                                                                                         PD-1274-14
                                                                        COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                      Transmitted 1/15/2015 9:16:42 AM
January 15, 2015                    No. PD-1274-14                      Accepted 1/15/2015 9:35:49 AM
                                                                                          ABEL ACOSTA
                                                                                                  CLERK
                                            In the
                                  Court of Criminal Appeals
                                  
                                    No. 01-13-00198-CR
              In the Court of Appeals for the First District of Texas at Houston
                                  
                                        No. 1254877
                               th
                     In the 174 District Court of Harris County, Texas
                                  
                            BOBBY JOE PEYRONEL
                                          Appellant
                                             V.
                             THE STATE OF TEXAS
                                     Appellee
                                 
          STATE’S BRIEF ON DISCRETIONARY REVIEW
                                 

                                                          DEVON ANDERSON
                                                          District Attorney
                                                          Harris County, Texas

                                                          ERIC KUGLER
                                                          Assistant District Attorney
                                                          Harris County, Texas
                                                          TBC No. 796910
                                                          kugler_eric@dao.hctx.net

                                                          LISA COLLINS
                                                          Assistant District Attorney
                                                          Harris County, Texas

                                                          1201 Franklin, Suite 600
                                                          Houston, Texas 77002
                                                          Tel.: 713-755-5826
                                                          FAX: 713-755-5809

                                                          Counsel for Appellee

                         ORAL ARGUMENT NOT PERMITTED
               STATEMENT REGARDING ORAL ARGUMENT

This Court has not permitted oral argument in this case.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Lisa Collins  Assistant District Attorney at trial

Appellant or criminal defendant:

      Bobby Joe Peyronel

Counsel for Appellant:

      Frances Bourliot  Assistant Public Defender on appeal

      Richard Oliver; Alan Cohen  Counsel at trial

Trial Judge:

      Hon. Vanessa Velasquez  Presiding Judge




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                                          TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

IDENTIFICATION OF THE PARTIES .....................................................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... v

ISSUE PRESENTED ................................................................................................. 1

   The court of appeals erred in finding that the public-trial issue was preserved for
   review when the appellant did not ask the trial court to do anything and did not
   alert the trial court to the specific grounds that he would raise on appeal. ............1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 4

ARGUMENT ............................................................................................................. 4

PRAYER .................................................................................................................... 8

CERTIFICATE OF SERVICE AND COMPLIANCE............................................... 9




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                                     INDEX OF AUTHORITIES


CASES

Addy v. State,
  849 S.W.2d 425 (Tex. App.—
  Houston [1st Dist.] 1993, no writ) .........................................................................6
Blue v. State,
  41 S.W.3d 129 (Tex. Crim. App. 2000)..................................................................5

Broxton v. State,
  909 S.W.2d 912 (Tex. Crim. App. 1995) ................................................................5
Cameron v. State,
  PD-1427-13, 2014 WL 4996290 (Tex. Crim. App. Oct. 8, 2014) .........................7
Coble v. State,
  330 S.W.3d 253 (Tex. Crim. App. 2010) ................................................................7

Dixon v. State,
  2 S.W.3d 263 (Tex. Crim. App. 1998) ....................................................................5

Espada v. State,
  No. AP–75,219, 2008 WL 4809235 (Tex. Crim. App. 2008) ................................7
Fuller v. State,
  253 S.W.3d 220 (Tex. Crim. App. 2008) ................................................................5

Levine v. United States,
  362 U.S. 610 (1960) ...............................................................................................6

Martinez v. State,
 22 S.W.3d 504 (Tex. Crim. App. 2000)..................................................................5

McEntire v. State,
 265 S.W.3d 721 (Tex. App.—
 Texarkana 2008, no pet.) ........................................................................................6




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Mitchell v. State,
 No. 10–10–00307–CR, 2011 WL 5994154 (Tex. App.–
 Waco 2011, no pet.) ................................................................................................6

Peyronel v. State,
  No. 01–13–00198–CR, 2014 WL 4109589 (Tex. App.–
  Houston [1st Dist.] Aug. 21, 2014, pet. filed) ........................................................v

Rodriguez v. State,
  No. 04–04–00230–CR, 2005 WL 899963 (Tex. App.—
  San Antonio Apr. 20, 2005, pet. ref’d) ...................................................................7

Saldano v. State,
  70 S.W.3d 873 (Tex. Crim. App. 2002)..................................................................5
Waller v. Georgia,
 467 U.S. 39 (1984) .................................................................................................5

STATUTES

TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010) ...................................................1
TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010) ....................................................1

TEX. CODE CRIM. PROC. art. 57.03(d) (West 2010) ....................................................1

RULES

TEX. R. APP. P. 33.1(a) ............................................................................................5, 8




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TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                         STATEMENT OF THE CASE

      The appellant was charged with the aggravated sexual assault of a child

committed on October 27, 2009 (CR – 2). He pled “not guilty” to the charge, and

the case was tried to a jury (CR – 248). The jury found the appellant guilty and

assessed punishment at 50 years in prison (CR – 248).

      The court of appeals affirmed the conviction but issued a published opinion

reversing the judgment on punishment; it held that the trial court improperly

excluded the female members of the appellant’s family from the courtroom during

the punishment phase after one of them had asked a juror, “How does it feel to

convict an innocent man?” Peyronel v. State, No. 01–13–00198–CR, 2014 WL

4109589 (Tex. App.–Houston [1st Dist.] Aug. 21, 2014, pet. filed). This Court

granted review on whether that issue was preserved for appeal.




                                        v
                                   ISSUE PRESENTED

       The court of appeals erred in finding that the public-trial issue
            was preserved for review when the appellant did not ask the
            trial court to do anything and did not alert the trial court to
            the specific grounds that he would raise on appeal.

                                STATEMENT OF FACTS

       Jane1 was a three-year-old girl with two older brothers (RR. IV – 52). Her

mother had a master’s degree in counseling and worked as a school counselor, so

she used Marie Payronel as her daycare provider (RR. IV – 50-51, 53) (RR. VI –

80). By October 2009, Jane’s two older brothers had moved on to school, but Jane

was still attending Marie’s daycare, which was set up in a section of Marie’s home

(RR. IV – 56-57).

       Jane’s mother felt very close to Marie, but she did not feel close to Marie’s

husband, the appellant (RR. IV – 57, 60) (RR. VI – 81). The appellant would often

be done with his work by the time that Jane’s mother was picking her up from

daycare (RR. IV – 59-60) (RR. VI – 92). According to Marie, the appellant might


1
   A person “who has access to or obtains the name, address, telephone number, or other
identifying information of a victim younger than 17 years of age may not release or disclose the
identifying information to any person who is not assisting in the investigation, prosecution, or
defense of the case.” TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010). The term “victim”
means a person who was the subject of: “(A) an offense the commission of which leads to a
reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the same
criminal episode, as defined by Section 3.01, Penal Code, as an offense described by Paragraph
(A).” TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010). The release or disclosure of such
information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC. art. 57.03(d) (West
2010). Therefore, the pseudonym “Jane” will be used for the victim in this case.
sometimes play with the kids, but he “almost never” took them to the bathroom

(RR. VI – 93). The appellant would, however, say “flirtatious things” to Jane’s

mother that “creeped [her] out a little bit.” (RR. IV – 60).

      On October 27, Jane’s mother picked Jane up from daycare around 3:30 p.m.

and was driving her home when Jane said, “Mommy, Bobby licked the owie on my

vagina today.” (RR. IV – 64).         Jane’s mother was shocked and asked for

clarification (RR. IV – 64). Jane repeated, “Bobby licked my vagina.” (RR. IV –

64). The appellant was the only Bobby that they knew (RR. IV – 64-65). Jane

stated that the assault occurred on the bed and that the appellant had pulled down

her pants (RR. IV – 65-66). When they arrived home, Jane’s parents discussed the

situation and decided to call Marie (RR. IV – 67-68) (RR. VI – 90-91). Marie had

apparently been at the doctor that day, which allowed the appellant an opportunity

to assault Jane (St. Ex. 20) (RR. VI – 89).

      After talking with Marie, Jane’s parents called the police (RR. IV – 69). The

police told them that Jane needed to go to Memorial Hospital for a sexual-assault

examination (RR. IV – 16, 71). On the way to the hospital, Jane said, “Mommy,

Bobby says my penis looks like a sucker.” (RR. IV – 76) (St. Ex. 20). On another

occasion, her mother asked her, “Did you – did you touch Bobby’s penis?” (RR. IV

– 79). Jane responded, “No. I licked it, but don’t tell the doctor.” (RR. IV – 79).




                                           2
      At the hospital, Jane told the nurse, “Bobby, he licked my gina,” and she

pointed to her vagina (RR. IV – 149) (RR. V – 102). Jane also stated that the

appellant had licked her buttocks (RR. IV – 150). The nurse took Jane’s clothing

for analysis (RR. IV – 71-74, 132, 137, 151). The analysis revealed that there was

no blood or semen on Jane’s clothing, but there was male DNA on the crotch area

of her panties (RR. IV – 217, 231, 241). Furthermore, although Jane’s father and

brothers were excluded as a source, the appellant could not be excluded as the

depositor of that male DNA (RR. IV – 185, 236) (RR. V – 67). Specifically, the

appellant’s Y-chromosome profile was present in 1 in 79 Caucasians, 1 in 154

African-Americans; and 1 in 100 Hispanics (RR. IV – 232, 237, 239).

      Jane later told a forensic interviewer about the appellant’s assaults (RR. V –

162-163) (St. Ex. 20). She stated that the appellant licked her vagina, her forehead,

her leg, and her butt during the course of the assault (RR. V – 162-163) (St. Ex.

20). She said that she did not have to lick the appellant and that she did not see

any part of his body (St. Ex. 20). She also stated that at the end of the assault, the

appellant said, “I’m going to get you down now.” (RR. V – 163) (St. Ex. 20).




                                          3
                        SUMMARY OF THE ARGUMENT

      The court of appeals held that the trial court improperly excluded the female

members of the appellant’s family from the courtroom during the punishment

phase after one of them had asked a juror, “How does it feel to convict an innocent

man?” But the public-trial issue was not preserved for appellate review because

the appellant not ask the trial court to do anything and did not alert the trial court to

the specific grounds that he would raise on appeal.


                                    ARGUMENT

      During a break in the punishment-phase testimony, a woman who was “part

of the defense in this case” approached one of the jurors and said: “How does it

feel to convict an innocent man?” (RR. IX – 7). The trial judge stated that he

would find out who it was and hold her in contempt (RR. IX – 7). The appellant’s

counsel asked about potential character witnesses sitting in the courtroom, and the

trial court decided to “invoke the Rule.” (RR. IX – 7-8). The appellant did not

object (RR. IX – 8). The prosecutor also asked that female members of the

appellant’s family be excluded from the courtroom during testimony because of

concerns of “jurors being intimidated.” (RR. IX – 8-9). The appellant responded

that it was “too broad to exclude [his] wife and daughter,” but the prosecutor

answered that the family’s behavior had “crossed the line into…intimidation of a

juror.” (RR. IX – 9). The trial court agreed and stated: “Nobody will stay in the


                                           4
courtroom while we proceed with this matter. Instruct your prospective witnesses

to wait outside until such time as they can come in.” (RR. IX – 9). The appellant

never specifically objected to the closing of the courtroom.

      To preserve an error for appellate review, a party must present a timely

objection to the trial court, state the specific grounds for the objection, and obtain a

ruling. TEX. R. APP. P. 33.1(a); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim.

App. 2000). The purpose of requiring an objection is to give the trial court or the

opposing party the opportunity to correct the error or remove the basis for the

objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Even

constitutional guarantees can be waived by failure to object at trial. See Fuller v.

State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Saldano v. State, 70 S.W.3d

873, 887 (Tex. Crim. App. 2002). Finally, arguments on appeal must comport with

the objection at trial or the error is waived. Dixon v. State, 2 S.W.3d 263, 273 (Tex.

Crim. App. 1998); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995);

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

      A public trial enables the public to see that the accused is dealt with fairly

and not unjustly condemned, and the presence of spectators ensures that the

accused’s triers are aware of their responsibility and its importance. Waller v.

Georgia, 467 U.S. 39, 46 (1984). Id. A public trial also ensures that the judge and




                                           5
prosecutor carry out their duties responsibly, and it encourages witnesses to come

forward and discourages perjury. Id.

      The right to a public trial, however, is not absolute. Addy v. State, 849

S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1993, no writ). A defendant’s

right to a public trial is not one of the few “systemic requirements” that a trial court

must follow even if the parties wish otherwise, nor is it a “waiveable” right which

must be implemented unless expressly waived. Mitchell v. State, No. 10–10–

00307–CR, 2011 WL 5994154 at *7 (Tex. App.–Waco 2011, no pet.) (not

designated for publication) (citing Mendez v. State, 138 S.W.3d 334, 340 (Tex.

Crim. App. 2004)).

      In the present case, the appellant never objected to the general exclusion of

people from the courtroom during the punishment phase. Therefore, the appellant

waived his right to present this complaint on appeal. Compare Levine v. United

States, 362 U.S. 610, 619–20 (1960) (concluding that general objection to the

nature of the proceedings was insufficient to alert the trial court to public trial

objection, thus appellant did not preserve error for review); McEntire v. State, 265

S.W.3d 721, 723 (Tex. App.—Texarkana 2008, no pet.) (“the San Antonio Court of

Appeals found that this right fell into the third category and was forfeited by a

failure to complain of exclusion of the public”); Rodriguez v. State, No. 04–04–

00230–CR, 2005 WL 899963 *1–2 (Tex. App.—San Antonio Apr. 20, 2005, pet.



                                           6
ref’d) (not designated for publication) (“we hold that by failing to object at the

time the trial judge excluded all spectators, Rodriguez forfeited his right to present

this complaint on appeal.”); Coble v. State, 330 S.W.3d 253, 277 n.56 (Tex. Crim.

App. 2010) (citing Espada v. State, No. AP–75,219, 2008 WL 4809235 at *4 (Tex.

Crim. App. 2008) (not designated for publication) (“The record reflects, however,

that appellant failed to object at trial that he was being denied the right to a public

trial. Therefore, he forfeited the right to raise this complaint on appeal.”) (not cited

as authority but merely as a curiosity pursuant to Rule 77.3)); with Cameron v.

State, PD-1427-13, 2014 WL 4996290 (Tex. Crim. App. Oct. 8, 2014) (holding that

defendant preserved public trial issue for appeal when he brought issue to attention

of trial court and then requested at least six separate times that court rule on

defendant's objection, but court declined to do so).

      On appeal, the appellant characterized his response to the State’s request as

an “objection.” (App’nt Brf. 10). But in the trial court, the appellant characterized

it simply as a response, as follows: “we’d respond to that by saying that’s too broad

to exclude Mr. Peyronel’s wife and daughter to create the impression in the jury’s

mind that he has absolutely no support whatsoever here.” (RR. IX – 9) (emphasis

added). This response did not ask the trial court to do anything. Moreover, it did

not alert the trial court to the specific grounds that would be raised on appeal,

namely, the right to a public trial. Rather, the response was couched in terms of



                                           7
visible family support for the appellant rather than the benefits of the public’s

observation of official proceedings. Therefore, it did not state the specific grounds

for the objection. TEX. R. APP. P. 33.1(a). The appellant did not preserve his public-

trial complaint for appeal, and the court of appeals erred in holding that the issue

was preserved.


                                     PRAYER

      It is respectfully requested that the opinion of the court of appeals should be

reversed in part so that the punishment is affirmed.


                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /s/ Eric Kugler
                                                 ERIC KUGLER
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 kugler_eric@dao.hctx.net
                                                 TBC No. 796910




                                          8
             CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 1,590 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      Frances Bourliot                      Lisa McMinn
      Assistant Public Defender             State Prosecuting Attorney
      Harris County, Texas                  P.O. Box 13046
      1201 Franklin, 13th Floor             Austin, Texas 78711
      Houston, Texas 77002                  Lisa.McMinn@SPA.texas.gov
      frances.bourliot@pdo.hctx.net

                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 796910

Date: January 15, 2015




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