                                                                                 ACCEPTED
                                                                             06-15-00084-CR
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                       9/10/2015 12:26:22 PM
                                                                            DEBBIE AUTREY
                                                                                      CLERK

                     No. 06-15-00084-CR
                     No. 06-15-00085-CR
                                                            FILED IN
                                                     6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                                                     9/11/2015 4:30:00 PM
                           IN THE                        DEBBIE AUTREY
                                                             Clerk
                    COURT OF APPEALS

                      FOR THE SIXTH

              JUDICIAL DISTRICT OF TEXAS

                        TEXARKANA




                     MIKE ALVIN RUIZ,

                           Appellant

                              V.

                  THE STATE OF TEXAS,

                           Appellee




    Appealed in Cause Nos. 1524438, 1524439, and 1524608

      8th Judicial District Court of Hopkins County, Texas


                   BRIEF FOR APPELLEE
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                   IDENTITY OF PARTIES AND COUNSEL

Trial Judge: The Honorable Eddie Northcutt, 8th Judicial District Court of

Hopkins County, 118 Church St., Sulphur Springs, Texas 75804.

Appellant: Mike Alvin Ruiz, ID#25116, 298 Rosemont, Sulphur Springs, TX,

75482.

Counsel for Appellant at Trial: Appellant was represented at the Trial Court by

Roland Ferguson, 1804 Woodbridge Dr., Sulphur Springs, Texas 75482.

Counsel for Appellant on Appeal: Appellant is represented on appeal by J.

Edward Niehaus, 207 W. Hickory St. Suite 309, Denton, Texas 76201.

Counsel for the State of Texas at Trial: The State of Texas was represented by

Nicholas Harrison, Assistant District Attorney of the 8th Judicial District.

Counsel for the State of Texas on Appeal: The State is represented on appeal by

Nicholas Harrison, Assistant District Attorney of the 8th Judicial District.



                                  By:/s/ Nicholas C. Harrison
                                        Nicholas C. Harrison
                                        Assistant District Attorney
                                        8th Judicial District
                                        State Bar No 24062768

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                          TABLE OF CONTENTS

TABLE OF CONTENTS                                                         3

TABLE OF AUTHORITIES                                                      4

SUMMARY OF THE ARGUMENT                                                   5

ARGUMENT AND AUTHORITIES                                                  5

I.   The Trial Court did not err by temporarily removing a defense witness 5

II. Appellant failed to preserve error                                    8

PRAYER FOR RELIEF                                                         9

CERTIFICATE OF SERVICE                                                   10




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                                       TABLE OF AUTHORITIES
Cases
Addy v. State, 849 S.W.2d 425 (Tex. App. Houston – 1993) ...................................6
Andrade v. State, 246 S.W.3d 217 (Tex. App. Houston – 2008) ..............................7
Hernandez v. State, 914 S.W.2d 218 (Tex. App. El Paso – 1996) ............................6
Peyronel v. State, 2015 WL 3879824 .....................................................................8,9
U.S. ex. Rel. Orlando v. Fay, 350 F.2d 967 ...............................................................7
Rules
TRAP 33.1; ................................................................................................................9




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                          SUMMARY OF THE ARGUMENT

The Trial Court did not err by temporarily removing a defense witness from the

courtroom who was engaging in disruptive conduct. Appellant failed to preserve

error.

                          ARGUMENT AND AUTHORITIES

Appellant presents a sole issue for review: Did the Trial Court commit reversible

error in temporarily removing a defense witness from the courtroom during part of

Appellant’s testimony?

         I.    The Trial Court did not err by temporarily removing a defense

               witness from the courtroom who was engaging in disruptive

               conduct.

         During sentencing, the Trial Court directed that Appellant’s mother be

removed from the courtroom after the following exchange:

         COURT: Let me see the attorneys.

         COURT: Ms. Ruiz, I’m going to ask you to remain outside the courtroom

         while your son is testifying. You’re trying to testify for him and with him.

         MS. RUIZ: No.



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      COURT: Okay. Well, I’m going to let you sit outside. I’ve kind of put up

      with that when the officers were on the stand as you kind of tried to agree or

      disagree – mostly disagree, as if you were there. I’ve not heard any

      testimony to show that you were there that night. Now your son is testifying,

      and you’re either trying to kind of help him or whatever, it appears to me. So

      just to take that out of the picture – okay – I’m going to have you remain

      outside the courtroom. There’s some benches outside. Sit outside, and we’ll

      call you when we’re ready. Okay?

      MS. RUIZ: Okay.

      COURT: Thank you. (Reporter’s Record v4 pgs. 68-69).

      Ms. Ruiz was subsequently allowed back into the courtroom to testify

(Reporter’s Record v4 pg. 85).

To quote Hernandez v. State, 914 S.W.2d 218 (Tex. App. El Paso – 1996),

      “Barring some members of the public from a courtroom, however, does not

      necessarily mean that the accused has been denied a public trial, as that

      determination is based on the particular circumstances of the case. Neither

      the right of the accused nor of the citizenry to a public trial is absolute, and

      reasonable limitations on public attendance may be imposed where they are


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      necessary to protect a state interest that outweighs the defendant’s right to

      public scrutiny.”

      In Andrade v. State, 246 S.W.3d 217 (Tex. App. Houston – 2008), the Trial

Court ejected one of the defendant’s attorneys when he argued with the Court in

violation of a standing procedural order. The Court of Appeals stated that a Trial

Court’s authority to keep order in the courtroom is “a ‘substantial reason’

justifying … partial closure…” In fact, even a criminal defendant himself may be

removed from the courtroom for the same reason.

      Andrade cited U.S. ex. Rel. Orlando v. Fay, 350 F.2d 967, which held that

the guarantee of a public trial means only that the public must be freely admitted so

long as those persons and groups who make up the public remain silent and behave

in an orderly fashion so that the trial may continue.

      Addy v. State, 849 S.W.2d 425 (Tex. App. Houston – 1993), provides an

example of a partial closure that constituted reversible error. The contrast between

the case at bar and Addy is compelling. In Addy, six of the defendant’s friends

were excluded (1) during the findings portion of trial, (2) over defense objection,

(3) none of whom were witnesses for either party, (4) without engaging in

disruptive behavior, (5) the jury saw the spectators being removed from the



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courtroom, (6) and the Trial Court gave no compelling reason on the record for

removing them.

      In our case, however, (1) the removal occurred during the sentencing portion

of the trial, (2) without defense objection, (3) the removed person was in fact a

defense witness who could have been excluded under the Rule at the request of

either party, (4) the removed person did engage in disruptive behavior, (5) there

was no jury present, and (6) the Trial Court articulated on the record his reasons

for temporarily removing her.

      Although the Court in Addy found that the removal of the defendant’s

friends constituted error, the opinion states, “The barring of only some members of

the public from the courtroom does not necessarily mean that an accused has been

denied a public trial. That determination turns on the particular circumstances of

the case.” Id. It is clear that under the facts of our case, even the Addy Court would

reach a different conclusion.

      II.    Appellant failed to preserve error.

      Peyronel v. State, 2015 WL 3879824, is a recent case from the Texas Court

of Criminal Appeals. Peyronel discusses the Marin analysis and which rights are

mandatory, which rights are subject to waiver, and which rights are subject to

forfeiture. Peyronel stated, “We agree with the majority of courts and hold that a
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complaint that a Defendant’s right to a public trial was violated is subject to

forfeiture.” In other words, if a Defendant does not expressly assert this right at

trial, it is forfeited.

       Under Texas Rule of Appellate Procedure 33.1, the Defendant has the

burden to state the grounds for the ruling sought from the Trial Court with

sufficient specificity to make the Trial Court aware of the complaint, unless the

specific grounds are apparent from the context. TRAP 33.1.

       In Peyronel, the Defendant actually objected at the time persons were

removed from the courtroom. However, the Court held that the objection was not

specific enough. Id.

       In the case at bar, the record is devoid of any objection made at trial by

Appellant. Therefore, he failed to preserve any error and may not complain of it for

the first time on appeal.

                              PRAYER FOR RELIEF

The State requests that this Court AFFIRM Appellant’s conviction and sentence.




                                     By:/s/ Nicholas C. Harrison
                                        Nicholas C. Harrison
                                        Assistant District Attorney
9
                                      State Bar No 24062768
                                      P.O. Box 882
                                      Sulphur Springs, Texas 75483
                                      (903) 885-0641




                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to counsel for Appellant, Jason Niehaus, on this the 9th

day of September, 2015.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney



                          CERTIFICATE OF WORD COUNT

      I certify that this document contains 929 words according to the counting

tool in the program used to generate this document.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney

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