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


                                     OPINION


       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.
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
                                            2
$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, 422 U.S. 853, 856–57
(1975); Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012). The Fourteenth
Amendment extends this fundamental right to defendants in state criminal prosecutions.
U.S. Const. amend. XIV; Herring, 422 U.S. at 857; In re Oliver, 333 U.S. 257, 266–67
(1948)). Further, the right to a public trial extends to the voir dire of prospective jurors.
Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 724 (2010); see also Steadman v. State,
360 S.W.3d 499, 510 & n.41 (Tex. Crim. App. 2012). Trial courts must take every
reasonable measure to accommodate public attendance at criminal trials, and a violation
of a defendant’s public-trial right is a structural error that does not require a showing of
harm and warrants automatic reversal. Presley, 558 U.S. at 725; Johnson v. United States,
520 U.S. 461, 468–69 (1997); Lilly, 365 S.W.3d at 328; Steadman, 360 S.W.3d at 510.

        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,
467 U.S. 39, 45 (1984); Lilly, 365 S.W.3d at 328. The presumption of openness “may be

        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, 330 S.W.3d 301, 304 (Tex. Crim. App. 2010); Andrade v. State,
246 S.W.3d 217, 224 n.5 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Accordingly, we do not
separately address Woods’s state constitutional claim.

                                                    3
overcome only by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest.” Press-Enter. Co. v.
Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984); Lilly, 365 S.W.3d at
328 n.6 (“This presumption that criminal trials should be public, absent an overriding
interest, is a reflection of this nation’s fundamental distrust of secret trials and the belief
that ‘justice must satisfy the appearance of justice.’”) (quoting In re Oliver, 333 U.S. at
268). The exceptions will be rare, and the balance of interests must be struck with special
care. Presley, 558 U.S. 209, 130 S. Ct. at 724 (citing Waller, 467 U.S. at 45). The
Supreme Court identified four prongs that a court must satisfy to justify closure: (1)
There must be an overriding interest that is likely to be prejudiced absent closure, (2)
closure must be no broader than necessary to protect that interest, (3) the trial court must
consider reasonable alternatives to closing the proceeding, and (4) the court must make
findings adequate to support the closure. Waller, 467 U.S. at 48 (citing Press-Enter. Co.,
464 U.S. at 510).

       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, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). In this case, however, most of the
facts are undisputed, and the primary issue involves the legal significance of those facts
to Woods’s claim.




                                              4
                                                      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, 70 S.W.3d 873, 887 (Tex. Crim. App.
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, 138 S.W.3d 334, 339–41
(Tex. Crim. App. 2004). In Mendez, the court noted that it has used the word “fundamental” to describe
complaints that may be raised for the first time on appeal. Id. at 341. And it has referred to the public-trial
right as “fundamental.” See, e.g., Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012).
Nevertheless, whether a public-trial claim can be raised for the first time on appeal is not clearly settled.
See Levine v. United States, 362 U.S. 610, 618 (1960) (stating that closure of the courtroom during the
grand-jury hearing that continued into a contempt hearing did not violate the defendant’s public-trial right
absent a request for the court to be opened to preserve the error for appeal); Lilly v. State, 365 S.W.3d
321, 327–28 (Tex. Crim. App. 2012) (hearing the appellant’s public-trial claim only after finding
sufficient contradictory evidence in the record to rebut any presumption that the appellant intended to
waive his claim); but see Walton v. Briley, 361 F.3d 431, 434 (7th Cir. 2004) (concluding that failure to
object at trial did not result in waiver of defendant’s claim that his right to a public trial was violated). In
this case, however, we conclude that Woods timely made his objection to the trial court, so we need not
determine whether he could have raised his claim for the first time on appeal.


                                                       5
2002); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)).

       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,
739 F.2d 531, 532 (11th Cir. 1984) (analyzing a partial closure where the court excluded
one person from the courtroom during one witness’s testimony to protect that witness
from emotional harm). It is constitutionally irrelevant whether closure was intentional or
inadvertent. Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004); Peterson v. Williams, 85
F.3d 39, 44 & n.8 (2d. Cir. 1996). Additionally, a closed courtroom does not become

                                              6
open merely because the trial court would have admitted spectators who knocked on
previously sealed doors. Peterson, 85 F.3d at 44 n.7 (“Spectators do not have the burden
of banging on closed courtroom doors during trial. . . . [T]he possible existence of some
spectators brave or arrogant enough to seek admission does not convert the courtroom
into an open one.”).

       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, 361 F.3d at 433. Further, the State incorrectly restates Deputy Clay’s
testimony: He did not testify that the court accommodated anyone who wished to remain
but rather only those who made special requests to sit in the jury box. He also testified
that spectators could enter through the side or back entrances after the venire was set, but
he admitted that no one notifies spectators of either policy. We defer to the trial court’s
factual conclusion that Wendy did not ask Deputy Clay for permission to stay in the
courtroom after he told her to leave. It is undisputed, however, that Deputy Clay told
Wendy, Ballard, and a number of other spectators to leave the courtroom and wait outside
until voir dire was over. The court’s policy to accommodate spectators who, in spite of
Deputy Clay’s instructions, sought reentry into the courtroom did not transform the
closed courtroom into an open one. See Peterson, 85 F.3d at 44 n.7. Therefore, we
conclude that the courtroom was closed, at least to some extent, during voir dire.

                                             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

                                             7
come forward, discouraging perjury, and assuring the public that courts are following
procedures and observing standards of fairness. Waller, 467 U.S. at 46; Lilly, 365 S.W.3d
at 328. Nevertheless, partial closures do not raise the same constitutional concerns as
total closures because an audience remains to ensure the fairness of the proceedings and
preserve the safeguards of public trials. United States v. Osborne, 68 F.3d 94, 98 (5th Cir.
1995) (citing Waller, 467 U.S at 46). Therefore, a number of circuit courts have held that
trial courts need only a substantial reason rather than an overriding interest to justify a
partial closure. See id. at 98–99; United States v. Farmer, 32 F.3d 369, 371 (8th Cir.
1994); Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); United States v. Sherlock,
962 F.2d 1349, 1357 (9th Cir. 1989); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.
1989); Douglas, 739 F.2d at 532–33. Each of those circuit courts held that the need to
protect a witness from retaliation or emotional harm justified temporarily excluding a
specific person or group from the courtroom during that witness’s testimony. See
Osborne, 69 F.3d at 99 (“With one exception, the court allowed all existing spectators to
remain in the courtroom . . . [I]n the circumstances this case presents, the defendants
were not denied their Sixth[-]Amendment right to a public trial.”).3

        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

        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, 977 F.2d at 77 (excluding
the defendant’s family during the victim’s testimony because “protection of a witness who claims to be
frightened as a result of perceived threats meets both the ‘substantial[-]reason’ and the ‘overriding[-
]interest’ standards”); Sherlock, 962 F.2d at 1357 (excluding the defendant’s family during the testimony
of a young victim of a sex crime for the purpose of protecting her from the trauma and embarrassment of
public scrutiny); Nieto, 879 F.2d at 753 (excluding members of the defendant’s family during the
testimony of a witness to protect him from retaliation by co-assailants who the police had yet to
apprehend); Douglas, 739 F.2d at 532–33 (finding that protection of the witness from unnecessary insult
to her dignity was sufficient to justify a partial closure and allow only the press and family members of
the defendant, the witness, and the decedent to remain during the witness’s testimony).

                                                   8
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 — TEX. R. APP. P. 47.2(b).




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