                                                                                  PD-1427-13
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
       February 6, 2015                                         Transmitted 2/3/2015 6:35:08 PM
                                                                  Accepted 2/6/2015 8:57:48 AM
                                                                                   ABEL ACOSTA
                                    No. PD-1427-13                                         CLERK

                          IN THE COURT OF CRIMINAL APPEALS
                                   AT AUSTIN, TEXAS

                             VANESSA CAMERON, Appellant

                                          v.

                            THE STATE OF TEXAS, Appellee

                                   [ON REHEARING]

         APPELLANT’S/RESPONDENT’S BRIEF ON REHEARING AND
       RESPONSE TO STATE’S MOTION FOR REHEARING ON PETITION
                     FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

            VANESSA CAMERON, Appellant/Respondent in the above-entitled and

numbered cause, by and through her undersigned counsel, files her Brief on

Rehearing and Response to State’s Motion for Rehearing on Petition for

Discretionary Review:



                                PROCEDURAL HISTORY

            On October 8, 2014 this Court affirmed the Fourth Court of Appeal’s

opinion in Cameron v. State, ___ S.W.3d ___, 2014 WL 4996290 (Tex. App.—

San Antonio 2013). The 6-3 decision holds, in essence, that the record below

“sufficiently shows that the voir dire proceedings were closed” and that same was


	                                        1
not Constitutionally justified under the Sixth Amendment. On November 7, 2014,

the State filed a Motion for Rehearing, complaining that the Court’s majority

opinion “will be nearly impossible for trial judges to implement” and “places no

burden of proof on the defense” to demonstrate that the trial court was not open to

the public during voir dire. On January 28, 2015, this Court granted the State’s

Motion for Rehearing.        This Brief on Rehearing is filed on behalf of

Appellant/Respondent, Vanessa Cameron pursuant to Rule 70.4 of the Texas Rules

of Appellate Procedure.



                 MISCHARACTERIZATION OF THE RECORD

       The State’s Motion for Rehearing is fraught with misstatements of fact and

mischaracterizations of the record. For example, the State misrepresents that:

       “[T]he trial judge said in essence, Defense, the courtroom is open,
       bring in anyone you want and we’ll accommodate them.” (emphasis
       supplied)

State’s Motion, at p.2. Nothing could be further from the truth. In actual fact, what

the trial judge repeatedly reiterated, on some ten separate occasions is that, “I

notice for the record that every single chair that we have available…ha[s] been

removed and placed in the jury area because that is the only way we can

accommodate the number of jurors in this courtroom,” [RR Vol. 1 at 5, ln. 10], “I

don’t see any room whatsoever where anybody else would be able to sit and



	                                       2
observe.” [RR Vol. 1 at 5, ln. 19] “Certainly people have the opportunity to

observe. We just don’t know where to put them, Mr. Esparza,” [RR Vol. 1 at 6,

ln. 3], “I’m not ruling. I’m just telling you, where can we put them? Where are

we going to put them?” [RR Vol. 1 at 6, ln. 8], “I’ve never ruled that the public is

excluded. All I am saying is, where do you suggest we put them? [RR Vol. 1 at

6, ln. 22], “The courtroom’s going to be absolutely stuffed with venirepanel

members. I don’t know what we’re going to do.” [RR Vol. 1 at 8, ln. 7], “I’m

looking around this court and I’m telling you, I don’t see where we could put

them.” [RR Vol. 1 at 9, ln. 13], “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 don’t see any available chairs as I’m

looking around where anybody could sit.         I just don’t know how we could

accommodate,” [RR Vol. 1 at 9, ln. 17], “I just don’t know where to put them,”

[RR Vol. 1 at 10, ln. 16], “Tell me where to put them and we’ll put members of

her family,” [RR Vol. 1 at 10, ln. 21] (emphasis added). These repeated record

statements by the trial judge can hardly be characterized as a declaration that “the

courtroom is open, bring in anyone you want and we’ll try to accommodate them.”

See State’s Motion for Rehearing, at p. 2.

       As if repeating a falsehood will make it true, the State repeats this

misstatement in question form:



	                                       3
                 “If the defense objects that that the courtroom is closed to the public,
                 and the court responds, ‘No it isn’t. Bring in anyone you want. . . .’”

State’s Motion for Rehearing, at p. 6.

                 Here, the trial court never suggests that there is any room for the defendant’s

family or the public. In fact, the judge made it abundantly clear on the record that

there was no room in his courtroom for anyone, other than the prospective jurors,

and placing quotations around such a misrepresentation does not make it true.1

                 This Court’s majority correctly found that “the judge’s own statements show

that there was no room in the court for spectators; he all but conceded that no one

was allowed to witness the voir dire. The record sufficiently shows that the voir

dire proceedings were closed.” See Cameron v. State, 2014 WL 4996290, at * 5

(Tex. Crim. App. 2014).2




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           Interestingly, this is the same concern that “There were only as many seats available as
prospective jurors on the panel”] expressed by the trial court, and rejected by this Honorable
2
           Based upon the above, the Majority correctly found that “While it is true that the trial court
repeatedly stated that the courtroom was not closed, there was no dispute of the fact that all
spectators had been removed…Indeed, far from disputing these facts, the trial judge sought to
justify them. Were the voir dire proceedings actually open to the public, the trial judge would
not have needed to cite space limitations and safety concerns as reasons to keep the public out.
The trial court stated that he could not “accommodate” the appellant’s friends and family and
that “every single chair” was being used by the venire panel. Halfway through the State’s voir
dire examination, the trial court went on the record and described the cramped conditions of the
courtroom at length. He then made findings in accordance with the Supreme Court’s Waller
opinion. These findings track the test for whether or not a closure was justified. Again, were the
voir dire proceedings actually open, there would be no need for a Waller analysis.” Cameron v.
State, 2014 WL 4996290, at * 4.

	                                                                                                            4
                     SHIFTING THE BURDEN OF PROOF

       As for the State’s complaint that “the majority opinion places no burden of

proof on the defense”, it is clear here that the trial judge’s repeated demand that

defense counsel tell him “where can we put them? Where are we going to put

them?” [RR Vol. 1 at 6, ln. 8], “where do you suggest we put them? [RR Vol. 1 at

6, ln. 22], “Tell me where to put them and we’ll put members of her family,” [RR

Vol. 1 at 10, ln. 21] (emphasis supplied), had the effect of shifting the burden to

the defense to suggest how to accommodate the public during these proceedings.

       Both this Honorable Court and the United States Supreme Court have made

clear that the burden is not on the defense to show that any member of the public

was excluded, rather, the reviewing court, “must look at the totality of evidence

and determine whether the trial court fulfilled it’s obligation to take every

reasonable measure to accommodate public attendance at criminal trials.” Lilly v.

State, 365 S.W.2d 321, 331 (Tex. Crim. App. 2012) (quoting Presley v. Georgia,

558 U.S. 209, 215 (2010) (emphasis supplied)).

       “When determining whether a defendant has proved that his trial
       was closed to the public, the focus is not on whether the defendant
       can show that someone was actually excluded. Rather, a reviewing
       court must look to the totality of the evidence and determine whether
       the trial court fulfilled its obligation ‘to take every reasonable
       measure to accommodate public attendance at criminal trials.’




	                                      5
Presley, 130 S.Ct. at 725.” Lilly v. State, 365 S.W.2d 321, 331 (Tex. Crim. App.

2012) (emphasis supplied).3

                 Moreover, “there is no burden on the defendant to proffer alternatives,” it

is the trial court that is “obligated to take every reasonable measure to

accommodate public attendance at criminal trials.” (emphasis added) Steadman v.

State, 360 S.W.2d 499, 505 (Tex. Crim. App. 2012), citing Presley v. Georgia, 558

U.S. 209, 215 (2010). 4



                                                     NO OBJECTION MAY BE NECESSARY

                 The State argues that trial counsel failed to obtain a ruling on his objection

to the fact that the public was unable to attend jury selection. However, the United

States Supreme Court suggested in Presley that the defendant may not even need to

object to exclusion of the public from jury selection in a criminal prosecution, in

order to preserve the issue for review. See: Presley v. Georgia, 558 U.S. 209, 214

(2010).

                 “The conclusion that trial courts are required to consider alternatives
                 to closure even when they are not offered by the parties is clear not
                 only from this Court’s precedents but also from the premise that ‘[t]he
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
           The U.S. Supreme Court in Presley reversed the Georgia Supreme Court’s decision that a
defendant “was obligated to present the court with any alternatives that he wished the court to
consider.” 558 U.S., at p. 211.
4
           As the Majority noted, the trial court failed to consider or implement reasonable alternatives
such as “move to a bigger courtroom”, “split the panel in half,” identify a specific danger likely
to occur, or ask Appellant’s police officer mother “to relinquish her firearm.” Cameron v. State,
2014 WL 4996290, at *5.

	                                                                                                            6
                 process of juror selection is itself a matter of importance, not simply
                 to the adversaries but to the criminal justice system…The public has
                 a right to be present whether or not any party has asserted the right.
                 In Press-Enterprise I, for instance, neither the defendant nor the
                 prosecution requested an open courtroom during juror voir dire
                 proceedings. In fact, both specifically argued in favor of keeping the
                 transcript of the proceedings confidential.” (emphasis supplied)

Presley v. Georgia, 558 U.S. 209, 214 (2010).5 In short, it is the trial court, not the

defendant, who has the affirmative obligation to take every reasonable measure to

accommodate public attendance at criminal trials, including jury selection.

                 In any event, here defense counsel repeatedly objected and took every

reasonable measure to preserve that objection. From the outset, Defense Counsel

made clear his objection:

                 “I notice prior to the Court calling the case for trial, the bailiff ushered
                 out…the general public, to include family and friends of my client. I
                 would ask that family and friends be allowed to be present here in the
                 courtroom and…if they’re excluded, I would just put for the record
                 an objection to the 6th Amendment of the U.S. Constitution and
                 Article 1, Section 10 of the Texas Constitution since she does have a
                 right to the public trial.” (emphasis supplied) RR Vol. 1 at pp. 4, l. 21
                 – 5, l. 6.

                 When the Trial Court stated “I’m not ruling. I’m just telling you, where can

we put them?” defense counsel continued to “request a ruling from the Court,”

reiterating that he was objecting “that the public has been excluded” from the voir

dire proceedings. [RR Vol. 1 at 6, ln. 17-20]. Thereafter, counsel repeatedly
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
5
           See also: Johnson v. U.S., 520 U.S. 461, 468-9 (1997), holding the denial of a public trial is
“structural error.”

	                                                                                                            7
requested a ruling on that objection, [See RR Vol. 1 at 6, ln. 6-7 (asking “is the

Court overruling my objection?”); RR Vol. 1 at 6, ln. 14-15 (repeating: “I still

request a ruling from the Court.”) (emphasis supplied); RR Vol. 1 at 7, ln. 12-13;

RR Vol. 1 at 8, ln. 10 -11; and again at RR Vol. 1 at 10, ln. 9-10].

                 The Trial Court acknowledged same, even repeating Defense Counsel’s

objection, almost verbatim:

                 “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
                 what it is that you’re objecting to.
                 MR. ESPARZA: The absence of the public from jury selection.”

[RR Vol. 1 at 8, ln. 12-18] (emphasis added).

                 After recognizing that Defense Counsel was attempting to make a record of

his objection “that the bailiff excluded all the public from this courtroom for jury

selection,” [RR Vol. 1 at 9, ln. 1], and seeking a ruling on his “constitutional

objection,” [RR Vol. 1 at 10, ln. 1-3],6 the trial court reiterated that:

                 “TRIAL COURT:…I don’t see any available chairs as I’m looking
                 around the courtroom where anybody could sit. I just don’t know
                 how we could accommodate….I just don’t know where to put
                 them…Tell me where to put them and we’ll put members of her
                 family.”

[RR Vol. 1 at 9, ln. 23 – 10, ln. 22].

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6
           Defense Counsel had previously recognized “But there’s no ruling from the Court on my
objection.” [RR Vol. 1 at 8, ln. 10].

	                                                                                                            8
       The purpose of a timely objection is to inform the trial judge and opposing

counsel of the basis of one’s complaint in order to afford the trial judge an

opportunity to rule on same and correct the complained of defect. See Maynard v.

State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985); Saldano v. State, 70 S.W. 3d

873, 887 (Tex. Crim. App. 2002); Zillender v. State, 557 S.W.2d 515, 517 (Tex.

Crim. App. 1977); See also TEX. R. APP. PROC. Rule 33.1(a)(1)(A).

       The trial court understood what Defense Counsel was objecting to, and

asked Defense Counsel to solve that problem for him. [RR Vol. 1 at 6, ln. 21-24].

As this Court’s majority correctly recognized:

       “As we view it, the record shows very clearly that the appellant’s trial
       counsel brought the issue of the closed courtroom to the attention of
       the trial court . . . Counsel then requested (at least six separate times)
       that the court rule on his objection, but the court declined to rule.
       Texas Rule of Appellate Procedure 33.1 clearly states that, in order to
       preserve error, the record must show that the trial court either ‘ruled
       on the request, objection, or motion either expressly or implicitly or
       refused to rule on the request, objection, or motion, and the
       complaining party objected to the refusal.’ This happened below.”

Cameron, 2014 WL 4996290, at * 4 (emphasis in original).

       Whether we describe the trial court’s response to defense counsel’s repeated

objections and some six separate requests for a ruling, as an implicit ruling or a

refusal to rule, it is clear from this record that the trial court understood perfectly

what defense counsel was objecting to and counsel did everything that could be

expected to preserve same. Undersigned respectfully suggests that the State’s



	                                         9
myopic focus on counsel’s statements such as “thank you, Judge” confuses

respectful, polite deference to the bench as procedural default or waiver. This

Honorable Court should not tolerate such intolerance.

                 Moreover, contrary to the State’s misrepresentations, the trial court did not

say that the courtroom was “open,” nor did the trial court state that the courtroom

was “not closed.” As set out above, the trial judge only reiterates repeatedly that

he was not ordering the closure of the courtroom.7 Whether the judge here

ordered a closure, there can be little doubt that, regardless of any standard of proof,

the public was not able to observe a significant portion of the voir dire proceedings

in this cause.

                                                                                                  PRAYER

                 Accordingly, this Honorable Court should affirm the Fourth Court of

Appeals, dismiss the rehearing as improvidently granted, or, in the alternative,

grant re-argument and full briefing for the benefit of those who were not members

of this Honorable Court at the original submission of this appeal.

                                                                                                       Respectfully submitted


                                                                                                       Gerald H. Goldstein
                                                                                                       State Bar No. 08101000
                                                                                                       Donald H. Flanary, III
                                                                                                       State Bar No. 24045877
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
7
           “It is constitutionally irrelevant whether closure was intentional or inadvertent.” Woods v. State,
383 S.W.3d 775, 781 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

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                                      Goldstein, Goldstein, & Hilley
                                      29th Floor Tower Life Building
                                      San Antonio, Texas 78205
                                      210-226-1463
                                      210-226-8367 facsimile

                                      John T. Hunter
                                      State Bar No. 24077532
                                      310 S. St. Mary’s St.
                                      Suite 1840 – Tower Life Bldg.
                                      San Antonio, Texas 78205
                                      210-399-8669
                                      210-568-4927 facsimile


                                      By:/s/ Gerald H. Goldstein
                                        GERALD H. GOLDSTEIN
                                        Attorney for Vanessa Cameron




                         CERTIFICATE OF SERVICE

       This is to certify that on February 3, 2015, a true and correct copy of the

above and foregoing document was served on Jay Brandon, Assistant District

Attorney at the Bexar County District Attorney’s Office, by electronic mail to

jay.brandon@bexar.org.

                                      /s/ Gerald H. Goldstein
                                      Gerald H. Goldstein




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