Opinion filed July 25, 2019




                                     In The

        Eleventh Court of Appeals
                                  __________

                              No. 11-14-00284-CR
                                  __________

                     CODY DARUS FRENCH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 10940-D


          MEMORANDUM OPINION ON REMAND
       The jury convicted Cody Darus French of the first-degree felony offense of
aggravated sexual assault of a child. The trial court assessed his punishment at
confinement for sixty years in the Institutional Division of the Texas Department of
Criminal Justice. In an earlier opinion, we reversed Appellant’s conviction and
remanded the case for a new trial. French v. State, 534 S.W.3d 693 (Tex. App.—
Eastland 2018), rev’d, 563 S.W.3d 228 (Tex. Crim. App. 2018). We held that there
was jury charge error and that Appellant suffered “some” harm from the error. Id.
at 698, 700–01. The Court of Criminal Appeals reversed, holding that, although
there was jury charge error, Appellant did not suffer “some” harm from the jury
charge error. French v. State, 563 S.W.3d 228, 239 (Tex. Crim. App. 2018). On
remand, we now address Appellant’s remaining issue: whether the trial court erred
when it sua sponte closed the courtroom for a hearing on Appellant’s request for
new counsel. We affirm.
                                 Background Facts
      During Appellant’s trial, Appellant’s defense counsel informed the trial court
that Appellant would like an opportunity to speak to the court. The trial court
informed the public sitting in the courtroom: “I am going to have to take something
up that I need you all to leave the courtroom just for a few minutes. When we’re
finished, I will let you know and you can come back in.” After the public left the
courtroom, Appellant requested new counsel and provided reasons for his request.
The trial court denied Appellant’s request. Subsequently, the trial court allowed the
public to come back into the courtroom.       Neither Appellant nor his trial counsel
objected to the hearing being conducted without the public in attendance.
                                       Analysis
      Appellant contends that the trial court erred when it sua sponte closed the
courtroom for the hearing on Appellant’s request for new counsel. Appellant
contends that the alleged error constituted either a category one or category two right
under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Category one
rights are mandatorily enforced, and category two rights are subject to waiver.
Peyronel v. State, 465 S.W.3d 650, 652 (Tex. Crim. App. 2015) (citing Marin, 851
S.W.2d at 279). By contrast, category three rights are subject to forfeiture in the
absence of an objection. Id. The State contends that the right to a public trial is a


                                          2
category three right and that Appellant failed to preserve error on this issue. We
agree with the State’s contention.
        The Sixth Amendment of the United States Constitution guarantees an
accused the right to a public trial in all criminal prosecutions.                           U.S. CONST.
amend. VI. The violation of the right to a public trial is structural error that does not
require a showing of harm. Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App.
2012) (citing Johnson v. United States, 520 U.S. 461, 468–69 (1997)). While this
appeal was pending, the Texas Court of Criminal Appeals determined in Peyronel
that the right to a public trial is a forfeitable right and that it is waived without an
objection. 465 S.W.3d at 653. Assuming arguendo that Appellant had a right for
the public to be present when he presented his complaints about trial counsel during
trial, Appellant did not preserve error for appellate review because he did not object
when the trial court required the public to leave the courtroom. Id. We overrule
Appellant’s sole remaining issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE
July 25, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      3
