Peyronel v. State, 01–13–00198–CR.

446 S.W.3d 151

Bobby Joe PEYRONEL, Appellant

v.The STATE of Texas, Appellee.

No. 01–13–00198–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 21, 2014.

Discretionary Review Granted Dec. 17, 2014.

Frances Bourliot, Assistant Public Defender, Harris County, Houston, TX, for Appellant.

Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Harris County, Houston, TX, for State.

Panel consists of Chief Justice RADACK and Justices MASSENGALE and HUDDLE.

OPINION

REBECA HUDDLE, Justice.

Appellant Bobby Joe Peyronel was charged by indictment with aggravated sexual assault of a person younger than 14 years of age. A jury found Peyronel guilty and assessed punishment at 50 years in prison and a $10,000 fine. On appeal, Peyronel raises three issues: (1) the trial court violated his right to a public trial, (2) the judgment incorrectly reflects that he was convicted for aggravated sexual assault of a child under six years old, and (3) there was insufficient evidence to support the costs assessed in the judgment. We modify the judgment to correctly reflect the charged offense, affirm the judgment of conviction as modified, reverse the judgment as to punishment, and remand for a new punishment hearing.

Background

In 2009, Peyronel's wife was operating an in-home daycare. The complainant, who was three years old at the time, attended the daycare each day while her parents worked. The indictment alleged that Peyronel unlawfully, intentionally, and knowingly caused the sexual organ of the complainant, a person under 14 years of age, to contact Peyronel's mouth. A jury found Peyronel guilty.

The punishment phase of the trial began on the day that the jury returned its guilty verdict. The record reflects that the trial court recessed the jury to await the arrival of a witness. During the recess, the trial court learned that a woman who was “part of the defense” had approached one of the jurors and said, “How does it feel to convict an innocent man?” But the record does not reflect who notified the judge of the woman's conduct. The trial court stated on the record that it was going to find out who made the comment and hold that person in contempt, but the record does not reflect that the trial court made any investigation or other effort to determine who approached which juror. Instead, the record reflects that the trial court decided to respond by invoking the Rule. It stated: “Any witnesses that will testify in this punishment hearing, wait outside except for the one that is going to be testifying. Do not discuss the case amongst yourselves or with anybody else.”

The State then requested that female members of Peyronel's family be excluded from the courtroom, regardless of whether they were going to testify, because the State did not want any of the jurors to feel intimidated “while having to make a decision.” Peyronel's counsel responded: “[W]e'd respond to that by saying that's too broad to exclude Mr. Peyronel's wife and daughter to create the impression in the jury's mind that he has absolutely no support whatsoever here.” The State re-urged its request to exclude female members of Peyronel's family: “At this point, that support seems to have crossed the line into what I consider intimidation of a juror. And based on that, I certainly—I don't know who that family member was ... I certainly wouldn't want that person to be in the courtroom during testimony.”

The trial court said, “I agree. Nobody will stay in the courtroom while we proceed with this matter. Instruct your prospective witnesses to wait outside until such time as they can come in.” The court then clarified that he was referring to “both” witnesses and gallery members. The trial court did not specify whether it was excluding both males and females, nor did it specify whether it was excluding only members of Peyronel's family. After four witnesses testified for the State and counsel presented closing arguments, the jury deliberated and reached a verdict on sentencing that same day.

Public Trial

In his first issue, Peyronel contends that the trial court violated his statutory and constitutional right to a public trial because it excluded his friends and family from the courtroom during the punishment phase of the trial.

A. Standard of Review and Applicable Law

The Sixth Amendment guarantees the accused in all criminal prosecutions the right to a public trial. U.S. Const. amend. VI ; Herring v. New York, 422 U.S. 853, 856–57, 95 S.Ct. 2550, 2552, 45 L.Ed.2d 593 (1975) ; Lilly v. State, 365 S.W.3d 321, 328 (Tex.Crim.App.2012). The Fourteenth Amendment extends this fundamental right to defendants in state criminal prosecutions. U.S. Const. amend. XIV ; Herring, 422 U.S. at 857, 95 S.Ct. at 2553 ; In re Oliver, 333 U.S. 257, 266–67, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948). Trial courts must take every reasonable measure to accommodate public attendance at criminal trials, and a violation of a defendant's public-trial right is a structural error that does not require a showing of harm and warrants automatic reversal. Presley v. Georgia, 558 U.S. 209, 215, 130 S.Ct. 721, 725, 175 L.Ed.2d 675 (2010) ; Johnson v. United States, 520 U.S. 461, 468–69, 117 S.Ct. 1544, 1549–50, 137 L.Ed.2d 718 (1997) ; Lilly, 365 S.W.3d at 328 ; Steadman v. State, 360 S.W.3d 499, 510 (Tex.Crim.App.2012).

Nevertheless, “[t]he barring of some members of the public from the courtroom does not necessarily mean that an accused has been denied a public trial.” Andrade v. State, 246 S.W.3d 217, 225 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd) (citing Hernandez v. State, 914 S.W.2d 218, 221 (Tex.App.-El Paso 1996, pet. ref'd) ). This is because “[t]he right to a public trial is not absolute: It may be outweighed by other competing rights or interests, such as interests in security, preventing disclosure of nonpublic information, or ensuring that a defendant receives a fair trial.” Woods v. State, 383 S.W.3d 775, 779 (Tex.App.-Houston [14th Dist.] 2012, pet. ref'd) (citations omitted); see Hernandez v. State, 914 S.W.2d at 222 (“Reasonable limitations on public attendance may be imposed where they are necessary to protect a state interest that outweighs the defendant's right to public scrutiny.”) (citing Mosby v. State, 703 S.W.2d 714, 716 (Tex.App.-Corpus Christi 1985, no pet.) ). But if an accused is denied the presence of his friends, the trial court must articulate on the record some compelling reason for excluding them. Addy v. State, 849 S.W.2d 425, 429 (Tex.App.-Houston [1st Dist.] 1993, no writ). Whether the accused is denied a public trial is based on the particular circumstances of the case. Hernandez, 914 S.W.2d at 221 (citing Levine v. United States, 362 U.S. 610, 616–17, 80 S.Ct. 1038, 1042–43, 4 L.Ed.2d 989 (1960) ).

“We apply a bifurcated standard of review to the trial court's ruling on a [defendant's] public-trial claim, reviewing legal conclusions de novo and factual findings for an abuse of discretion.” See Woods, 383 S.W.3d at 779 (citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App.2002) ).

B. Analysis

1. Preservation of Error

The State argues that Peyronel failed to preserve this issue for appeal because he did not object that excluding his friends and family violated his right to a public trial but, rather, he only “responded” that it would be too broad to exclude his wife and daughter.

“Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial.” United States v. Hitt, 473 F.3d 146, 155 (5th Cir.2006) ; see also Pena v. State, 441 S.W.3d 635, 643 (Tex.App.-Houston [1st Dist.] 2014, no pet.) (appellant waived public trial complaint by “failing to object to the alleged closing of the trial to the public or otherwise raise the issue with the trial court”); McEntire v. State, 265 S.W.3d 721, 723 (Tex.App.-Texarkana 2008, no pet.) (defendant failed to preserve public-trial argument where his counsel stated that he had no objection to closing part of trial to public).

To preserve error for appeal, the complaining party must make “a timely request, objection, or motion” to the trial court. Tex.R.App. P. 33.1(a)(1). But, error preservation “is not an inflexible concept.” Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App.2013) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992) ). “[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Id.

Here, Peyronel 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. Although Peyronel did not explicitly argue that exclusion of his family would abrogate his right to a public trial, we conclude that his objection was sufficient to preserve error. See Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App.2012) (issue preserved if “there have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be”); Lankston, 827 S.W.2d at 909 (in issue-preservation context, there are “no technical considerations or form of words to be used”); see also State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App.2013) (although defendant's challenge “could have been more clearly presented,” “magic language” was not required).

2. Did the trial court violate Peyronel's right to a public trial?

When, as here, the record reflects that the trial court ordered that “nobody will stay in the courtroom while we proceed with this matter,” we regard the closure of the courtroom as a total closure. Accordingly, we apply the Waller test to determine whether the trial court erred in concluding that Peyronel's right to a public trial was outweighed by other...