PD-1427-13
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/19/2015 4:51:26 PM
LAW OFFICES Accepted 3/20/2015 8:02:52 AM
GOLDSTEIN, GOLDSTElN AND HILLEY ABEL ACOSTA
310 S. ST. MARY'S STREET, SUITE 2900 CLERK
SAN ANTONIO, TEXAS 78205-3117
ELl GOLDSTEIN AREA CODE 210
<1910·1998) TELEPHONE 226-1463
GERALD H. GOLDSTEIN
LICENSED IN TEXAS AND COLORADO AREA CODE 2 I 0
VAN G. HILLEY FACSIMILE 226-8367
CYNTHIA HUJAR ORR
DoNALD H. FLANARY, Ill
March 19, 2015
Texas Court of Criminal Appeals March 25, 2015
201 W. 14th St.
Austin, Texas 78701
RE: Vanessa Cameron vs. The State of Texas, PD-1427-13, in the
Court of Criminal Appeals of Texas.
[State of Texas vs. Vanessa Cameron, Cause No. 2010-CR-
4286C in the 379th Judicial District Court, Bexar County, San
Antonio, Texas.]
To The Honorable Judges of the Court of Criminal Appeals:
POST-SUBMISSION LETTER/MEMORANDUM
[RECORD CITATIONS, CORRECTION, AND AUTHORITY]
The following record citations, correction and authority:
SUGGESTED ALTERNATIVE
As to Judge Richardson's question regarding opening the Courtroom
doors and allowing the public to observe from the hallway, Counsel would call
the Court's attention toRR Vol. 2 at 8-9, and Findings of Fact 4, at CR 294.
The record reflects that the only suggestion positive by the trial to remedy
the lack of space for any member of the public or family to view voir dire was
the following colloquy [relevant record page 7 and 8 attached] 1:
THE COURT: ... If you want to open up those doors and
have them all stand in that little hallway there
so they can observe the whole thing?
1 Said colloquy immediately follows the Court's rejection ofDefense Counsel's to
place family members behind counsel table in front of he trial court as a security risk.
- 1-
MR. ESPARZA: I JUST WANTED AN ALTERNATIVE, JUDGE.
MR. ESPARZA: If you want to open those doors and put chairs and
have people- have the public sit there, that's fme with
me.
THE COURT: We don't have enough chairs. Are we going to- if
you want, we can open up those doors in the back and
have them stand to where they can observe and hear
every single thing that's going on.
MS. ISHY: And, Your Honor, just for the record, I think that's
going to be in violation of any fire codes in this city.
THE COURT: I mean, we're having issues ....
MR. ESPARZA: But there's no ruling from the Court on my
objections?
THE COURT: Your objection is that people have been excluded
from the Court.
MR. ESPARZA: Yes, sir.
THE COURT: The Court has never ruled that way, so I'm not sure
that it is that you're objecting to.
MR. ESPARZA: The absence ofthe public from jury selection ...
THE COURT: Every single chair that is made available for anybody
is currently put within the jury venirepanel area to
accommodate every single member of the venirepanel.
I know that there are certain areas that we cannot
place members of the family. I know that simple
because ofthefire code issues ... RR Vol. 2 at 7-9.
(emphasis supplied)
As for the trial court's Findings of Fact, the Court does state: "The Court
offered to open the doors in the back of the Court and let the public observe
from the hall area." Findings of Fact at CR 294.
Interestingly, the Court omits any mention of the State's objection that
same would violate the fire code or the Trial Court's on record recognition of
these "areas that we cannot place members of the family . . . because of fire
-2-
code issues." See RR Vol. 2 at 8 & 9?
OFF THE RECORD SUGGESTION
With respect to Judge Hervey's questions regarding off the record
discussions, as well as Counsel's expressed concerns regarding Rule 605's
provisions prohibiting a judge from becoming a witness, the Counsel would
note that the Court inexplicably states in his Finding of Fact that "Suggestions
were offered to the Attorney for the Defense regarding placement of observers,
both on and off the record." See CR at 294, paragraph 6.
A careful review of the entire record reveals that the only on record
suggestion made by the court was the use of the foyer hallway objected to by
the State and recognized by the Court as violating City fire codes.
As for any unspecified and unidentified off the record suggestions, such
would hardly qualify as the fact specific alternatives and explanations required
by the United States Supreme Court in Presley, and this Court in Steadman and
Lilly. See Presley v. Georgia, 558 U.S. 209, 215 (2010) ("The trial court erred
because it did not even identify any overriding interest likely to be prejudiced
absent the closure of voir dire. "); Waller v. Georgia, 467 U.S. 39, 44 (1984)
("The interest is to be articulated along with fmdings specific enough that a
reviewing court can determine whether the closure order was properly
entered."); Lilly v. State, 365 S.W.3d 321, 329 (Tex. Crim. App. 2012) ("The
fmdings must be on the record and specific.... " (citing Steadman v. State, 360
S.W.3d 499, 505 (Tex. Crim. App. 2012))).
As Judge Keasler remarked during oral argument, the record will reflect
what it will reflect. Here, the record establishes that spectators were removed
from the courtroom and that the defense objected to the same repeatedly. Such
off the record "suggestions" do not meet the stringent requirements of fact
specific findings required by Presley, 588 U.S. at 215 and Lilly, 365 S.W.3d at
329.
STRUCTURAL ERROR
As to Judges Keasler and Meyers' questions regarding the appropriate
standard applied to a Sixth Amendment open courtroom violation, Counsel
would call this Court's attention to Lilly v. State, where this Court noted that
2 With respect to the State's argument that the Trial Court was somehow misled into
believing defense counsel had waived his seven separate objections by statements such as
"okay" or "thank you Judge", Counsel would call the Court's attention to the Court's finding
No.2 that "[t]he defense attorney in this case was more inclined to obtain a ruling from the
Court and seemed less inclined to accept any solutions offered by the Court." See: CR 294,
Paragraph 2.
-3-
"the violation of a criminal defendant's right to a public trial is structural error
that does not require a showing of harm." Lilly, 365 S.W.3d at 328 (citing
Johnson v. United States, 520 U.S. 461, 468- 69 (1997)); See also Steadman v.
State, 360 S.W.3d 499, 510- 11 & fn. 41(Tex. Crim. App. 2012) (listing many
state and federal cases fmding it to be structural error).
Respectfully submitted,
Is/ Gerald H. Goldstein
Gerald H. Goldstein
State Bar No. 08101000
ggandh@aol.com
Donald H. Flanary
State Bar No. 24045877
Goldstein, Goldstein & Hilley
310 S. St. Mary's Street, 29th Floor
San Antonio, Texas 78205
210-226-1463
210-226-8367 fax
John Hunter
State Bar No. 24077532
310 S. St. Mary's Street, Ste. 1840
San Antonio, Texas 78205
210-399-8669
210-568-4927 fax
Attorneys for Appellant,
Vanessa Cameron
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above foregoing Appellant's Post-
Submission Brief has been delivered to ADA Jay Brandon, at
jay.brandon@bexar.org, as a registered participant of the EfileTexas.gov, on
this the 191hday ofMarch, 2015.
By: __ls/Gerald H. Goldstein._ _ _ __
Gerald H. Goldstein
-4-
7
1 and put them right here in front of the bench, Judge.
2 We can find places to put them.
3 THE COURT: Okay. We have attorneys that
4 are seated at both sides. We have security issues.
5 That is unreasonable. Where would we put them? Are we
6 going to have them stand here next to the -- next to me?
7 That -- I think that would be considered a security
8 risk. You want to open up those doors and have them all
9 stand in that little hallway there so they can observe
10 the whole thing? Maybe we could do that. Would that
11 satisfy you?
12 MR. ESPARZA: I just wanted an
13 alternative, Judge.
14 THE COURT: I'm giving you alternatives.
15 Which one would satisfy you in a way that the bailiffs
16 would feel that their job in keeping the courtroom safe
17 and secure would be satisfied?
18 MR. ESPARZA: I can't suggest that. If
19 you want to open those doors and put chairs and have
20 people -- have the public sit there, that's fine with
21 me.
22 THE COURT: We don't have enough chairs.
23 Are we going to -- if you want, we can open up those
24 doors in the back and have them stand to where they can
25 observe and hear every single thing that's going on.
8
1 MS. ISCHY: And, Your Honor, just for the
2 record, I think that's going to be in violation of any
3 fire codes in this city.
4 THE COURT: And that -- I mean, we're
5 having issues. Counsel obviously wants her entire
6 family here. I mean, I don't know what else we could
7 do. The courtroom's going to be absolutely stuffed with
8 venirepanel members. I don't know what we're going to
9 do.
10 MR. ESPARZA: But there's no ruling from
11 the Court on my objection?
12 THE COURT: Your objection is that people
13 have been excluded from the Court.
14 MR. ESPARZA: Yes, sir.
15 THE COURT: The Court has never ruled
16 that way, so I'm not sure what it is that you're
17 objecting to.
18 MR. ESPARZA: The absence of the public
19 from jury selection.
20 THE COURT: I'm not sure what -- I have
21 not in any way ruled --
22 MR. ESPARZA: No, sir. No, sir. I'm
23 saying, prior to you taking the bench and calling the
24 case for court --
25 THE COURT: Yes.
9
1 MR. ESPARZA: -- the bailiff excluded all
2 of the public from this courtroom for jury selection.
3 I'm just --
4 THE COURT: Okay. I'm -- and, again, now
5 you're bringing it up to the Court on the record.
6 MR. ESPARZA: Yes, sir.
7 THE COURT: I'm telling you that the
8 Court has never ruled that the public is excluded from
9 jury selection.
10 MR. ESPARZA: Yes, sir.
11 THE COURT: I'm well aware of the rights
12 this individual defendant has to have an open court
13 proceeding which excludes voir dire; however, I'm
14 looking around this court and I'm telling you, I don't
15 see where we could put them.
16 MR. ESPARZA: Yes, sir.
17 THE COURT: Every single chair that is
18 made available for anybody is currently put within the
19 jury venirepanel area to accommodate every single member
20 of the venirepanel. I know that there are certain areas
21 that we cannot place members of the family. I know that
22 simply because of fire code issues, of police detection
23 issues. I recognize that. I don't see any available
24 chairs as I'm looking around the courtroom where anybody
25 could sit. I just don't know how we could accommodate.