COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00432-CR
RYAN HARRISON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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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