                                                                                    ACCEPTED
                                                                                06-15-00084-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                            8/7/2015 1:34:56 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK

                   NO. 06-15-00084-CR
                   NO. 06-15-00085-CR
                        IN THE                             FILED IN
                                                    6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
              SIXTH COURT OF APPEALS                8/7/2015 1:34:56 PM
                                                        DEBBIE AUTREY
                        OF TEXAS                            Clerk


                TEXARKANA, TEXAS
          _______________________________

                   MIKE ALVIN RUIZ,
                          APPELLANT

                            VS.

               THE STATE OF TEXAS,
                          APPELLEE
___________________________________________________

       On Appeal from the 8th Judicial District Court
               of Hopkins County, Texas

                 Trial Court Cause Nos.
             1524438, 1524439, and 1524608
___________________________________________________

            BRIEF FOR THE APPELLANT
___________________________________________________

                J. Edward Niehaus
       BODKIN NIEHAUS & DICKSON PLLLC
            207 W. Hickory St. Suite 309
               Denton, Texas 76201
           TELEPHONE (940) 600-1295
              Jason@BNDlegal.com
            STATE BAR No. 24074812
          ATTORNEY FOR APPELLANT

                                       Oral Argument Not Requested
                     IDENTITY OF PARTIES AND COUNSEL
         1. Trial Judge: The Honorable Eddie Northcutt presided over the trial of this

case, Presiding Judge of the 8th Judicial District Court of Hopkins County, 118 Church

St., Sulphur Springs, Texas 75804.

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

75482.

         3. Counsel for Appellant:

         a. The Appellant was represented at the Trial Court by Roland Ferguson, 1804

Woodbridge Dr., Sulphur Springs, Texas 75482.

         b. The Appellant is represented on appeal by J. Edward Niehaus, 207 W. Hickory

St. Suite 309, Denton, Texas 76201.

               4. Counsel for the State of Texas:

         a. The State of Texas was represented by Will Ramsay Hopkins County District

Attorney, and Matthew Harris, Hopkins County Assistant District Attorneys at the trial

court level.

         b. The State is represented on appeal by and through Will Ramsay, Criminal

District Attorney of Hopkins County, 110 Main St., Sulphur Spring, Texas 75482.


                 STATEMENT REGARDING ORAL ARGUMENT
         Appellant does not request oral argument as the decisional process of this Court

would not be significantly aided by oral argument since the facts and legal arguments



Appellant’s Opening Brief                                                        i
are adequately presented in the brief submitted to this Court by the Appellant.




Appellant’s Opening Brief                                                         ii
                                              TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ................................................................... i
STATEMENT REGARDING ORAL ARGUMENT...................................................... i
TABLE OF CONTENTS ................................................................................................... iii
INDEX OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE........................................................................................... v
ISSUES PRESENTED ......................................................................................................... v
STATEMENT OF FACTS ................................................................................................... 1
SUMMARY OF THE ARGUMENT ................................................................................. 3
ARGUMENT ......................................................................................................................... 3
APPELLANT’S ISSUE NO. ONE ..................................................................................... 3
The Court committed reversible error when it closed the courtroom to members
of Appellants family during contested proceedings........................................................... 3
Standard of Review ................................................................................................................ 3
Fact Statement......................................................................................................................... 4
ARGUMENTS and AUTHORITIES ................................................................................. 5
1)        Appellant is Constitutionally Entitled to an Open Proceeding ....................... 5
2)        Appellant’s Right to Open Proceeding is Fundamental ................................... 7
3)        Common Law History is Consistent with the Fundamental Nature of
Open Proceedings .................................................................................................................. 8
4)        Appellant need not show harm resulting from the Court’s closure of
the proceedings. .................................................................................................................... 10
5)        Conclusion and Requested Relief...................................................................... 12




Appellant’s Opening Brief                                                                                                  iii
                                             INDEX OF AUTHORITIES
Cases
Cameron v. State, 415 S.W.3d 404 (Tex. App.—San Antonio 2013) ................................... 5
Douglas v. Wainwright, 714 F.2d 1532 (CA11 1983) ........................................................ 7, 11
Estes v. Texas, 381 U.S. 532 (1965)......................................................................................... 5
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) .............................................. 7, 8
In re Oliver, 333 U.S. 257 (1948) ......................................................................................... 5, 7
Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)............. 7
Levine v. United States, 362 U.S. 610 (1960) ......................................................................... 11
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). ...................................................... 7
People v. Jones, 47 N. Y. 2d 409, 391 N. E. 2d 1335 (1979) ................................................ 11
Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010) (per curiam) .. 5
Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629
(1984)
 .................................................................................................................................... 6, 8, 9, 10
State v. Sheppard, 182 Conn. 412, 418, 438 A. 2d 125, 128 (1980) ................................... 11
Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012).................................................. 7
United States ex rel. Bennett v. Rundle, 419 F.2d 599 (CA3 1969) .................................... 7, 11
Waller v. Ga., 467 U.S. 39, 104 S.Ct. 2210 (1984) ........................................................ passim

Rules
TEX. R. APP. PRO. 9(i) ....................................................................................................... 12
TEX. R. APP. PPR. 43.2(d). ................................................................................................ 12
TEX. R. APP. PRO. 44.2(a) ............................................................................................... 3, 5
Tex.R.Evid. 614....................................................................................................................... 4

Treatises
1 T. Cooley, Constitutional Limitations 647 (8th ed. 1927)............................................... 5
3 W. Blackstone Commentaries *364 ................................................................................... 9
M. Hale, The History of the Common Law of England 342 (6th ed. 1820) ................. 9
Smith, De Republica Anglorum, at 101 ............................................................................... 9
T. Smith, De Republica Anglorum 96 (Alston ed. 1906)................................................... 9
W. Holdsworth, History of English Law 332, 335 (7th ed. 1956).................................... 8

Constitutional Provisions
Tex. Const. Art. I, § 13 .......................................................................................................... 5
U.S. CONST. amend. VI ........................................................................................................ 5




Appellant’s Opening Brief                                                                                                         iv
                               STATEMENT OF THE CASE
       Appellant was charged by indictments with Evading Arrest by Motor Vehicle

(Cause no. 1524439) and Aggravated Assault with Deadly Weapon (Cause No. 1524438

dismissed and re-indicted with one less enhancement paragraph as Cause No. 1524608),

both of which were pending in the 8th Judicial District Court, the Honorable Eddie

Northcutt, Presiding, (RR v2 p7). On April 30, 2015, Appellant pled guilty without

sentencing recommendation to the offenses as charged in the indictment and a

sentencing hearing was conducted on May 5, 2015, (CR1 53; CR2 23; RR v3 p 16 – 17;

v4 p 4 – 112). The Court found the evidence sufficient to support the guilty plea, (RR

v3 p19 – 20). After hearing testimony, the Court set punishment on the Evading at

twenty (20) years confinement (CR1 50 – 52; RR v4 p105) and the Aggravated Assault

with Deadly Weapon at thirty (30) years confinement, (CR2 47 - 49; RR v4 p107).1

Appellant timely filed a Notice of Appeal, (CR1 56 – 57; CR2 54 – 55).


                                     ISSUES PRESENTED
       1.      Did the Court err by closing the proceedings to Appellant’s family during

sentencing hearing without conducting inquiry regarding other available methods for

ensuring the orderly conduct of the case?




       1
         CR1 refers to the Clerk’s Record in 1524439; CR2 refers to the Clerk’s Record in 1524608, RR
       refers to the Reporter’s Record.


Appellant’s Opening Brief                                                                          v
                                   NO. 06-15-00084-CR
                                   NO. 06-15-00085-CR
                                        IN THE

                             SIXTH COURT OF APPEALS

                                      OF TEXAS

                               TEXARKANA, TEXAS
                         _______________________________

                                   MIKE ALVIN RUIZ,
                                          APPELLANT

                                          VS.

                          THE STATE OF TEXAS,
                                     APPELLEE
           ___________________________________________________

                     On Appeal from the 8th Judicial District Court
                             of Hopkins County, Texas

                            Trial Court Cause Nos.
                        1524438, 1524439, and 1524608
           ___________________________________________________

                  OPENING BRIEF FOR THE APPELLANT
           ___________________________________________________
                                 STATEMENT OF FACTS
       Appellant entered an open plea of guilty to the trial court on two cases, one

alleging the offense of evading arrest with a motor vehicle and the other alleging

aggravated assault with a deadly weapon, (RR v3 p16 – 20). The Court found the plea

to be substantiated by the evidence, and after a sentencing hearing assessed punishment

at twenty (20) years confinement for the evading arrest charge and thirty (30) years


Opening Brief of the Appellant                                                  Pg.1
confinement for the aggravated assault charge, (CR1 50 – 52; CR2 47 – 49; RR v4 p105

– 108). Appellant does not contest the sufficiency of the evidence substantiating his

plea.

        Appellant is illiterate, neither able to read nor write. While incapable of reading

or writing, Appellant is not mentally incompetent, and was competent to enter his plea,

(RR v3 p5 – 20). A competency finding is consistent with other court’s findings prior

to Appellant entering previous plea agreements in the cases used to enhance Appellant’s

sentencing range, (RR v3 p5 – 20).

        The State’s evidence consisted mostly of Appellant’s prior criminal history, with

brief testimony given by the officers on scene the night the allegations occurred, (RR

v4 p11 – 32). Officer Zachary Brown, the complainant, approached Appellant’s car to

conduct a traffic stop, (RR v4 p34 – 36).

        During the traffic stop, the officer reached into Appellant’s vehicle, (RR v4 p38

– 44). While the officer was reaching into the vehicle, Appellant applied pressure to the

accelerator, causing the car to move forward with the Officer holding on to the door,

(RR v4 p46 – 48). Faced with the Hobson’s Choice between holding on or being run

over, the officer elected to hold onto the vehicle until the centrifugal force became too

great, (RR v4 p46 – 48; 57). The Officer sustained cuts and bruises when thrown from

the vehicle, (RR v4 p47).

        Officer Josh Shufeldt observed the incident, (RR v4 p55 – 58). He also observed

Appellant wreck out the vehicle and flee, (RR v4 p57 – 58).

Opening Brief of the Appellant                                                      Pg.2
       Appellant presented witnesses in mitigation of the sentence, and also elected to

testify, (RR v4 p62). He testified about his lack of education, his time in prison, his

tattoos, and the absence of quality role models in his life, (RR v4 p63 – 68). During

Appellant’s testimony, his mother was removed from the courtroom, (RR v4 p68 – 69).

       After Appellant’s testimony, his mother also testified regarding the absence of

positive role models in Appellant’s live, the absence of his father, and Appellant’s

educational challenges, (RR v4 p85 – 90).


                         SUMMARY OF THE ARGUMENT
       Appellant sole issue asserts that the Court committed reversible error by closing

the courtroom to his family during the sentencing phase of his contested open plea

hearing, and that said error is fundamental constitutional error not requiring

contemporaneous objection or showing of harm.


                                     ARGUMENT
                          APPELLANT’S ISSUE NO. ONE
     The Court committed reversible error when it closed the courtroom to
        members of Appellants family during contested proceedings.

                                 Standard of Review

       “If the appellate record in a criminal case reveals constitutional error that is

subject to a harmless error review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt that

the error did not contribute to the conviction or punishment,” TEX. R. APP. PRO.


Opening Brief of the Appellant                                                   Pg.3
44.2(a)

                                    Fact Statement

         This is an appeal from a contested open plea proceeding, (RR v2-v5). Appellant

pled guilty to Aggravated Assault with Deadly Weapon and Evading Arrest, (RR v3 p15

– 20).

         During the plea hearing and subsequent sentencing, neither side invoked “the

Rule” [Tex.R.Evid. 614: Sequestration of Witnesses], (RR v4 p9).

         During presentation of the Defense case, Appellant took the stand and testified,

(RR v4 p63). During that testimony, Appellant’s mother was removed from the

courtroom after the following exchange:

         [Court] Let me see the attorneys.
         (The following occurred at the bench.)
         [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.
         [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.
         (Bench conference concluded.)
         [Court] Mr. Ferguson, you may continue. (RR v4 p68 – 69).

         The record is silent before this point regarding whether the Court previously



Opening Brief of the Appellant                                                      Pg.4
instructed Ms. Ruiz to cease and desist her conduct or whether the Court contemplated

any alternative to removing Appellant’s mother from the courtroom. Neither party

requested her removal. The record is silent regarding the presence of any other people

being present in the courtroom at the time Appellant’s mother was removed.

       Ms. Ruiz was allowed back into the courtroom to testify, (RR v4 p85). The record

is unclear if she was allowed to remain for closing argument or sentencing.

                      ARGUMENTS and AUTHORITIES

       Appellant argues that the Court violated his right to public proceedings, as

guaranteed by Tex. Const. Art. I, § 13 and the Sixth Amendment to the United States

Constitution. Appellant asserts constitutional error. See TEX. R. APP. PRO. 44.2(a)

1) Appellant is Constitutionally Entitled to an Open Proceeding

       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, 130

S. Ct. 721, 175 L. Ed. 2d 675 (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. See also

Cameron v. State, 415 S.W.3d 404, 409 (Tex. App.—San Antonio 2013).

       "The requirement of a public trial is for the benefit of the accused; that the

public may see he is fairly dealt with and not unjustly condemned, and that the presence

of interested spectators may keep his triers keenly alive to a sense of their responsibility



Opening Brief of the Appellant                                                      Pg.5
and to the importance of their functions. ..." Waller v. Ga., 467 U.S. 39, 46, 104 S.Ct.

2210, 2215 (1984) quoting In re Oliver, 333 U.S. 257, 270, n. 25 (1948), quoting 1 T. Cooley,

Constitutional Limitations 647 (8th ed. 1927)). Accord, Estes v. Texas, 381 U.S. 532, 588

(1965) (Harlan, J., concurring)2; In re Oliver, 333 U.S., at 270.3 Appellant asserts that the

Court’s removal of his mother from the courtroom during his testimony is in violation

of his right to an open proceeding.

        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, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)(First

Amendment also guarantees public trial). 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, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984)(emphasis added). Accordingly, Appellant does not assert that there is never a

circumstance in which his mother could be removed from court. Appellant asserts that

the specific circumstances here do not rise to the level of compelling concern that

would necessitate his mother’s removal from the courtroom.

        In Waller, the Supreme Court provided standards for courts to apply before



2
  "Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that
judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an
open court than in secret proceedings."
3
 "The knowledge that every criminal trial is subject to contemporaneous review in the forum of
public opinion is an effective restraint on possible abuse of judicial power."


Opening Brief of the Appellant                                                                  Pg.6
excluding the public from any stage of a criminal trial, stating, "the 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 (emphasis added).

         Here, the Court closed the proceedings to Appellant’s mother, the only source

of comfort and security in Appellant’s life. The Court did so without request from a

party, and without adequate investigation regarding other available options other than

removing her from the courtroom.

2) Appellant’s Right to Open Proceeding is Fundamental

         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, 117

S. Ct. 1544, 137 L. Ed. 2d 718 (1997); Steadman v. State, 360 S.W.3d 499, 510-11 (Tex.

Crim. App. 2012). Counsel’s failure to contemporaneously object is irrelevant where the

error is structural in nature. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993).

         The right to open proceedings is considered to be fundamental because of the

inherit value in open proceedings in ensuring transparency, reducing corruption, and

increasing the public’s faith in the system. “In addition to ensuring that judge and

prosecutor carry out their duties responsibly, a public trial encourages witnesses to



Opening Brief of the Appellant                                                       Pg.7
come forward and discourages perjury.” Waller v. Ga., 467 U.S. 39, 46, 104 S.Ct. 2210,

2215 (1984)(emphasis added). See also In re Oliver, supra, at 270, n. 24; Douglas v.

Wainwright, 714 F.2d 1532, 1541 (CA11 1983), cert. pending, Nos. 83-817, 83-995; United

States ex rel. Bennett v. Rundle, 419 F.2d 599, 606 (CA3 1969). Closed proceedings,

although not absolutely precluded, must be rare and only for cause shown that

outweighs the value of openness. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596

(1982), we stated:

       [The] circumstances under which the press and public can be barred from
       a criminal trial are limited; the State's justification in denying access must
       be a weighty one. Where . . . the State attempts to deny the right of access
       in order to inhibit the disclosure of sensitive information, it must be
       shown that the denial is necessitated by a compelling governmental
       interest, and is narrowly tailored to serve that interest. Id., at 606-607; Press-
       Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 509-10, 104 S.Ct. 819, 823-
       24 (1984).

       The defendant's Sixth Amendment right to a public trial applies beyond solely a

trial on the merits. See Waller v. Ga., 467 U.S. 39, 43, 104 S.Ct. 2210, 2214 (1984).

Included in Appellant’s right to a public trial is Appellant’s right to a public sentencing

hearing.


3) Common Law History is Consistent with the Fundamental Nature of Open
   Proceedings

       W. Holdsworth’s writings, including History of English Law, shed light on

Appellant’s position that he is entitled to an open punishment proceeding.

       The roots of open trials reach back to the days before the Norman
       Conquest when cases in England were brought before "moots," a town

Opening Brief of the Appellant                                                          Pg.8
       meeting kind of body such as the local court of the hundred or the county
       court. Attendance was virtually compulsory on the part of the freemen
       of the community, who represented the "patria," or the "country," in
       rendering judgment. The public aspect thus was "almost a necessary
       incident of jury trials, since the presence of a jury . . . already insured the
       presence of a large part of the public." As the jury system evolved in the
       years after the Norman Conquest, and the jury came to be but a small
       segment representing the community, the obligation of all freemen to
       attend criminal trials was relaxed; however, the public character of the
       proceedings, including jury selection, remained unchanged. Later, during
       the 14th and 15th centuries, the jury became an impartial trier of facts,
       owing in large part to a development in that period, allowing challenges.
       Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 505-06, 104 S.Ct. 819,
       821-23 (1984) citing 1 W. Holdsworth, History of English Law 332, 335
       (7th ed. 1956)(internal citations omitted).

       Since the Norman Conquest, the accused has generally enjoyed the right to

challenge jurors in open court at the outset of the trial. This preference for open courts

was then embodied in both the Texas and United States constitutions. Although there

appear to be few contemporary accounts of the process of jury selection of that

day, one early record written in 1565 places the trial "[in] the towne house, or in some

open or common place." Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 506-07,

104 S.Ct. 819, 821-23 (1984) quoting T. Smith, De Republica Anglorum 96 (Alston ed.

1906). Smith explained that "there is nothing put in writing but the enditement":

       "All the rest is doone openlie in the presence of the Judges, the Justices,
       the enquest, the prisoner, and so many as will or can come so neare as to heare it,
       and all depositions and witnesses given aloude, that all men may heare from
       the mouth of the depositors and witnesses what is saide." Smith, De
       Republica Anglorum, at 101 (emphasis in Press-Enter).

       The presence of bystanders from the public served another purpose according

to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing

Opening Brief of the Appellant                                                           Pg.9
at the trial, "either party may pray a tales." See Press-Enter. Co. v. Superior Court of Cal., 464

U.S. 501 (1984) citing 3 W. Blackstone Commentaries *364; see also M. Hale, The History

of the Common Law of England 342 (6th ed. 1820). A "tales" was the balance, or

number, of people necessary to supply the deficiency.

       The presumptive openness of the jury selection process in England carried over

into proceedings in colonial America. See Press-Enter. Co. v. Superior Court of Cal., 464 U.S.

501, 507-08, 104 S.Ct. 819, 821-23 (1984). For example, several accounts noted the need

for talesmen at the trials of Thomas Preston and William Wemms, two of the British

soldiers who were charged with murder after the so-called Boston Massacre in 1770.

Public jury selection thus was the common practice in America when the Constitution

was adopted. See Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 507-08, 104 S.Ct.

819, 821-23 (1984).

       By excluding Appellant’s mother from the courtroom during contested portion

of the hearing, the Court departed from centuries of tradition. Appellant challenges

this action by the Court. Appellant readily admits that he cannot show specific prejudice

aside from the constitutional violation. Appellant is entitled to public proceedings, and

at least in part did not receive them, (RR v4 p68 – 69; 85).


4) Appellant need not show harm resulting from the Court’s closure of the
   proceedings.

       In Waller, the Supreme Court provided standards for courts to apply before

excluding the public from any stage of a criminal trial, stating, "the party seeking to

Opening Brief of the Appellant                                                            Pg.10
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 (emphasis added).

       This Court is presented the unique circumstance where the Court appears to

have closed proceedings sua sponte (there is no record of a request form either party to

remove Ms. Ruiz). In that circumstance, the Court must still contemplate alternatives

to closing the proceeding. See generally Waller v. Ga., 467 U.S. 39. The failure to do so

violates Appellant’s right to open proceedings, and is reversible error without a showing

of harm.

       The United States Supreme Court has recognized the impossibility of showing

harm resulting directly from the court closing a proceeding. “[T]he defendant should

not be required to prove specific prejudice in order to obtain relief for a violation of

the public-trial guarantee.” Waller v. Ga., 467 U.S. 39, 49, 104 S.Ct. 2210, 2217 (1984)

See, e.g., Douglas v. Wainwright, 714 F.2d 1532, 1542 (CA11 1983) (citing cases). See also

Levine v. United States, 362 U.S. 610, 627, n. (1960) (BRENNAN, J., dissenting) ("[The]

settled rule of the federal courts [is] that a showing of prejudice is not necessary for

reversal of a conviction not had in public proceedings").

       The general view appears to be that of the Court of Appeals for the Third

Circuit. It noted in an en banc opinion that a requirement that prejudice be shown "would

in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be

Opening Brief of the Appellant                                                     Pg.11
difficult to envisage a case in which he would have evidence available of specific injury."

Waller v. Ga., 467 U.S. 39, 49, 104 S.Ct. 2210, 2217 (1984) citing United States ex rel.

Bennett v. Rundle, 419 F.2d 599, 608 (1969). While the benefits of a public trial are

frequently intangible, difficult to prove, or a matter of chance, the Framers plainly

thought them nonetheless real. See also State v.Sheppard, 182 Conn. 412, 418, 438 A. 2d

125, 128 (1980) ("Because demonstration of prejudice in this kind of case is a practical

impossibility, prejudice must necessarily be implied"); People v. Jones, 47 N. Y. 2d 409,

416, 391 N. E. 2d 1335, 1340 (1979) ("The harmless error rule is no way to gauge the

great, though intangible, societal loss that flows" from closing courthouse doors).


5) Conclusion and Requested Relief

       The Court erred by closing the proceedings to Appellant’s mother, Ms. Ruiz,

without undertaking analysis of any other available options. The Court should have

admonished Ms. Ruiz regarding her conduct before closing the proceedings to her.

There is no record of the Court admonishing Ms. Ruiz regarding her conduct. By failing

to explore other available options, the Court failed in its duty to ensure compliance with

Appellant’s constitutional right to open proceedings.

       Appellant requests this Honorable Court to reverse his case and remand for new

sentencing proceedings, Tex. R. App. Pro. 43.2(d).


                                        PRAYER
       Appellant prays that he be granted the relief requested under each respective


Opening Brief of the Appellant                                                     Pg.12
issue.

                                               Respectfully submitted,


                                                      /s/J. Edward Niehaus
                                                      J. Edward Niehaus



                        CERTIFICATE OF COMPLIANCE
         I hereby certify that the foregoing brief is in all ways compliant with

Tex.R.App.Pro. 9(i) with a total calculated word count of 4,144.


                                                      /s/J. Edward Niehaus
                                                      J. Edward Niehaus


                            CERTIFICATE OF SERVICE
         I hereby certify that a true and correct electronic copy of the foregoing

Appellant’s Brief was electronically filed in accordance with the Texas Supreme Court

e-filing mandate and was electronically served on all parties on Friday, August 07, 2015

and further certify that a hard copy has been mailed to Appellant at Appellant’s last

known address within the TDCJ.


                                                      /s/J. Edward Niehaus
                                                      J. Edward Niehaus




Opening Brief of the Appellant                                                   Pg.13
