                                                                                                                       PD-1427-13
                                                                                                COURT OF CRIMINAL APPEALS
                                                                                                                 AUSTIN, TEXAS
                                                                                              Transmitted 3/19/2015 4:51:26 PM
                                                        LAW OFFICES                             Accepted 3/20/2015 8:02:52 AM
                                   GOLDSTEIN, GOLDSTElN AND                     HILLEY                            ABEL ACOSTA
                                          310 S. ST. MARY'S STREET, SUITE 2900                                            CLERK
                                             SAN ANTONIO, TEXAS 78205-3117
ELl GOLDSTEIN                                                                                                   AREA CODE 210
 <1910·1998)                                                                                              TELEPHONE 226-1463
GERALD H. GOLDSTEIN
 LICENSED IN TEXAS AND COLORADO                                                                                AREA CODE 2 I 0
VAN G. HILLEY                                                                                             FACSIMILE 226-8367
CYNTHIA HUJAR ORR
DoNALD H. FLANARY, Ill


                                                    March 19, 2015

               Texas Court of Criminal Appeals                                                              March 25, 2015
               201 W. 14th St.
               Austin, Texas 78701

                      RE:     Vanessa Cameron vs. The State of Texas, PD-1427-13, in the
                              Court of Criminal Appeals of Texas.
                              [State of Texas vs. Vanessa Cameron, Cause No. 2010-CR-
                              4286C in the 379th Judicial District Court, Bexar County, San
                              Antonio, Texas.]

               To The Honorable Judges of the Court of Criminal Appeals:


                          POST-SUBMISSION LETTER/MEMORANDUM
                      [RECORD CITATIONS, CORRECTION, AND AUTHORITY]


               The following record citations, correction and authority:

                                             SUGGESTED ALTERNATIVE

                     As to Judge Richardson's question regarding opening the Courtroom
               doors and allowing the public to observe from the hallway, Counsel would call
               the Court's attention toRR Vol. 2 at 8-9, and Findings of Fact 4, at CR 294.

                      The record reflects that the only suggestion positive by the trial to remedy
               the lack of space for any member of the public or family to view voir dire was
               the following colloquy [relevant record page 7 and 8 attached] 1:

                      THE COURT:            ... If you want to open up those doors and
                                            have them all stand in that little hallway there
                                            so they can observe the whole thing?


               1       Said colloquy immediately follows the Court's rejection ofDefense Counsel's to
               place family members behind counsel table in front of he trial court as a security risk.

                                                           - 1-
      MR. ESPARZA:       I JUST WANTED AN ALTERNATIVE, JUDGE.

      MR. ESPARZA:       If you want to open those doors and put chairs and
                         have people- have the public sit there, that's fme with
                         me.

      THE COURT:        We don't have enough chairs. Are we going to- if
                        you want, we can open up those doors in the back and
                        have them stand to where they can observe and hear
                        every single thing that's going on.

      MS. ISHY:         And, Your Honor, just for the record, I think that's
                        going to be in violation of any fire codes in this city.

      THE COURT:        I mean, we're having issues ....

      MR. ESPARZA:      But there's no ruling from the Court on my
                              objections?

      THE COURT:        Your objection is that people have been excluded
                        from the Court.

      MR. ESPARZA:      Yes, sir.

      THE COURT:        The Court has never ruled that way, so I'm not sure
                        that it is that you're objecting to.

      MR. ESPARZA:      The absence ofthe public from jury selection ...

      THE COURT:        Every single chair that is made available for anybody
                        is currently put within the jury venirepanel area to
                        accommodate every single member of the venirepanel.
                        I know that there are certain areas that we cannot
                        place members of the family. I know that simple
                        because ofthefire code issues ... RR Vol. 2 at 7-9.
                        (emphasis supplied)

As for the trial court's Findings of Fact, the Court does state: "The Court
offered to open the doors in the back of the Court and let the public observe
from the hall area." Findings of Fact at CR 294.

      Interestingly, the Court omits any mention of the State's objection that
same would violate the fire code or the Trial Court's on record recognition of
these "areas that we cannot place members of the family . . . because of fire


                                     -2-
code issues." See RR Vol. 2 at 8 & 9?

                             OFF THE RECORD SUGGESTION

      With respect to Judge Hervey's questions regarding off the record
discussions, as well as Counsel's expressed concerns regarding Rule 605's
provisions prohibiting a judge from becoming a witness, the Counsel would
note that the Court inexplicably states in his Finding of Fact that "Suggestions
were offered to the Attorney for the Defense regarding placement of observers,
both on and off the record." See CR at 294, paragraph 6.

       A careful review of the entire record reveals that the only on record
suggestion made by the court was the use of the foyer hallway objected to by
the State and recognized by the Court as violating City fire codes.

       As for any unspecified and unidentified off the record suggestions, such
would hardly qualify as the fact specific alternatives and explanations required
by the United States Supreme Court in Presley, and this Court in Steadman and
Lilly. See Presley v. Georgia, 558 U.S. 209, 215 (2010) ("The trial court erred
because it did not even identify any overriding interest likely to be prejudiced
absent the closure of voir dire. "); Waller v. Georgia, 467 U.S. 39, 44 (1984)
("The interest is to be articulated along with fmdings specific enough that a
reviewing court can determine whether the closure order was properly
entered."); Lilly v. State, 365 S.W.3d 321, 329 (Tex. Crim. App. 2012) ("The
fmdings must be on the record and specific.... " (citing Steadman v. State, 360
S.W.3d 499, 505 (Tex. Crim. App. 2012))).

       As Judge Keasler remarked during oral argument, the record will reflect
what it will reflect. Here, the record establishes that spectators were removed
from the courtroom and that the defense objected to the same repeatedly. Such
off the record "suggestions" do not meet the stringent requirements of fact
specific findings required by Presley, 588 U.S. at 215 and Lilly, 365 S.W.3d at
329.

                             STRUCTURAL ERROR

      As to Judges Keasler and Meyers' questions regarding the appropriate
standard applied to a Sixth Amendment open courtroom violation, Counsel
would call this Court's attention to Lilly v. State, where this Court noted that

2       With respect to the State's argument that the Trial Court was somehow misled into
believing defense counsel had waived his seven separate objections by statements such as
"okay" or "thank you Judge", Counsel would call the Court's attention to the Court's finding
No.2 that "[t]he defense attorney in this case was more inclined to obtain a ruling from the
Court and seemed less inclined to accept any solutions offered by the Court." See: CR 294,
Paragraph 2.

                                            -3-
"the violation of a criminal defendant's right to a public trial is structural error
that does not require a showing of harm." Lilly, 365 S.W.3d at 328 (citing
Johnson v. United States, 520 U.S. 461, 468- 69 (1997)); See also Steadman v.
State, 360 S.W.3d 499, 510- 11 & fn. 41(Tex. Crim. App. 2012) (listing many
state and federal cases fmding it to be structural error).


                                 Respectfully submitted,


                                 Is/ Gerald H. Goldstein
                                 Gerald H. Goldstein
                                 State Bar No. 08101000
                                 ggandh@aol.com
                                 Donald H. Flanary
                                 State Bar No. 24045877
                                 Goldstein, Goldstein & Hilley
                                 310 S. St. Mary's Street, 29th Floor
                                 San Antonio, Texas 78205
                                 210-226-1463
                                 210-226-8367 fax

                                 John Hunter
                                 State Bar No. 24077532
                                 310 S. St. Mary's Street, Ste. 1840
                                 San Antonio, Texas 78205
                                 210-399-8669
                                 210-568-4927 fax

                                 Attorneys for Appellant,
                                 Vanessa Cameron


                         CERTIFICATE OF SERVICE

      I hereby certify that a copy of the above foregoing Appellant's Post-
Submission Brief has been delivered to ADA Jay Brandon, at
jay.brandon@bexar.org, as a registered participant of the EfileTexas.gov, on
this the 191hday ofMarch, 2015.

                                    By: __ls/Gerald H. Goldstein._ _ _ __
                                                  Gerald H. Goldstein




                                        -4-
                                                                 7


 1 and put them right here in front of the bench, Judge.

 2 We can find places to put them.

 3                THE COURT:     Okay.   We have attorneys that

 4 are seated at both sides.     We have security issues.

 5 That is unreasonable.   Where would we put them?     Are we

 6 going to have them stand here next to the -- next to me?

 7 That -- I think that would be considered a security

 8 risk.   You want to open up those doors and have them all

 9 stand in that little hallway there so they can observe

10 the whole thing?   Maybe we could do that.     Would that

11 satisfy you?

12                MR. ESPARZA:     I just wanted an

13 alternative, Judge.

14                THE COURT:     I'm giving you alternatives.

15 Which one would satisfy you in a way that the bailiffs

16 would feel that their job in keeping the courtroom safe

17 and secure would be satisfied?

18                MR. ESPARZA:     I can't suggest that.    If

19 you want to open those doors and put chairs and have

20 people -- have the public sit there, that's fine with

21 me.

22                THE COURT:     We don't have enough chairs.

23 Are we going to -- if you want, we can open up those

24 doors in the back and have them stand to where they can

25 observe and hear every single thing that's going on.
                                                                  8


 1                  MS. ISCHY:     And, Your Honor, just for the

 2 record, I think that's going to be in violation of any

 3 fire codes in this city.

 4                  THE COURT:     And that -- I mean, we're

 5 having issues.    Counsel obviously wants her entire

 6 family here.     I mean, I don't know what else we could

 7 do.   The courtroom's going to be absolutely stuffed with

 8 venirepanel members.     I don't know what we're going to

 9 do.

10                  MR. ESPARZA:     But there's no ruling from

11 the Court on my objection?

12                  THE COURT:     Your objection is that people

13 have been excluded from the Court.

14                  MR. ESPARZA:     Yes, sir.

15                  THE COURT:     The Court has never ruled

16 that way, so I'm not sure what it is that you're

17 objecting to.

18                  MR. ESPARZA:     The absence of the public

19 from jury selection.

20                  THE COURT:     I'm not sure what -- I have

21 not in any way ruled --

22                  MR. ESPARZA:     No, sir.    No, sir.   I'm

23 saying, prior to you taking the bench and calling the

24 case for court --

25                  THE COURT:     Yes.
                                                                 9


 1                 MR. ESPARZA:     -- the bailiff excluded all

 2 of the public from this courtroom for jury selection.

 3 I'm just --

 4                 THE COURT:     Okay.   I'm -- and, again, now

 5 you're bringing it up to the Court on the record.

 6                 MR. ESPARZA:     Yes, sir.

 7                 THE COURT:     I'm telling you that the

 8 Court has never ruled that the public is excluded from

 9 jury selection.

10                 MR. ESPARZA:     Yes, sir.

11                 THE COURT:     I'm well aware of the rights

12 this individual defendant has to have an open court

13 proceeding which excludes voir dire; however, I'm

14 looking around this court and I'm telling you, I don't

15 see where we could put them.

16                 MR. ESPARZA:     Yes, sir.

17                 THE COURT:     Every single chair that is

18 made available for anybody is currently put within the

19 jury venirepanel area to accommodate every single member

20 of the venirepanel.    I know that there are certain areas

21 that we cannot place members of the family.       I know that

22 simply because of fire code issues, of police detection

23 issues.   I recognize that.     I don't see any available

24 chairs as I'm looking around the courtroom where anybody

25 could sit.    I just don't know how we could accommodate.
