                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00432-CR


RYAN HARRISON                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE


                                     ----------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                       MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

     In nineteen points, Appellant Ryan Harrison appeals his capital murder

conviction. We reverse and remand.




     1
      See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

        On June 25, 2009, the State indicted Harrison for allegedly murdering

Germaine Dawson while in the course of committing a robbery on March 25,

2009.

A. Testimony at Trial

        Josh Madden testified that on March 25, 2009, he gave Harrison‘s phone

number to Dawson with the understanding that Dawson and Harrison were going

to conduct a drug deal involving high grade ―hydro‖ marijuana.        Tremayne

Standberry, Dawson‘s neighbor, testified that between 3:00 p.m. and 5:00 p.m.

that afternoon, Dawson obtained from Standberry‘s apartment two ounces of

marijuana, which Harrison was supposed to buy for $500 an ounce. Madden

testified that between 6:05 p.m. and 6:15 p.m. that evening, Dawson called him

to ask how far away the meeting location in Lewisville was. Melissa Buchanan,

Dawson‘s girlfriend, testified that she had been text messaging Dawson

throughout the afternoon and evening of March 25 but that Dawson had stopped

replying between 7:00 p.m. and 7:30 p.m. And Standberry testified that Dawson

did not return home that night.

        On March 26, 2009, Harrison, Madden, and Standberry engaged in a

three-way telephone conversation.2         Madden testified   that   during the



        2
       The details about how this became a three-way conversation are
disputed. Melissa Perry, Madden‘s girlfriend, testified that Madden called
Harrison, who was already talking with Standberry; Madden testified that it was

                                       2
conversation Harrison said, ―The deal went left. . . . The bitch got crazy, and I

had to hit that ho nine times, and I let off six and three stayed in the chamber.‖

Madden stated that Harrison hung up the phone but called back later explaining

that ―the deal went left‖ and that they both went their separate ways. Perry

testified that this conversation was on speaker mode and that Harrison said that

―things were supposed to go right but they went left.‖ She testified that when she

asked Harrison where Dawson was, Harrison hung up and would not answer his

phone after that.    Standberry testified that Harrison3 told him during the

conversation that he had the money and the marijuana but that Standberry said

that he was not concerned about either of those and simply wanted to know if

Dawson was okay. In response, Harrison told Standberry that the deal ―went

left,‖ which Standberry understood to mean that the deal had gone badly.

      According to the autopsy results, the cause of Dawson‘s death was

homicide by multiple gunshot wounds to the head. Detective Wawro testified that

he believed that the murder occurred between 7:15 p.m. and 7:30 p.m. on March

25, 2009.




Harrison who called Madden rather than Madden who called Harrison; and
Standberry testified that Madden called him and connected him with Harrison.
      3
         Standberry testified that the person on the phone identified himself as
―Cliff,‖ and Harrison told Lewisville Police Department Detective William Wawro
that Cliff is his nickname.


                                        3
B. Harrison’s Statement

      Harrison was arrested on March 31, 2009, but in his recorded interview

with Detective Wawro, Harrison said that he did not know that he was being

arrested for murder. He also denied having been involved in a drug transaction.

Harrison claimed that he had planned to buy a cubit4 of marijuana for $250 from

a person whose phone number Madden had given to him but that he did not end

up meeting this person because he lacked transportation to meet him in

Lewisville.5 He stated that Madden and Madden‘s girlfriend had called him later

that evening to ask about Dawson‘s whereabouts but that he told them that he

had been unable to meet with Dawson.

      Harrison stated that on the day in question, he was using a cell phone that

belonged to his cousin, Derrick Day, because Sprint disconnected Harrison‘s cell

phone due to his inability to pay his bill.6 Harrison said that he stayed at Day‘s

house all day and had Day‘s cell phone with him the entire time.

      When Detective Wawro told Harrison that cell phone records indicated that

he had been in Lewisville that evening, Harrison admitted that he was at the drug

      4
       Harrison told Detective Wawro that a cubit is one-quarter pound of
marijuana.
      5
       Detective Wawro told Harrison that based on the text messages sent and
received between Harrison and Madden, he knew the drugs involved were $500
an ounce.
      6
       Harrison stated that he was unemployed and that he lived with his eighty-
year-old grandmother as well as with his mother and his uncle, both of whom
were unemployed.


                                        4
deal with Madden but denied being the shooter. Harrison said that Madden had

picked him up at his aunt‘s house and that Harrison stayed in the car while

Madden went into Dawson‘s car to conduct the transaction. Harrison said that he

did not know what went wrong but that he heard gunshots and that Madden

returned to the car and drove Harrison back to his aunt‘s house.       Detective

Wawro told Harrison that Madden could not have been with Harrison that

evening because Madden‘s phone was in Denton immediately after the murder. 7

Harrison said that Madden‘s girlfriend had Madden‘s phone that evening, that

Madden was using Day‘s phone while Madden and Harrison were together, and

that Harrison did not personally send any text messages from that phone during

that period of time.

      When Detective Wawro told Harrison that he knew that Harrison was in

Dawson‘s car, Harrison admitted that he was in the front seat doing the drug deal

with Dawson while Madden sat in the back seat. Harrison stated that he was

holding the marijuana to inspect it when, before he was able to pay Dawson,

Madden shot Dawson multiple times and grabbed the marijuana from Harrison.

Harrison admitted that he had told some of Dawson‘s friends that he had the

marijuana, but he told Detective Wawro that he said this only to protect Madden.




      7
       Harrison said that Madden lived in Denton at the time.


                                        5
C. Cell Phone Records

      The trial court admitted into evidence call detail records for the cell phones

belonging to Day,8 Dawson,9 Madden ,10 and Harrison.11             Using both the

information in these records and the cell towers with which each cell phone

―communicated,‖ Denton Police Department Detective Keith Martin determined

the approximate locations of these four individuals when they were using their

cell phones from 5:30 p.m. to 11:30 p.m. on March 25, 2009.

      Detective Martin testified that at 6:15 p.m., Madden‘s phone was near his

Denton residence, Dawson‘s phone was near his Lewisville residence, and

Harrison‘s and Day‘s phones were in southeast Dallas. Detective Martin testified

that from 6:45 p.m. to 7:00 p.m., Madden‘s phone remained near his residence,

Dawson‘s phone had moved to the murder scene, and Harrison‘s and Day‘s

phones had moved northerly up Interstate 35. At 7:15 p.m., Madden‘s phone

remained in the same location, Harrison‘s phone could not be located because it

had no activity, and Dawson‘s and Day‘s phones were at the scene of the

murder.     At 7:45 p.m., Madden‘s phone remained in the same location, but

Dawson‘s and Day‘s phones were near Day‘s residence by 8:00 p.m.                 At


      8
      The last four digits of Day‘s cell phone number were 6239.
      9
      The last four digits of Dawson‘s cell phone number were 0370.
      10
          The last four digits of Madden‘s cell phone number were 4170.
      11
          The last four digits of Harrison‘s cell phone number were 1836.


                                          6
9:15 p.m., Harrison‘s, Day‘s, and Dawson‘s phones all had activity near

Harrison‘s residence.

      Harrison moved for a directed verdict, but the trial court denied this motion,

and the jury found Harrison guilty and sentenced him to life in prison without

parole.

                          III. Denial of Directed Verdict

     In his fifteenth point, Harrison claims that the trial court erred by denying his

motion for directed verdict because the evidence was legally insufficient to

support his conviction for capital murder, and he asks us to reverse the judgment

and enter an order of acquittal.

A. Standard of Review

      A challenge to the denial of a motion for instructed verdict is actually a

challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,

693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); McCown v. State, 192

S.W.3d 158, 160 (Tex. App.—Fort Worth 2006, pet. ref‘d). In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable


                                         7
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).          Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638; Matson v. State, 819 S.W.2d 839, 846 (Tex.

Crim. App. 1991) (holding that in determining the sufficiency of the evidence to

show an appellant‘s intent and faced with a record that supports conflicting

inferences, we ―must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflict in favor of the prosecution,

and must defer to that resolution‖).

      We must consider all the evidence admitted at trial, even improperly

admitted evidence, when performing a sufficiency review. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131 S.W.3d 485, 489–90

                                         8
(Tex. Crim. App. 2004).    The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper,

214 S.W.3d at 13.

B. Law

      In capital murder offenses committed during the course of a robbery, Tex.

Penal Code Ann. § 19.03(a)(2) (West Supp. 2011),12 the legal sufficiency

standard applies to both the charged and underlying offenses. Russo v. State,

228 S.W.3d 779, 792 (Tex. App.—Austin 2007, pet. ref‘d) (citing Matamoros v.

State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995)). To establish the murder

portion of the offense, the State must prove beyond a reasonable doubt that the

defendant intentionally or knowingly caused the death of an individual as charged

in the indictment.13 Tex. Penal Code Ann. § 19.02(b)(1) (West 2011); Russo, 228

S.W.3d at 792.




      12
       This section of the penal code provides in relevant part that ―[a] person
commits [capital murder] if the person commits murder as defined under Section
19.02(b)(1) and . . . the person intentionally commits the murder in the course of
committing or attempting to commit . . . robbery.‖ Id.
      13
       The indictment alleged that Harrison intentionally caused the death of
Dawson by shooting him with a firearm in the course of committing or attempting
to commit the robbery of Dawson.


                                        9
      For murder to qualify as capital murder in the course of a robbery,14 the

defendant‘s intent to rob must be formed before or at the time of the murder.

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Proof of robbery

―committed as an afterthought and unrelated to a murder‖ is not sufficient

evidence of capital murder. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim.

App. 1995); Nelson v. State, 848 S.W.2d 126, 131 (Tex. Crim. App. 1992), cert.

denied, 510 U.S. 830 (1993) (―The point at which appellant formulated his intent

to take his victim‘s property is critical to differentiating, in the abstract, between

his commission of capital murder in the course of robbery and his commission of

first degree murder, followed by theft.‖). If the jury could ―rationally conclude

beyond a reasonable doubt that the defendant formed the intent to obtain or

maintain control of the victim‘s property either before or during the commission of

the murder, then the State has proven that the murder occurred in the course of

the robbery.‖    Conner, 67 S.W.3d at 197.           This is true even when the

appropriation occurred after the murder. Nelson, 848 S.W.2d at 132. ―[T]he

requisite intent may be inferred from circumstantial evidence and from the




      14
       Section 29.02 of the penal code provides in relevant part that a person
commits robbery ―if, in the course of committing theft . . . and with intent to obtain
or maintain control of the property, he . . . intentionally, knowingly, or recklessly
causes bodily injury to another.‖ Tex. Penal Code Ann. § 29.02(a)(1) (West
2011). Theft, in turn, involves an unlawful appropriation, which can be satisfied
by depriving the owner of his property without his effective consent. Id. § 31.03
(West Supp. 2011).


                                         10
defendant‘s conduct.‖ Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim.

App. 1999).

C. Sufficiency Analysis

     1. Murder

      Madden testified, even if his testimony was improperly admitted, that

Harrison said, in reference to the drug deal, that he ―hit that ho nine times‖ and

―let off six and three stayed in the chamber.‖ See Clayton, 235 S.W.3d at 778. It

was reasonable for the jury to infer from this evidence that Harrison was telling

Madden that he had shot Dawson with a firearm. See Hooper, 214 S.W.3d at

16–17. It was also reasonable for the jury to infer that Harrison had the requisite

intent when he shot Dawson because there was evidence that Harrison also told

Madden that the ―bitch got crazy‖ so he ―had to‖ do what he did, which indicates

that he responded knowingly or intentionally when, as other witnesses testified,

the deal ―went left.‖   See Tex. Penal Code Ann. § 19.02(b)(1); Hooper, 214

S.W.3d at 16–17. Therefore, based on this evidence, a rational trier of fact could

have found that Harrison intentionally or knowingly caused Dawson‘s death by

shooting him with a firearm as alleged in the indictment. See Tex. Penal Code

Ann. § 19.02(b)(1); Isassi, 330 S.W.3d at 638; Russo, 228 S.W.3d at 792.

      Harrison controverted this evidence by telling Detective Wawro that

Madden was the shooter. However, it was the jury‘s responsibility to resolve the

conflicts between the witnesses‘ testimony and Harrison‘s statement and to judge

the weight and credibility of the evidence. See Isassi, 330 S.W.3d at 638; Brown,


                                        11
270 S.W.3d at 568. And we do not substitute our judgment for that of the jury,

see Williams, 235 S.W.3d at 750, but instead determine whether the jury‘s

inferences were reasonable based on the combined and cumulative force of all of

the evidence when viewed in the appropriate light. See Hooper, 214 S.W.3d at

16–17.

      It was reasonable for the jury to discredit Harrison‘s statement that

Madden was the shooter because the evidence showed that Madden‘s phone

remained near Madden‘s Denton residence all evening on March 25, while

Harrison‘s and Day‘s phones moved from southeast Dallas to the murder scene

and then back to southeast Dallas with Dawson‘s phone that evening. See id.

Harrison tried to explain this by saying that Madden‘s girlfriend had Madden‘s

phone in Denton at the time of the murder. However, it was reasonable for the

jury to infer that Madden, who was in Denton when he gave Dawson directions

between 6:05 p.m. and 6:15 p.m., could not have driven to southeast Dallas to

pick up Harrison in time for Harrison‘s phone to have been detected moving

northerly on Interstate 35 at 6:45 p.m. See id.

      Furthermore, the evidence shows that Harrison changed his story several

times during his interview with Detective Wawro, and because the jurors are the

sole judge of the weight and credibility of the evidence, see Brown, 270 S.W.3d

at 568, it was reasonable for them to conclude that Harrison was being untruthful

and lacked credibility and to disbelieve his version of the events. See Hooper,

214 S.W.3d at 16–17.       Therefore, we presume that the jury resolved any


                                        12
conflicting inferences against Harrison and defer to that resolution. See Jackson,

443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638. Accordingly,

viewing all of the evidence in the light most favorable to the verdict, we conclude

that a rational trier of fact could have found the essential elements of murder

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Isassi, 330 S.W.3d at 638.

      2. Robbery

      Turning to the underlying offense of robbery, it was reasonable for the jury

to conclude beyond a reasonable doubt that Harrison had formed the intent to

obtain control of Dawson‘s marijuana either before or during the murder. See

Conner, 67 S.W.3d at 197. As an initial matter, it was reasonable for the jury to

conclude that Harrison stole the marijuana because Standberry testified that

Harrison admitted on the morning after the murder that he possessed the

marijuana. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996)

(recognizing that the fact that appellant murdered the victim rationally supports

the conclusion that the items were stolen rather than taken with consent).

      Also, Harrison‘s theft of the marijuana was not ―an afterthought and

unrelated to [the] murder‖ because he admitted that he met with Dawson

intending to obtain marijuana, and the evidence demonstrates that he never

intended to pay for it.   See Alvarado, 912 S.W.2d at 207.        First, witnesses

testified, even if their testimony was improperly admitted, that Harrison planned

to meet Dawson to obtain two ounces of high grade ―hydro‖ marijuana that was


                                        13
priced at $500 per ounce. See Clayton, 235 S.W.3d at 778. However, Harrison

stated that he and two of the three family members with whom he lived were

unemployed and that Sprint had shut his phone off because the bill was more

than he could afford. From this evidence, it was reasonable for the jury to infer

that Harrison did not have enough money to give Dawson $1,000 and, therefore,

could not have intended to pay for the marijuana but, instead, met Dawson with

the intent to steal the drugs. See Hooper, 214 S.W.3d at 16–17; Russo, 228

S.W.3d at 794 (stating that motive, such as being in financial straits at the time of

the murder, is not an element of robbery but is relevant as a circumstance

tending to prove guilt).

      This inference is further supported by the contradiction between Harrison‘s

statement that he was supposed to get one-quarter pound of marijuana for $250

and the evidence showing that he was supposed to buy half that much marijuana

for four times the cost. Because of this inconsistency, it was reasonable for the

jury to infer that Harrison lied about the amount and cost of the marijuana to

make his story that he planned to pay for the drugs more believable.            See

Hooper, 214 S.W.3d at 16–17. Based on the combined and cumulative force of

this evidence, we conclude that it was reasonable for the jury to infer that

Harrison never intended to pay for the marijuana but, instead, intended to steal

the marijuana from Dawson. See id.; Matson, 819 S.W.2d at 846.

      Harrison claims that the evidence is insufficient to prove robbery because

the marijuana was not recovered at all, much less recovered in his possession.


                                         14
However, there is no legal requirement that property stolen must be recovered in

whole or in part to constitute the offense of robbery. Russo, 228 S.W.3d at 794

(citing Chaney v. State, 474 S.W.2d 711, 712 (Tex. Crim. App. 1972)). While

Harrison told Detective Wawro that Madden took the marijuana, it was the jury‘s

responsibility to resolve the conflicts in the evidence and to judge the weight and

credibility of the evidence. See Isassi, 330 S.W.3d at 638; Brown, 270 S.W.3d at

568. And we do not substitute our judgment for that of the jury. See Williams,

235 S.W.3d at 750. Instead, we presume that the jury resolved any conflicting

inferences against Harrison and defer to that resolution. See Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.

      Therefore, when viewing the evidence in the light most favorable to the

verdict, we conclude that a rational jury could have found beyond a reasonable

doubt all of the essential elements of capital murder, including the aggravating

element of robbery involving the timely formed intent. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; Russo, 228 S.W.3d at 795.

Accordingly, we overrule Harrison‘s fifteenth point.

                                  IV. Public Trial

      In his first point, Harrison contends that the trial court violated his

constitutional right to a public trial by excluding his family members and his friend

from the voir dire proceeding.




                                         15
A. Pertinent Facts

      When Harrison requested that his mother, grandmother, and friend be

permitted to sit in the courtroom during the voir dire proceeding, the following

exchange ensued:

      [DEFENSE COUNSEL]: And we would request that the family
      members be able to sit. Pursuant to the seating chart, it looks as if
      the jury box, which has at least 12 seats, will have seats unavailable
      or – excuse me – seats available for them to be able to view the jury
      selection of this trial and we‘d request that they be allowed to be
      present.

      [THE STATE]: Judge, there are no seats in the gallery available,
      and I think that determines whether or not someone can come in
      and sit and watch a trial. When a courtroom is full, the courtroom is
      full.

      I‘m assuming, Your Honor, that you are going to allow them to be
      present during all other portions of trial, as well as the victim‘s family.

      If the defendant‘s family should be allowed to sit in the jury box,
      we‘re going to have to ask that the victim‘s family be allowed to sit in
      the jury box, which I think also may cause a problem if you‘re having
      both families sitting in a small jury box.

      I think if there was room in the courtroom, obviously they should be
      able to sit, but I don‘t think there‘s any available seats. We‘re even
      taking up seats all the way through the back. There isn‘t a single
      inch of space available in the gallery, and I think that‘s what
      predicates whether or not someone can be seated.

      THE COURT: I agree with the state. The motion is denied. Bring
      the jury in.

      [DEFENSE COUNSEL]: Well, Judge, also for the record, the
      seating chart that I have got has folks sitting on the opposite side of
      the bar. Jurors number 46 through 50 and 51 through 55 will
      actually be on the other side of the gallery. Those folks could either
      be moved over to the jury box –

      THE COURT: Denied. Bring the jury in, Sheriff.

                                          16
Two days later, and after voir dire had been completed, defense counsel made

the following bystander bill:

      Q. Are you representing Ryan Harrison with me in this particular
      matter?

      A. Yes.

      Q. Were you present on Monday, August 16th, before jury
      selection?

      A. Yes.

      Q. At that period of time, did we have individuals that wished to
      watch the voir dire proceedings?

      A. We did.

      Q. Who?

      A. Pearly, his mother Regina, and a family friend.

      Q. And were they present in the courtroom prior to the venire being
      brought up?

      A. They were.

      Q. And were we apprised that they would not be allowed to be
      present during voir dire?

      A. We were.

      Q. Now let‘s go to the actual venire. Were all the seats occupied in
      the gallery?

      A. Yes.

      Q. And, in fact, were individuals allowed to come to the other side of
      the railing and sit on the hard benches that are directly behind
      counsel table?

      A. Yes.

      Q. How many people were in the jury box during voir dire?


                                       17
A. None.

Q.    And is the courtroom large enough to where it could
accommodate folding seats and/or empty seats to accommodate
these three individuals?

A. Yes, both in the courtroom and in the aisle between the bench
and the exit to the courtroom.

Q. Are you aware if other district courts have allowed individuals to
sit in the jury box during voir dire?

A. I am.

Q. And have they been allowed to?

A. Yes.

Q. Thank you.

      [DEFENSE COUNSEL]: That perfects the bill, Judge. Thank
      you.

      [THE STATE]: Just a few questions, Your Honor.

      [DEFENSE COUNSEL]: It‘s a bill, Judge. It‘s not open for
      cross-examination.

      [THE STATE]: Then I‘ll just state for the record that there
      were no other – there was no victim family members in here
      during voir dire, either. There were no other spectators at all
      during voir dire because there was no room.

      THE COURT: Further, for the record, the only people that are
      ever sat in the jury box while we were doing voir dire since I
      have been judge have been interns from the DA‘s office,
      people like that. There have never been any parties, any
      associates of parties, there have never been any relatives of
      parties.

      I would consider it extremely dangerous to have placed those
      people anywhere other than in the gallery, and the gallery was
      full.



                                 18
B. Law

      ―In all criminal prosecutions, the accused shall enjoy the right to

a . . . public trial.‖ U.S. Const. amend. VI; Duncan v. Louisiana, 391 U.S. 145,

148, 88 S. Ct. 1444, 1446–47 (1968) (recognizing that this right is protected

against state action by the Due Process Clause of the Fourteenth Amendment).

In Presley v. Georgia, the United States Supreme Court decided that it is ―well

settled‖ that an accused‘s Sixth Amendment right to a public trial extends to voir

dire proceedings. 130 S. Ct. 721, 723–24 (2010) (citing Waller v. Georgia, 467

U.S. 39, 104 S. Ct. 2210 (1984)). Under the Waller test, a trial court may exclude

the public under the following circumstances:

      [T]he party seeking to close the hearing must advance an overriding
      interest that is likely to be prejudiced, the closure must be no
      broader than necessary to protect that interest, the trial court must
      consider reasonable alternatives to closing the proceeding, and it
      must make findings adequate to support the closure.

467 U.S. at 48, 104 S. Ct. at 2216. ―Such circumstances will be rare, however,

and the balance of interests must be struck with special care.‖ Id. at 45, 104 S.

Ct. at 2215.

      1. Overriding Interest

      With respect to the first and fourth Waller requirements, despite the

existence of weighty interests, a trial court‘s ―broad and general‖ findings will not

justify closure. Id. at 48, 104 S. Ct. at 2216.

      The generic risk of jurors overhearing prejudicial remarks,
      unsubstantiated by any specific threat or incident, is inherent
      whenever members of the public are present during the selection of


                                          19
      jurors. If broad concerns of this sort were sufficient to override a
      defendant‘s constitutional right to a public trial, a court could exclude
      the public from jury selection almost as a matter of course. . . .

             There are no doubt circumstances where a judge could
      conclude that threats of improper communications with jurors or
      safety concerns are concrete enough to warrant closing voir dire.
      But in those cases, the particular interest, and threat to that interest,
      must ―be articulated along with findings specific enough that a
      reviewing court can determine whether the closure order was
      properly entered.‖

Presley, 130 S. Ct. at 725 (quoting Press-Enter. Co. v. Super. Ct. of Cal.,

Riverside Cnty., 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)).

      Granting petition to review for the first time an appellate court‘s application

of Presley, the court of criminal appeals recognized that jury-panel contamination

and courtroom security are ―indeed substantial concerns‖ but held that the trial

court failed to ―identify specific circumstances sufficient to remove its

concerns . . . from the realm of the generic.‖ Steadman v. State, No. PD-1356-

10, 2012 WL 716010, at *6 (Tex. Crim. App. Mar. 7, 2012) (―Under Presley, it is

obvious that either one alone could be sufficiently momentous to warrant closure

under the appropriate circumstances.‖). Before voir dire in Steadman, the trial

court insisted that the gallery was full and denied Steadman‘s request to seat his

family members in the jury box or to allow them to sit or stand elsewhere in the

courtroom, but the trial court ―made no further explanation on the record why the

appellant‘s family members would not be allowed in the courtroom during voir




                                         20
dire.‖    Id. at *1–2.   Long after voir dire had been conducted, the trial court

retrospectively entered express findings of fact,15 which included in part:

         [1]. The space on each side of the gallery area is narrow. Persons
         standing or sitting in that area would be in close proximity to one or
         more of the persons on the panel.

         [2]. The case on trial was one which was expected to be
         ―emotionally-charged[.]‖

         [3]. The Court believed that having one or more of the Defendant‘s
         family members sitting in close proximity to the panel members
         would make such panel members uncomfortable and reticent to fully
         express their feelings, attitudes and possible prejudices.

         [4]. There was space adequate for the Defendant‘s family members
         to sit or stand in the area behind ―the bar,‖ and in front of the bench.

         [5]. The space behind the bar [a]nd in front of the bench is reserved
         for parties, their attorneys, the attorney‘s support staff and court
         personnel.

         [6]. Allowing persons other than the parties, their attorneys, the
         attorney‘s staff and court personnel in this space creates security
         concerns.

         [7]. Security concerns are heightened in this case.




         15
         Immediately after the trial court refused to open the trial to the public, it
granted Steadman‘s request to make a bill of exception ―later on,‖ but Steadman
never pursued this bill. Id. On appeal, the State maintained that because
Steadman never pursued the bill, the lack of findings in the record was not the
State‘s fault and that the cause should be remanded for additional fact findings.
Id. at *2. The court of appeals granted this motion, and the trial court entered its
findings accordingly. Id. at *2–3. When the court of criminal appeals granted
petition, it chose not to address the ―thorny issues‖ related to whether the court of
appeals should have allowed the trial court ―to file supplemental findings of fact to
retroactively justify a ruling that the record reveals was originally made solely on
the basis of an inadequate concern for overcrowding.‖ Id. at *5.


                                           21
       [8]. Placing chairs for family members to sit in the area in front of the
       bench would interfere with access by the Court bailiff and other
       security personnel to the Defendant.

       [9]. There was space adequate for the Defendant‘s family to sit or
       stand in the jury box.

       [10]. The jury box is reserved for the selected jury members during
       a jury trial.

       ....

       [11].  There are no other courtrooms in the Taylor County
       Courthouse larger than the 350th District Court courtroom.

       [12]. The central jury room on the first floor of the Taylor County
       Courthouse is a significantly larger space than the 350th District
       Court courtroom.

       [13]. Moving the voir dire proceedings to the central jury room area
       after the sixty person panel had been seated could cause delay.

       [14]. The central jury room is not configured as a courtroom. [Its]
       use as a venue for voir dire is inconvenient.

       [15]. The central jury room is less secure than the 350th District
       Court. In March, 2008, the Taylor County Courthouse did not use a
       metal detector or otherwise restrict the public‘s open access to the
       first floor.

       [16]. The Court did not seek to close the voir dire process but only
       to control the courtroom arrangement for security and decorum
       purposes.

Id. at *3.

       In light of these findings, the court of criminal appeals reasoned that

―[w]hile the judge identified two ‗particular interests‘ sufficient, in the abstract, to

exclude the public, he failed to ‗articulate‘ a tangible ‗threat‘ to either of the

interests he identified.‖ Id. at *6 (citing Presley, 130 S. Ct. at 725) (―Presley took



                                          22
pains to emphasize that ‗broad‘ or ‗generic‘ concerns will not serve to justify

closure; otherwise, they could become talismans for exclusion of the public in

any and every case.‖).

      As for jury-panel contamination resulting from the close proximity between

spectators and prospective jurors, the court emphasized the inexistence of

concrete facts related to this concern other than the ―space limitations in the

courtroom itself.‖ Id. at *7. The court clarified that concrete facts might include

―evidence of any outburst on the part of the appellant‘s family members,‖ a

―history of such outbursts in prior court proceedings,‖ a ―particular basis to

suppose that the family members would attempt to speak to, or otherwise try to

communicate with or influence, any of the prospective jurors simply because of

their proximity.‖ Id. ―Without more tangible evidence of an actual or impending

threat,‖ the court concluded that the trial court‘s belief or fear regarding jury-panel

contamination could not actually constitute an overriding interest. Id. (cautioning

that to exclude members of the public based on what might happen ―is too

speculative to defeat the appellant‘s otherwise compelling Sixth Amendment right

to have them present‖).

      As for courtroom security, the court highlighted the absence of concrete

facts—such as prior public violence, a ―documented history of disruptive or

contumacious conduct in the courtroom,‖ or a suggestion of threats made against

court participants—to support the trial court‘s conclusion that security concerns

were heightened.       Id.   In concluding that the trial court‘s findings were


                                          23
insufficiently documented, the court observed that ―[i]f the fact that emotions

might run high in the course of a locally sensational trial could alone justify

closure, a trial court would be entitled to exclude the public—not just from voir

dire proceedings but from entire trials—in any number of criminal cases.‖ Id.

      2. Reasonable Alternatives

      With respect to the third Waller requirement, the trial court, not the

defendant, has the burden to consider reasonable alternatives to closure:

             Trial courts are obligated to take every reasonable measure to
      accommodate public attendance at criminal trials. Nothing in the
      record shows that the trial court could not have accommodated the
      public at Presley‘s trial. Without knowing the precise circumstances,
      some possibilities include reserving one or more rows for the public;
      dividing the jury venire panel to reduce courtroom congestion; or
      instructing prospective jurors not to engage or interact with audience
      members.

Presley, 130 S. Ct. at 725.

      In Steadman, the court of criminal appeals identified three alternatives that

the trial court, insofar as the record revealed, failed to consider sua sponte.

Steadman, 2012 WL 716010, at *8 (―That a trial court can reasonably discount

some alternatives, however, does not insulate it from Presley‘s mandate that it be

able to sensibly reject ‗all reasonable alternatives‘ before it can exclude the

public from voir dire proceedings.‖ (quoting Presley, 130 S. Ct. at 725)). First,

the court discussed the trial court‘s failure to consider dividing the venire panel to

reduce courtroom congestion. Id. The court also observed that the trial court did

not consider instructing the prospective jurors not to interact with audience



                                         24
members and that the record revealed no concrete reason to believe that such

an instruction ―would lack efficacy.‖ Id. (concluding that if the trial court had both

divided and instructed the panel, any danger would have been ―wholly defused‖).

Finally, the court pointed out that the trial court could have placed prospective

jurors in the jury box, allowing the family ―to observe the voir dire from the seats

thus vacated in the gallery.‖ Id.

C. Analysis

      1. Overriding Interest

      Just as the trial court did in Steadman, the trial court in the present case

initially excluded Harrison‘s family on the basis of overcrowding and made no

further explanation on the record before voir dire apart from agreeing with the

State‘s assertion that seating both families in the jury box ―may cause a

problem.‖ See id. at *1–2. Afterwards, when Harrison made his bill of exception,

the trial court stated that it ―would consider it extremely dangerous to have placed

those people anywhere other than in the gallery.‖16



      16
        To the extent that it is argued that we should remand this case for
findings of fact the way that the court of appeals did in Steadman, we note that
Harrison made his bystander bill, while Steadman never pursued his bill. See id.
at *2. We also note that the trial judge who presided over this case below is no
longer sitting. Cf. Taiwo v. State, No. 01-07-00487-CR, 2010 WL 2306040, at *3
n.2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2010, pet. ref‘d) (mem. op., not
designated for publication) (citing Garcia v. State, 15 S.W.3d 533, 535 (Tex.
Crim. App. 2000) (―[I]t is not appropriate for the second judge in the instant case
to make findings of fact based solely on the written transcript of the initial
hearing.‖)).


                                         25
      We acknowledge that courtroom security is indeed a substantial concern in

the abstract and could alone be ―sufficiently momentous to warrant closure under

the appropriate circumstances.‖      See Steadman, 2012 WL 716010, at *6.

However, like in Steadman, the trial court failed to ―identify specific

circumstances sufficient to remove its concerns about . . . courtroom security

from the realm of the generic.‖ See id.

      Indeed, even if the trial court adopted the State‘s assertion that seating

both families together ―may cause a problem,‖ this finding regarding what might

happen is inherently ―too speculative to defeat [Harrison]‘s otherwise compelling

Sixth Amendment right to have them present.‖ See id. at *7. And the trial court‘s

statement that it ―would consider‖ the families‘ proximity to each other to be

dangerous is, without more, merely a statement of the trial court‘s belief or fear

that cannot constitute an overriding interest under Steadman.       See id.    The

speculative and abstract nature of these statements is only enhanced when we

consider that nothing in the record suggests that the victim‘s family was even

present and interested in attending voir dire. See id.

      In addition to being speculative and abstract, neither of these findings

specified what the problem or danger might have been and, thus, failed to

articulate a tangible, actual, or impending threat.      See id. at *6–7.     As in

Steadman, the record lacks concrete facts such as ―evidence of any outburst on

the part of the [parties‘] family members,‖ a ―history of such outbursts in prior

court proceedings,‖ prior public violence, a ―documented history of disruptive or


                                          26
contumacious conduct in the courtroom,‖ a suggestion of threats made against

each other, or a particular basis to suppose that the family members would speak

to or otherwise interact with each other because of their proximity. See id. at *7;

Johnson v. State, 137 S.W.3d 777, 779 (Tex. App.—Waco 2004, pet. ref‘d)

(holding that the trial court was acting to preserve an overriding interest to protect

the jury from improper influences when the trial court excluded the defendant‘s

aunt from the courtroom after her actions had already threatened to improperly

influence the jury). Although Harrison was standing trial for capital murder, the

Steadman court considered the defendant‘s prior public violence, not the alleged

violence for which he was standing trial at the time. See Steadman, 2012 WL

716010, at *7. And even if we were to consider the nature of Harrison‘s alleged

crime, nothing in the record suggests that his alleged violent character is

transferable to his friend and family members.

      The only concrete fact in the record to support the closure is that there

were space limitations in the gallery, and even if we were to conclude that the

trial court reasonably expected violence to erupt between families in close

proximity to each other during an emotionally-charged trial, this would be

insufficient to justify closure. See id. at *3, 7. As Steadman cautioned, if it were

sufficient, ―a trial court would be entitled to exclude the public—not just from voir

dire proceedings but from entire trials—in any number of criminal cases.‖ See id.

at *6–7; Presley, 130 S. Ct. at 725 (noting that if broad concerns were enough, ―a

court could exclude the public from jury selection almost as a matter of course‖).


                                         27
      Because the threat to courtroom safety was speculative, abstract, and

unsupported by tangible evidence or concrete factual findings, the trial court

failed to satisfy Waller‘s requirements to advance an overriding interest that

closure was likely to prejudice and to make findings adequate to support closure.

See 467 U.S. at 48, 104 S. Ct. at 2216; Steadman, 2012 WL 716010, at *5–7.

      2. Reasonable Alternatives

      Even if the trial court had sufficiently documented facts to reasonably

discount Harrison‘s first proffered alternative to closure, this did ―not insulate it

from Presley‘s mandate that it be able to sensibly reject ‗all reasonable

alternatives‘ before it [could] exclude the public from voir dire proceedings.‖ See

Steadman, 2012 WL 716010, at *8 (quoting Presley, 130 S. Ct. at 725). Indeed,

Harrison‘s attorney was in the middle of offering another alternative when the trial

court interrupted him midsentence and ordered the bailiff to bring the prospective

jurors into the courtroom. Insofar as the record reveals, this alternative was one

mentioned in Presley—seating a few prospective jurors in the jury box, which

would have allowed the two families to concurrently but separately ―observe the

voir dire from the seats thus vacated in the gallery.‖ See id.

      As in Steadman, the trial court in this case also failed to consider sua

sponte the possibility of dividing the venire panel in half to reduce courtroom

congestion. See id. (citing Presley, 130 S. Ct. at 725). Also, nothing in the

record suggests that admonishing the families not to interact with each other,

much like the admonishment in Presley to the prospective jurors not to interact


                                         28
with audience members, would have lacked efficacy. See id. (citing Presley, 130

S. Ct. at 725).   Indeed, as in Steadman, combining more than one of these

alternatives likely would have defused any danger about which the trial court had

concerns. See id.

      Therefore, in addition to failing to satisfy Waller‘s first and fourth

requirements, the trial court failed to satisfy Waller‘s third requirement to consider

all reasonable alternatives to closure. See 467 U.S. at 48, 104 S. Ct. at 2216.

Instead of the closure being a situation in which the trial court took ―special care‖

to strike a balance between competing the interests, see id. at 45, 104 S. Ct. at

2215, the trial court excluded Harrison‘s family members and friend ―almost as a

matter of course.‖ See Presley, 130 S. Ct. at 725. Thus, we cannot say that this

was one of the rare circumstances in which the trial court was justified in

excluding the public from the voir dire proceeding. See id. at 724 (citing Waller,

467 U.S. at 45, 104 S. Ct. at 2215).          Accordingly, the trial court violated

Harrison‘s Sixth Amendment right to a public trial, see U.S. Const. amend. VI,

and we must sustain his first point.

      3. Relief

      The State argues that even if the exclusion was unjustified, it was too trivial

to subvert the values of the public trial guarantee.       The Second Circuit has

recognized a triviality exception under which convictions are affirmed when

exclusions, while unjustified, are ―deemed to be too ‗trivial‘ to implicate the

interests protected by the Sixth Amendment right to a public trial.‖ Steadman,


                                         29
2012 WL 716010, at *9 n.41 (quoting United States v. Gupta, 650 F.3d 863, 864

(2d Cir. 2011)). However, the court of criminal appeals held that ―[w]hen the

constitutionally tainted portion of trial encompasses the entire jury-selection

process,‖ as it did here, ―relief involves a new voir dire and a new jury; perforce, it

necessitates a new trial.‖     Id. at *9.    Accordingly, under Steadman, we are

constrained to sustain Harrison‘s first point without considering whether the

unjustified closure subverted the values of the public trial guarantee. See id. at

*9 & n.41.

                                   V. Conclusion

       Because we overruled Harrison‘s fifteenth point but sustained his first

point, we reverse the trial court‘s judgment and remand the case to the trial court

for a new trial.17


                                                     PER CURIAM

PANEL: MCCOY, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 29, 2012




       17
       Because these points are dispositive, we need not address Harrison‘s
remaining points. See Tex. R. App. P. 47.1.


                                            30
