                               Fourth Court of Appeals
                                      San Antonio, Texas

                                                 OPINION
                                         No. 04-11-00705-CR

                                        Joseph Allen GARCIA,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 341st Judicial District Court, Webb County, Texas
                               Trial Court No. 2005CRN000643-D3
                         Honorable Elma T. Salinas Ender, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: March 20, 2013

REVERSED AND REMANDED

           Appellant Joseph Allen Garcia was convicted by a jury of one count of first degree felony

murder and three counts of second degree felony aggravated assault with a deadly weapon. On

appeal, Appellant asserts that his Sixth Amendment right to a public trial was violated when the

trial court closed voir dire to all others except the venire panel. We agree. We reverse the trial

court’s judgment and remand this cause to the trial court for a new trial.
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                                             BACKGROUND

        Appellant Joseph Allen Garcia was charged with one count of first degree felony murder

of Mario Alberto Gonzalez and three counts of second degree felony aggravated assault with a

deadly weapon. Garcia chose a jury trial for both phases: guilt/innocence and punishment.

        On the Friday before the Monday voir dire, the trial court advised the parties that with a

full venire panel, there would be no room left in the courtroom for spectators. Appellant’s

counsel asked for six of Appellant’s family members to be present during voir dire; counsel

suggested they could sit in the empty seats in the jury box. But the trial court reiterated that there

would not be any room in the courtroom for others “if we have the maximum number of [venire

members].” Appellant’s counsel objected to the exclusion of Appellant’s family members from

voir dire and asserted that such exclusion would violate Appellant’s Sixth Amendment right to a

public trial. Appellant’s counsel suggested that the trial court conduct voir dire in the central

jury room, but the court noted that that room would be filled on Monday—the day of Appellant’s

voir dire. Counsel also suggested that the family members could be seated in the jury box, but

the trial court also rejected that alternative.

        On the day of voir dire, the venire panel was brought in, and Appellant asked for three of

his family members to be seated in the courtroom. The trial court, expressing concern about the

fire code limit on the maximum number of persons who could be in the courtroom at one time,

stated that the three could not be accommodated because the room was already filled to its

maximum safe capacity.

        At the conclusion of the trial, the jury found Appellant guilty on all four counts and

sentenced him to seventy years for the murder, and lesser terms and fines for the other counts. In

eleven issues, Garcia appeals the verdict and the punishment. We will address Garcia’s eighth

issue first: whether his Sixth Amendment right to a public trial was violated.
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                                          RIGHT TO A PUBLIC TRIAL

         Appellant argues that when the trial court disallowed Appellant’s three family members

from being present in the courtroom during voir dire, the trial court violated his Sixth

Amendment right to a public trial. He asserts that the appropriate remedy is to reverse his

conviction and remand his case for a new trial.

A. Applicable Law

         In a criminal prosecution, the defendant has a right to a public trial. See U.S. CONST.

amends. VI, XIV; Presley v. Georgia, 130 S. Ct. 721, 723 (2010) (per curiam) (reiterating that

the Sixth Amendment right to a public trial applies to the states via the Due Process Clause of the

Fourteenth Amendment); Steadman v. State, 360 S.W.3d 499, 504 (Tex. Crim. App. 2012).

“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”

Presley, 130 S. Ct. at 724; accord Steadman, 360 S.W.3d at 505. If a trial court wishes to close

voir dire, the trial court “must advance an overriding interest that is likely to be prejudiced, the

closure must be no broader than necessary to protect that interest, [it] must consider reasonable

alternatives to closing the proceeding, and it must make findings adequate to support the

closure.” See Waller v. Georgia, 467 U.S. 39, 48 (1984); accord Lilly v. State, 365 S.W.3d 321,

328–29 (Tex. Crim. App. 2012).

         In considering reasonable alternatives, “trial courts are required to consider alternatives to

closure even when they are not offered by the parties.” Presley, 130 S. Ct. at 724 1; accord Lilly,

365 S.W.3d at 329; Steadman, 360 S.W.3d at 509. A closure is not justified if there are

reasonable alternatives to closure that the trial court cannot “sensibly reject.” See Steadman, 360


1
  Even the dissent shows some support for the trial court’s duty to consider, sua sponte, reasonable alternatives to
closure. See Presley v. Georgia, 130 S. Ct. 721, 727 (2010) (per curiam) (Thomas, J., joined by Scalia, J.,
dissenting) (“[T]he Court may well be right that a trial court violates the Sixth Amendment if it closes the courtroom
without sua sponte considering reasonable alternatives to closure.”).

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S.W.3d at 509; see also Presley, 130 S. Ct. at 724–25; Lilly, 365 S.W.3d at 333. If voir dire was

closed, we must reverse the trial court’s judgment if “the record fails to show that [the] trial court

considered all reasonable alternatives to closure.” Lilly, 365 S.W.3d at 329 (citing Presley, 130

S. Ct. at 725) (recognizing that Steadman reversed the trial court’s judgment “because the trial

court failed to consider all reasonable alternatives”).

B. Analysis

        To close Appellant’s voir dire without violating his Sixth Amendment right to a public

trial, the trial court had to consider all reasonable alternatives to closure, sensibly reject each one,

and issue specific findings that justified the closure in light of controlling law. See Steadman,

360 S.W.3d at 509; see also Waller, 467 U.S. at 48; Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d

at 329. We consider whether voir dire was closed, whether any closure was justified, and

whether the record contains specific findings to support the closure.

        1. Was Voir Dire Closed?

        On the day of voir dire, Appellant asked that three of his family members be allowed to

be present in the courtroom during voir dire. The trial court again expressed its concern that the

courtroom could not safely hold the venire panel and anyone else from the public.                 Over

Appellant’s Sixth Amendment objection, the trial court denied Appellant’s request and excluded

Appellant’s family members from voir dire. We conclude that the trial court closed voir dire.

Cf. Presley, 130 S. Ct. at 722; Steadman, 360 S.W.3d at 500–01. Therefore, we turn to the

question of whether the closure was justified. See Lilly, 365 S.W.3d at 329.

        2. Was Closure Justified?

        The Steadman court addressed a very similar situation. See Steadman, 360 S.W.3d at

506–11.    There, in the trial court’s written findings, the trial court found there were no

courtrooms larger than its own other than the central jury room; the central jury room was “not
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configured as a courtroom” so that using it would be “inconvenient”; and “[m]oving the voir dire

proceedings to the central jury room . . . could cause delay.” Id. at 502. The Steadman court

expressly rejected mere delay or inconvenience as reasons for closing voir dire. See id. at 508.

       Here, the trial court expressly considered using the central jury room, but rejected the

idea because the central jury room was in use. Cf. id. at 502. The trial court also considered

rescheduling voir dire, but rejected that alternative as one that would cause unacceptable delay.

Cf. id. While we recognize that relocating voir dire to a larger courtroom or rescheduling voir

dire for a different day are inconvenient alternatives that tax judicial economy, “neither

convenience nor judicial economy can constitute an ‘overriding interest’” that warrants closure.

See id. at 508. Thus, neither of these two interests warranted closure. See id.

       A third interest the trial court identified was compliance with the fire code limit on the

number of persons the courtroom could safely accommodate. When Appellant proposed that his

family members could be seated in the empty jury box, the trial court rejected this alternative as

noncompliant with the fire code. Clearly, the trial court has some responsibility for complying

with applicable safety regulations, but that responsibility does not excuse the trial court from

considering other alternatives to closing voir dire. See Presley, 130 S. Ct. at 725; Steadman, 360

S.W.3d at 505–06. The trial court was obligated to consider all reasonable alternatives. See

Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d at 329; Steadman, 360 S.W.3d at 505–06. For

example, the trial court could have considered dividing the venire panel to reduce the number of

people in the courtroom to allow for Appellant’s family members to attend voir dire; it did not.

Contra Presley, 130 S. Ct. at 725 (identifying dividing the venire panel as a reasonable

alternative a trial court must consider). Therefore, we necessarily conclude that the trial court

did not consider every reasonable alternative and thus the closure was not justified. See Lilly,

365 S.W.3d at 329; Steadman, 360 S.W.3d at 508–09.
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         3. Record Supports Closure?

         Even assuming arguendo that the trial court’s reasons justified closure, the record does

not show that the trial court produced specific findings of fact to support its closure. Cf. Lilly,

365 S.W.3d at 333; Steadman, 360 S.W.3d at 505–06. There is no finding on the actual fire code

limit for the courtroom or that the Appellant’s family members would have exceeded the

maximum allowable limit. There is no finding that the trial court could not have rescheduled

voir dire for a different day when a larger courtroom would be available. Cf. Steadman, 360

S.W.3d at 505–06.      Finally, there are no findings that show the trial court considered all

reasonable alternatives, such as dividing the venire panel, and sensibly rejected each one. Cf.

Presley, 130 S. Ct. at 725. Thus, the trial court failed to produce findings of fact that supported

the closure. Cf. Lilly, 365 S.W.3d at 333; Steadman, 360 S.W.3d at 505–06.

C. Conclusion

         The record does not show that the trial court considered all reasonable alternatives,

“sensibly reject[ed]” each of them, and issued specific findings that justify the closure in light of

controlling law. See Presley, 130 S. Ct. at 725 (all reasonable alternatives); Lilly, 365 S.W.3d at

329 (same); Steadman, 360 S.W.3d at 509 (sensibly reject); see also Waller, 467 U.S. at 48

(Waller test). Thus, Appellant’s Sixth Amendment right to a public trial was violated. See Lilly,

365 S.W.3d at 333; Steadman, 360 S.W.3d at 510–11. We sustain Appellant’s eighth point of

error.

                                        REMAINING ISSUES

         Because we have concluded that Appellant’s Sixth Amendment right to a public trial was

violated, and the appropriate remedy is to reverse the judgment and remand the cause for a new

trial, we need not address Appellant’s other issues. See TEX. R. APP. P. 47.1. We overrule

Appellant’s remaining issues as moot.
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                                         CONCLUSION

        By closing voir dire without being able to sensibly reject all reasonable alternatives to

closure, the trial court violated Appellant’s Sixth Amendment right to a public trial. Therefore,

we must reverse the trial court’s judgment of conviction on all four counts and remand this cause

to the trial court for a new trial.


                                                Patricia O. Alvarez, Justice

PUBLISH




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