Bush to come to counsel table after the jury panel was seated and voir dire

had begun. We disagree.

       The right of the accused to choose counsel, pursuant to the Sixth

Amendment, does not extend to defendants who have counsel appointed for

them by the trial court. Whitney v. State, 396 S.W.3d 696, 700 (Tex. App.—Fort

Worth 2013, pet ref’d).

      Here, after the trial court found Spencer indigent, it appointed Walker as

his attorney. Thus, Spencer was not entitled to also have Bush represent him,


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and his rights to an attorney were not violated.    See Malcom v. State, 628

S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982) (stating that once “the court

has appointed an attorney to represent the indigent defendant, the defendant has

been accorded the protections provided under the Sixth and Fourteenth

Amendments”). We overrule Spencer’s second point.

                               IV. CONCLUSION

      Having overruled both of Spencer’s points on appeal, we affirm the trial

court’s judgment.




                                                 /s/ Bill Meier
                                                 BILL MEIER
                                                 JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 24, 2018




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