Peyronel v. State

465 S.W.3d 650

Bobby Joe Peyronel, Appellant

v.The State of Texas

NO. PD–1274–14

Court of Criminal Appeals of Texas.

Delivered: June 24, 2015

Attorneys for Appellant: Frances Young Bourliot, Harris County Public Defender's Office, 1201 Franklin Street, 13th Floor, Houston, TX 77002.

Attorneys for The State: Eric Kugler, Assistant District Attorney, 1201 Franklin, Suite 600, Houston, TX 77002, Lisa C. McMinn, State's Attorney, Austin.

OPINION

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, Richardson, Yeary, and Newell, JJ., joined.

In this case we must decide whether a defendant's right to a public trial is subject to forfeiture. Because we hold that the right at issue is forfeitable and Appellant failed to preserve his public-trial complaint for appellate review, we reverse the portion of the judgment of the court of appeals remanding for a new punishment trial and otherwise affirm the judgment of the trial court.

Background

Appellant was convicted of aggravated sexual assault of a child under fourteen years of age. Tex. Penal Code § 22.021(a)(2)(B). The jury fined him $10,000 and assessed his punishment at fifty years in the Correctional Institutions Division of the Texas Department of Criminal Justice. During a break in the punishment-phase proceeding, an unidentified woman that the record shows was “part of the defense” approached a juror and asked, “How does it feel to convict an innocent man?” At a conference following the comment and outside the presence of the jury, the trial court excused all punishment-phase witnesses from the courtroom on its own motion,¹ but the State also asked the trial court to exclude from the courtroom “female members of the defendant's family ... during testimony. I just don't want any of the jurors at this point to feel intimidated while having to make a decision.” Defense counsel then stated,

Your Honor, we'd respond to that by saying that's too broad to exclude [Appellant]'s wife and daughter to create the impression in the jury's mind that he has absolutely no support whatsoever here.

The State defended its request by noting that it would normally “never ask” for exclusion, but it believed that the limited exclusion was necessary in this situation because it was clear throughout the trial that Appellant had support, that the comment crossed the line into what the State considered intimidation of a juror, and that the woman who made the comment was still unidentified. The judge agreed but also decided to exclude everyone in the gallery.

On appeal, Appellant argued that he preserved a complaint for review that his right to a public trial was violated and that the closure of the courtroom violated that right.² The State argued that a defendant's public-trial right is subject to forfeiture, and that Appellant's complaint was not properly preserved. The court of appeals agreed with Appellant that he preserved his claim, reversed the trial-court judgment as to punishment, and remanded the cause to the trial court for a new punishment hearing. See Peyronel v. State, 446 S.W.3d 151, 162 (Tex.App.–Houston [1st Dist.] 2014, pet. granted).

We granted the State's petition for discretionary review on a single ground: “The court of appeals erred in finding that the public-trial issue was preserved for review when the appellant [did] not ask the trial court to do anything and did not alert the trial court to the specific grounds that he would raise on appeal.”³

Discussion

We have never directly addressed the issue of whether a person's right to a public trial is mandatory, subject to waiver, or can be forfeited through inaction.⁴ We begin by discussing our seminal decision in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993).

In Marin, we differentiated between rights that are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture. Id. at 279. Regarding mandatorily enforced rights, we stated that “[i]mplementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties.” Id. We also noted that some rights, while not capable of being forfeited, may be expressly waived by a defendant. Id. (citing Janecka v. State, 739 S.W.2d 813, 829 (Tex.Crim.App.1987) ) (stating that a waiver must amount to an “intentional relinquishment or abandonment of a known right or privilege”). Finally, addressing rights that can be forfeited by inaction alone, we concluded that “[a]ll but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category.” Id.

We now must decide which Marin category the right to a public trial falls within, and because this is an issue of first impression, we look to other jurisdictions for guidance. At least one federal circuit court of appeals has concluded that the right to a public trial can be only waived.⁵ Other jurisdictions have held that the public-trial right is subject to the invited-error doctrine under state law⁶ or can be waived by consent,⁷ but our research reveals no jurisdictions that require the public-trial right to be implemented regardless of the parties' wishes. Rather, we have found that the majority of jurisdictions addressing the issue have held that the public-trial right may be forfeited.⁸ In reaching that conclusion, many courts cite to the Supreme Court's decision in Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960),⁹ and although not faced with the issue since,¹⁰ even the Supreme Court has cited Levine for that proposition.¹¹ We agree with the majority of courts and hold that a complaint that a defendant's right to a public trial was violated is subject to forfeiture. We now must decide whether the Appellant preserved his public-trial claim in this case.

Application

During a break in the punishment-phase proceeding, a woman that was “part of the defense” asked a juror how it feels to convict an innocent man. At a conference that followed the comment and outside the presence of the jury, the judge determined that the best way to assuage jury intimidation fears was to exclude all members from the gallery for the remainder of the punishment phase. Appellant argued that the proposed remedy was too broad and would “create the impression in the jury's mind that [Appellant] has absolutely no support whatsoever here.” From this excerpt, it appears to us that Appellant was worried about the perception of the jury if no one was present in the gallery to support him, but it is hardly clear from the record that Appellant's argument was the functional equivalent of asserting that his constitutional right to a public trial was being violated.¹² We agree with Appellant that he was not required to use “magic language” to preserve his public-trial complaint for review, but Appellant had the burden to “state [ ] the grounds for the ruling ... sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1. Instead, Appellant is now trying to “raise an abstract claim ... as an afterthought on appeal.” See Levine, 362 U.S. at 620, 80 S.Ct. 1038. We sustain the State's ground for review, reverse the judgment of the court of appeals in part, and otherwise affirm the judgment of the trial court.

Johnson, J., filed a dissenting opinion.

Alcala, J., concurred.

Johnson, J., filed a dissenting opinion.

On direct appeal, one of appellant's claims asserted that the trial court violated his “right to a public trial when it improperly excluded all of his friends and family who were present in the courtroom” and “in the gallery” during the punishment phase of the trial. The court of appeals concluded that the trial court improperly ordered a total closure of the courtroom, reversed the judgment as to punishment, and remanded to the trial court to conduct a new punishment hearing. Peyronel v. State, 446 S.W.3d 151, 159, 162 (Tex. App.–Houston [1st Dist.] 2014). On discretionary review, the majority granted the state's first ground for review and now sustains that ground¹ and “reverse[s] the judgment of the court of appeals that Appellant preserved a public-trial complaint for appellate review.”Peyronel v. State, No. PD–1274–14, ––– S.W.3d –––– (Tex.Crim.App., delivered June 24, 2015). I respectfully dissent.

The record reflects that after the victim's father testified as the first punishment witness, the court took a short break because the next witness was on her way to the courthouse but had not yet arrived. During that break, the trial court became aware² that, “Somebody approached one of the jury members and said: How does it feel to convict an innocent man?” IX R.R. 7. That person was an unidentified woman. The prosecutor asked that “females, female members of the defendant's family not be allowed in the courtroom during testimony[,]” as she did not want any of the jurors to feel intimidated while having to make a decision. IX R.R. 9. Appellant objected that such an exclusion was “too broad to exclude [his] wife and daughter to create the impression in the jury's mind that he has absolutely no support whatsoever here.” IX R.R. 9. After the prosecutor suggested that appellant's support seemed to have crossed the line into juror intimidation, the trial court stated, “Nobody will stay in the courtroom while we proceed with this matter[,]” and that his prospective witnesses were to be instructed “to wait outside until such time as they can come in,” including both witnesses and gallery members. IX R.R. 9–10.

The court of appeals pointed out that appellant “made clear that he did not agree to the trial court's exclusion of his family and argued that exclusion would create a negative impression in the jury's eyes.” Peyronel, 446 S.W.3d at 156. It recognized that, while appellant did not explicitly argue that exclusion of his family would abrogate his...