                                                                                   PD-1427-13
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 3/11/2015 7:25:24 PM
March 13, 2015
                                                                  Accepted 3/12/2015 9:13:01 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 RESPONSE TO STATE’S REPLY
                          BRIEF



 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 Response to

 State’s Reply Brief:

                           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

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

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



                                        1
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.

                                  INTRODUCTION

       By this Brief Appellant seeks to address two basic issues central to, and
dispositive of this rehearing. Namely: (1) mischaracterization of the facts, and (2)
misinterpretation of the law.


1.     THE FACTS.         The State in their motion for and brief on Rehearing
mischaracterizes the facts: Contrary to the State’s Motion and Brief, the trial court
below did not respond to defense counsel’s objection that the public had been
excluded from jury selection by advising defense counsel to “bring in anyone you
want and we’ll accommodate them.” In fact, the trial court repeatedly responded,
at least 11 times, that there was nowhere to put anyone in the courtroom during
jury selection. What the State overlooks, and fails to mention, is that by the time
the trial court advised defense counsel that he could bring in some family members
and “we will do our best to accommodate them,” the State had already asked
individual jurors over 251 questions relating to critical legal and factual issues
raised in this case.




                                          2
       Besides, as the majority here recognized, “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 voir dire.”


2. THE LAW. The State misinterprets the law, as well: The State continues to
complain that Appellant “did not carry her burden of proving that “spectators were
not allowed into the courtroom,” citing Lilly v. State. The State misinterprets
Lilly’s test for determining whether Appellant has met her burden of demonstrating
that the jury selection proceedings were closed to the public. This Court in Lilly
makes explicitly clear that the focus is not, as the State suggests, on whether the
defendant demonstrated that someone was actually excluded, but rather whether
the trial court fulfilled its obligation to take every reasonable measure to
accommodate public attendance at those criminal proceedings. See Lilly v. State,
365 S.W.3d 321, 331 (Tex. Crim. App. 2012)
       “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.” (emphasis
       supplied).

Moreover, defense counsel’s 7 separate objections to the closed courtroom1 and his
7 separate requests for a ruling on same, 2 adequately preserved this issue for
appeal.


1
  See RR Vol. 2 at 6, ln. 16; RR Vol. 2 at 4, ln. 22 – 25; RR Vol. 2 at 6, ln. 17; RR Vol. 2 at 7, ln.
12; RR Vol. 2 at 8, ln. 12; RR Vol. 2 at 8, ln. 22; RR Vol. 2 at 10, ln. 1.
2
  See RR Vol. 2 at 6, ln. 7; RR Vol. 2 at 6, ln. 15; RR Vol. 2 at 7, ln. 12; RR Vol. 2 at 8, ln. 10;
RR Vol. 2 at 9, ln. 4; RR Vol. 2 at 10, ln. 1; and RR Vol. 2 at 10, ln. 11. Not to mention the trial
court’s 8 separate refusals to rule on those objection. RR Vol.2, at 6, ln. 8; RR Vol. 2, at 6,


                                                  3
          MISCHARACTERIZATION OF THE PROCEEDINGS BELOW

       The State suggests in its Brief that their Motion for Rehearing “did not
mischaracterize either the record or this Court’s majority opinion.” See State’s
Brief on Rehearing, at p. 6. With all due respect, the misrepresentation by the State
in both their Motion for and Brief on Rehearing lies in their continued
mischaracterization of the proceedings below, stating that in response to defense
counsel’s repeated objections that “the public has been excluded” from jury
selection,3 the trial court said “Defense, the courtroom is open, bring in anyone
you want and we'll accommodate them.” State’s Motion, at p. 2 and State’s Brief
on Rehearing, at p. 5.
       What the State completely ignores and fails to even mention is that in actual
fact, the trial court ‘s response to Defense Counsel’s objections was to repeat some
ten separate times on the record that: “I’m looking around this court and I’m
telling you, I don’t see where we could put them” (emphasis supplied) RR Vol. 2,
at 9, ln. 13;      “I don't see any available chairs as I'm looking around the

ln.12; RR Vol. 2, at 6, ln. 17; RR Vol. 6, at 6, 22; RR Vol. 2, at 8, ln. 15; RR Vol. 2, at 8, ln. 22;
RR Vol. 2, at 9, ln. 7; RR Vol. 2, at 10, ln. 19.
3
  RR Vol. 2 at 6, ln. 16. See also: RR Vol. 2 at 4, ln. 22 – 5, ln.6 [“I noticed prior to the Court
calling the case for trial, the bailiff ushered out or secluded 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 during the voir dire. They're excluded and I 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”]; RR Vol. 2, at 6, ln. 17
[“THE COURT: What is it that you're objecting to? MR ESPARZA: That the public has been
excluded…”]; RR Vol. 2, at 7, ln. 12 [“I just wanted an alternative, Judge.”]; RR Vol. 2, at 8, ln.
12 [“THE COURT: Your objection is that people have been excluded from the Court? MR.
ESPARZA: Yes, sir… The absence of the public from jury selection.”]; RR Vol. 2, at 8, ln.22
[“MR. ESPARZA: …I'm saying, prior to you taking the bench and calling the case for court…
the bailiff excluded all of the public from this courtroom for jury selection.”]; RR Vol. 2, at 10,
ln. 1 [“THE COURT:… So what exactly is your objection? MR. ESPARZA: Just to the
exclusion that's already occurred, Judge. I was just asking how we could remedy it. I bring it to
the Court's attention. If the Court does not want to rule on my objection, I understand.”].



                                                  4
courtroom where anybody could sit. I just don't know how we could
accommodate.” (emphasis supplied) RR Vol. 2, at 9, ln. 23; “I'm looking around
the courtroom, and . . . I notice for the record that every single chair that we
have available . . . for other people [than prospective jurors] have been removed
and placed in the jury area because that is the only way we can accommodate the
number of jurors in this courtroom . . . I don't see any room whatsoever where
anybody else would be able to sit and observe.” (emphasis supplied) RR Vol. 2,
at 5, ln. 8; “We just don't know where to put them, Mr. Esparza.” (emphasis
supplied) RR Vol. 2, at 6, ln. 4; “I'm just telling you, where can we put them?
Where are we going to put them?” (emphasis supplied) RR Vol. 2, at 6, ln. 8; “All
I’m saying is, where do you suggest we put them.” RR Vol. 2, at 6, ln. 23; “I
mean, I don't know what else we could do. The courtroom's going to be absolutely
stuffed with venire panel members. I don't know what we're going to do.” RR
Vol. 2, at 8, ln. 6; “THE COURT: I'm well aware of the rights this individual
defendant has to have an open court, however, I’m looking around this court and
I'm telling you, I don't see where we could put them.” (emphasis supplied) RR
Vol. 2, at 9, ln. 11; “I just don't know where to put them.” (emphasis supplied)
RR Vol. 2, at 10, ln. 16; “Tell me where to put them and we'll put members of her
family.” (emphasis supplied) RR Vol. 2, at 10, ln. 20.
      This Honorable Court’s majority recognized 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 voir dire.” Cameron v. State, Slip op.
at p. 8. Nevertheless, as if repeating their mischaracterization would make it true,
the State rephrases same in question form, stating in their Motion for Rehearing:
      “If the defense objects that the courtroom is closed to the public, and
      the court responds ‘No it isn’t. Bring in anyone you want,’ the
      record will not show that any spectators actually entered” (emphasis
      supplied) State’s Motion for Rehearing, at p. 6

                                         5
       As set out above, this was not the trial court’s response to defense counsel’s
objections. A more accurate paraphrase of the trial court’s repeated response
would be that there was no room in the courtroom for anyone to observe jury
selection, asking defense counsel to solve the court’s problem.
       It was not until after a significant portion of jury selection had transpired,
(some 83 pages of transcript), that the trial court finally tells defense counsel that
when he begins his general voir dire, he can bring in some family members and
“we will do our best to accommodate them in areas around the gallery,” RR Vol. 2,
at 83, 14. 4
       More importantly, that statement came only after the jury had been shuffled,
RR Vol. 2, at 4; after the trial court had completed it’s general voir dire, RR Vol.
2, at 17; after the trial court made findings attempting to justify the closure of a
courtroom under the Supreme Court’s Waller opinion5; and, most importantly,


4
  A suggested procedure that both courtroom bailiffs indicated this judge had utilized on previous
occasions to solve this very problem.
        “[F]or many trials we have placed chairs along walls to make seating available for
        the public and the defendant's family and friends.” See Affidavits of both Bailiffs,
        Joe Gaska, at CR 288 and Richard Villereal at CR 290.
Despite the fact that the trial court had done so successfully in the past, the judge never even
suggests that he would consider such an alternative until defense counsel had begun his general
voir dire, after the State had completed theirs. As this Court noted in Lilly v. State, 365 S.W.3d
321, 329 (Tex. Crim. App. 2012,), citing Steadman v. State, 360 S.W.3d 499, 510 (Tex. Crim.
App. 2012).
        “We recently held that it was reversible error when a trial court considered ‘a
        number of alternatives to closure’ of voir dire proceedings because the trial court
        failed to consider all reasonable alternatives.” (emphasis in the original).
5
  See Waller v. Georgia, 467 U.S. 39 (1984). As this Court’s majority pointed out, “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… 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, Slip op. at p. 8.


                                                 6
only after the State had asked individual panel members some 187 questions, on
topics ranging from what book a juror was reading, RR Vol. 2, at p. 43, what type
of law a particular juror practiced, RR Vol. 2, at 44, what movies jurors watched,
RR Vol. 2, at 46, the definition of “knowing and intentional,” RR Vol. 2, at 50-1,
legal defenses, RR Vol. 2, at 52, the state of the defendant’s mind, RR Vol. 2, at
54, types of lesser included offenses, RR Vol. 2, at 57, the definition of “intent to
cause serious bodily injury,” RR Vol. 2, at 60, the fact that the jury would be
deciding only guilt or innocence and not punishment, RR Vol. 2, at 62, definition
of bias and prejudice, RR Vol. 2, at 64, the relevance of “motive,” RR Vol. 2, at
66, types of proof, RR Vol. 2, at 67, singling out jurors who indicated that they
would be unable to “sit in judgment” on another individual, RR Vol. 2, at 74, or
were unable to judge a witnesses’ credibility, RR Vol. 2, at 74, to inquiring into a
particular juror’s religion, RR Vol. 2, at 75.
       Moreover, the trial court did not say, as the State continues to misrepresent,
that “the courtroom is open, bring in anyone you want and we’ll accommodate
them.” 6 What the trial court actually said to defense counsel, was that “we will do
our best to accommodate them in areas around the gallery,” and even then, not
until you “begin your general voir dire.” RR Vol. 2, at 83, ln. 14. And that did not
occur for another 37 pages of transcript, after one juror had been excused,7 and
after the State had asked some 64 additional questions to individual jurors on
topics ranging from the “law of parties,” RR Vol. 2, at 85, aiding and soliciting an
offense, RR Vol. 2, at 86, “duty to act,” RR Vol. 2, at 90, legal duty to protect
one’s spouse, RR Vol. 2, at 9, defense of “duress,” RR Vol. 2, at 92, self defense,
RR Vol. 2, at 93, “imminent threat of deadly force,” RR Vol. 2, at 95, “unlawful


6 See States Motion for Rehearing, at p. 2 and Brief on Rehearing, at p. 5.
7
  Juror number 25, Ms. Paz Marin was excused by the trial court, without objection at RR Vol. 2,
at 81.


                                               7
use of deadly force,” RR Vol. 2, at 96, defense of third persons, RR Vol. 2, at 98,
defense of “protection of property,” RR Vol. 2, at 98, requirement to produce a
murder weapon, RR Vol. 2, at 101, expectation of fingerprint or DNA evidence,
RR Vol. 2, at 102, live testimony versus scientific or circumstantial evidence, RR
Vol. 2, at 102-3, reliance on testimony from cooperating co-conspirators, RR Vol.
2, at 105 – 6, reliance upon law enforcement testimony, RR Vol. 2, at 109 – 10,
lack of motive, RR Vol. 2, at 112 – 15, need for a “time of death,” RR Vol. 2, at
117, jurisdiction, RR Vol. 2, at 117; right to a jury trial, RR Vol. 2, at 118,
defendant’s right to remain silent, RR Vol. 2, at 118 – 19, to the definition of
“proof beyond a reasonable doubt,” RR Vol. 2, at 120.
      All-in-all, by the time the trial court advises defense counsel that he may
finally bring family members into the courtroom to observe the jury selection
process, the State had asked over 251 questions and received responses from
prospective jurors, relating to critical legal and factual issues raised in this case.


          BURDEN OF PROVING THE COURTROOM WAS CLOSED
                [MISINTERPRETATION OF Lilly v. State]
      The State continues to complain “that the defense did not carry its burden to
show that the courtroom was closed,” noting that Appellant had not shown
“whether any spectators entered the courtroom.” State’s Brief on Rehearing, at p.
8. However, the State’s reliance on Lilly is misplaced. In fact, this Court makes
clear in Lilly that the burden is not on the defendant to demonstrate that someone
was actually excluded, but rather to demonstrate that the trial court failed to fulfill
its obligation to accommodate the public. See Lilly v. State, 365 S.W.3d, at 331.
      “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


                                            8
      the trial court fulfilled its obligation ‘to take every reasonable measure
      to accommodate public attendance at criminal trials.” (emphasis
      supplied).

      Thus it is clear that the State has misplaced the focus of this Court’s inquiry.
It is not whether the defendant has met any burden to show that anyone was
excluded from jury selection, rather the inquiry is whether the trial court has
fulfilled its obligation to take every reasonable measure to accommodate public
attendance. A contrary rule “permits the closure of voir dire in every criminal case
conducted in this courtroom whenever the trial judge decides, for whatever reason,
that he or she would prefer to fill the courtroom with potential jurors rather than
spectators.” Presley v. Georgia: 130 S.Ct. 721, 725 (2010) (emphasis in original).
      As to that inquiry, there can be little doubt, and asking defense counsel to
find room for anyone to observe these proceedings, or waiting 120 pages of
transcript and 251 questions of potential jurors, before even attempting to suggest
an alternative, does not satisfy the trial court’s obligation. On these facts it is clear
that Appellant has met her burden of demonstrating that the trial court did not
fulfill its obligation to accommodate public attendance.
      As set out more fully above, in response to defense counsel’s objections that
the public had been excluded from observing jury selection, the trial court
repeated, some ten separate times on the record that there was nowhere in the
courtroom for anyone other than prospective jurors to observe the selection
process. See RR Vol. 2, at 9, ln. 13; RR Vol. 2, at 9, ln. 23; RR Vol. 2, at 5, ln. 8;
RR Vol. 2, at 6, ln. 4; RR Vol. 2, at 6, ln. 8; RR Vol. 2, at 6, ln. 23; RR Vol. 2, at 8,
ln. 6; RR Vol. 2, at 9, ln. 11; and RR Vol. 2, at 10, ln. 16, repeatedly asking
defense counsel to “[t]ell me where to put them and we'll put members of her
family.” RR Vol. 2, at 10, ln. 20.



                                           9
      As this Honorable Court’s majority recognized, “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 voir dire.” Cameron v. State, Slip op. at p. 8.

               MISINTERPRETATION OF STEADMAN v. STATE
      The State also suggests in their brief that when the trial court below told
defense counsel (some 120 pages and over half a day into the jury selection
process), that he could bring in some family members and “we will do our best to
accommodate them,” that this “was exactly the solution this Court suggested in
Steadman v. State, allowing a defendant’s family members to sit in the courtroom
as seats opened up because of excused venire members.” See State’s Brief on
Rehearing, at p. 5, quoting a footnote in Steadman v. State, 360 S.W.3d 499, 510,
n. 37 (Tex. Crim. App. 2012). See State’s Brief on Rehearing, at p. 5, quoting a
footnote in Steadman v. State, 360 S.W.3d 499, 510, n. 37 (Tex. Crim. App. 2012).
      “Moreover, the record in this case shows that, by the time the parties
      exercised their peremptory strikes and the jury was called and seated,
      at least five veniremembers had been dismissed, either on challenge
      for cause or by agreement of the parties. This would have provided a
      sufficient number of seats in the gallery from which the appellant’s
      family members could have observed the proceedings . . .” See State’s
      Brief on Rehearing, at pp. 5 – 6.

      This misunderstanding of what the Court in Steadman was speaking to may
be the result of having omitted the remainder of that quoted sentence and
overlooked the body of the case. The critical omitted portion of that quote is
highlighted below:
      “Moreover, the record in this case shows that, by the time the parties
      exercised their peremptory strikes and the jury was called and seated,
      at least five veniremembers had been dismissed, either on challenge
      for cause or by agreement of the parties. This would have provided a
      sufficient number of seats in the gallery from which the appellant’s


                                         10
          family members could have observed the proceedings for the brief
          period it took the trial court (the record reflects it was a mere two
          minutes) to summon the jurors to the jury box and excuse the
          balance of the jury panel.” Steadman v. State, 360 S.W.3d, at 510,
          n. 37.

          As the body of the opinion makes clear, this Court was not there suggesting
that allowing the defendant’s family members to come sit in the courtroom only
when seats opened up because of excused venire members would provide any
“solution” to the courtroom closure. In fact, just the opposite.       The Court in
Steadman was confronted with a trial court that had excluded the public from jury
selection, despite the fact that the jury box remained empty 8 during the entire jury
selection process.           The Court in Steadman held that this situation was
Constitutionally untenable, recognizing that an obvious alternative would be to put
members of the public in the jury box. Footnote 37 was merely addressing the
Court’s hypothetical concern that “the family members would eventually have to
be ‘moved when the selected jury was seated.’”            The obvious solution was
“relocating some veniremembers to he jury box and placing the family members in
the gallery seats thus vacated, at least until that time arrives.” See Steadman v.
State, 360 S.W.3d, at 510.
          This Court was there speaking only to the brief period of time family
members, who had been allowed to view all of the jury selection process from the
jury box, “would have to be moved when the selected jury was seated.” Steadman
v. State, 360 S.W.3d, at 510 (“a mere two minutes” [See fn. 37]).                 More
importantly, this Court makes clear in Steadman that “for the trial court to prevent
the family members from observing jury selection—at least up until the point of
the actual seating of the jury—clearly violated the appellant’s Sixth Amendment

8   Save a D.A.’s investigator.


                                           11
right to a public trial.” (emphasis supplied) Steadman v. State, 360 S.W.3d, at
510.

                            ERROR WAS PRESERVED
       Lastly, despite defense counsel’s 10 requests for the trial court to rule on his
11 separate objections to the closure of the courtroom during jury selection, the
State claims that Appellant has not preserved that error for this appeal.
       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 public has a right to be present whether or not any party has asserted
the right”); Johnson v. United States, 520 U.S. 461, 468-69 (1997) (holding that
denial of a public trial is a structural error). Several Circuit Courts of Appeal have
endorsed this view:
       A waiver of a constitutional right must be voluntary, knowing and
       intelligent, that is, the act of waiver must be shown to have been
       done with awareness of its consequences . . . In examining a
       purported waiver of the right to public trial, we draw all reasonable
       presumptions against the loss of such a right . . . In this case, the
       government claims that because [the defendant] failed to object to
       the district court’s statement that it intended to mail the verdict[,
       thereby denying the defendant the reading of the verdict in open court
       and thus a public trial, the defendant] waived his public trial right.
       We disagree.

United States v. Canady, 126 F.3d 352, 359 (2nd Cir. 1997). Similarly, in Walton
v. Briley, the Seventh Circuit Court of Appeals concluded that a lawyers failure to
object to the court’s decision to deny the defendant a public trial by holding trial at
10:30 in the evening did not waive the error on appeal. See also Walton v. Briley,

                                          12
361 F.3d 431, 433 (7th Cir. 2004).            The Fifth Circuit Court of Appeals has
similarly held that:
       Failure to object to a private hearing, however, does not waive the
       right to be tried publicly when the futility of the objection is apparent
       by its previous rejection. We cannot construe failure to continue to
       object in the face of evident futility as the waiver of a previously
       asserted right.

Rovinsky v. McKaskle, 722 F.2d 197, 199 – 200 (5th Cir. 1984).
       Here, Cameron’s counsel objected loudly and often. Counsel’s efforts to
preserve the error likely went beyond the realm of futility in light of the trial
court’s remarks, and nothing in the record should be construed to find that
Cameron knowingly and voluntarily waived her right to complain of the public’s
exclusion from a critical stage of her trial.
       Texas Rule of Appellate Procedure 33.1(a)(2) requires an attorney to object,
and requires him to pursue an adverse ruling either explicitly or implicitly. Here,
the trial court continued to refuse to rule on defense counsel’s persistent objections,
despite repeated requests for a ruling. The State characterizes Rule 33.1 as a
“‘judge-protecting rule9,’” but it is more appropriate to think of the rule as a
double-edged sword:
       [T]he State says error was not preserved because the trial court’s
       ruling on the motion does not appear in the record. While we require
       that a defendant’s objections be specific enough to effectively
       communicate his complaint to the court, we are less stringent in our
       requirements of the trial court’s ruling on an objection. A court’s
       ruling on an objection can be impliedly rather than expressly made. . .
       A trial court’s ruling on a matter need not be expressly stated if its
       actions or other statements otherwise unquestionably indicate a ruling.



9State’s Brief on Rehearing at 10 (quoting Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim.
App. 2005).


                                              13
Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) (internal citations

omitted--emphasis supplied); see also Ortiz v. State, 93 S.W. 3d 79, 90 (Tex. Crim.

App. 2002).

      While it is important to protect the judges of this State from traps in the
record as the result of cryptic objections or remarks from the defense, it is equally
important to protect the defendant from trial courts who may manufacture
procedural default by cryptically responding to expressly articulated objections. In
short, it should be a jurisprudential touchstone to discourage disingenuousness.
      Here, defense counsel’s objections were succinct and clear. On several

occasions, the trial court even repeats same, almost verbatim:

      THE COURT: Your objection is that people have been excluded from
      the court?

RR Vol. 2 at 8, ln. 12. To construe such persistent attempts to preserve one’s
record as a waiver of same would undermine both the letter and spirit of Rule 33.1
of the Texas Rule of Appellate Procedure and this Honorable Court’s longstanding
precedent.
                                     PRAYER

      Accordingly, this Honorable Court should affirm the Fourth Court of
Appeals and/or dismiss the rehearing as improvidently granted.


                                       Respectfully submitted

                                       /S/ GERALD H. GOLDSTEIN
                                       Gerald H. Goldstein
                                       State Bar No. 08101000
                                       Donald H. Flanary, III
                                       State Bar No. 24045877

                                         14
                                   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 March 11, 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




                                     15
