PD-1274-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/3/2015 3:16:48 PM
March 3, 2015 Accepted 3/3/2015 3:25:07 PM
PD-1274-14 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
BOBBY JOE PEYRONEL
Appellant
v.
THE STATE OF TEXAS
Appellee
On Petition for Discretionary Review from the First Court of Appeals
No. 01-13-00198-CR reversing the judgment in cause number 1254877
From the 174th Judicial District Court of Harris County, Texas
APPELLANT’S BRIEF ON DISCRETIONARY REVIEW
ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
FRANCES BOURLIOT
Assistant Public Defender
Harris County, Texas
Texas Bar No. 24062419
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 437-4317
frances.bourliot@pdo.hctx.net
Counsel for Appellant
ORAL ARGUMENT NOT PERMITTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Bobby Joe Peyronel
SPN # 02483175
701 N. San Jacinto St. 6A1 01L
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Mr. Richard Oliver
1221 Studewood Street
Houston, Texas 77008
Mr. Alan Cohen
2425 West Loop S., Suite 200
Houston, Texas 77027
DEFENSE COUNSEL ON APPEAL: Frances Bourliot
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
STATE COUNSEL AT TRIAL: Ms. Lisa Collins
Assistant District Attorney
Harris County, Texas
1201 Franklin
Houston, Texas 77002
STATE COUNSEL ON APPEAL: Eric Kugler
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
PRESIDING JUDGE: Hon. Ruben Guerrero
174th District Court
Harris County, Texas
1201 Franklin, 19th floor
Houston, Texas 77002
ii
Table of Contents
IDENTITY OF PARTIES AND COUNSEL ................................................................................... ii
TABLE OF CONTENTS............................................................................................................. iii
INDEX OF AUTHORITIES ........................................................................................................ iv
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUE PRESENTED ................................................................................................................... 2
RESPONSE TO THE STATE’S ISSUE: THE COURT OF APPEALS CORRECTLY
CONCLUDED THAT PEYRONEL’S OBJECTION TO THE EXCLUSION OF HIS
SUPPORTERS FROM THE COURTROOM WAS SUFFICIENT TO PRESERVE
ERROR.
STATEMENT OF FACTS............................................................................................................ 2
SUMMARY OF THE ARGUMENT .............................................................................................. 3
ARGUMENT .............................................................................................................................. 4
RESPONSE TO THE STATE’S ISSUE: THE COURT OF APPEALS CORRECTLY
CONCLUDED THAT PEYRONEL’S OBJECTION TO THE EXCLUSION OF HIS
SUPPORTERS FROM THE COURTROOM WAS SUFFICIENT TO PRESERVE
ERROR.
RELEVANT FACTS ........................................................................................................ 4
ERROR PRESERVATION IS NOT AN INFLEXIBLE,
HYPER-TECHNICAL CONCEPT ..................................................................................... 4
PRAYER .................................................................................................................................... 8
CERTIFICATE OF SERVICE ...................................................................................................... 9
CERTIFICATE OF COMPLIANCE ............................................................................................. 9
iii
INDEX OF AUTHORITIES
Cases
Addy v. State, 849 S.W.2d 425 (Tex. App.—Houston [1st Dist.] 1993, no pet.) ............. 6
Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) ...................................................... 5
Keeter v. State, 175 S.W.3d 756 (Tex. Crim. App. 2005) ...................................................... 5
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ................................................ 5
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009)........................................................ 5
Peyronel v. State, 446 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2014, pet. granted
Dec. 17, 2014) ............................................................................................................. 1, 3, 5
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) ................................................. 5
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) ................................................... 5
Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) ................................................... 5
Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L.Ed.2d 31 (1984) .......................... 3, 7
Rules
Tex. R. App. P. 33.1(a)(1) ...................................................................................................... 5
iv
STATEMENT OF THE CASE
Bobby Peyronel was convicted of aggravated sexual assault of a child younger
than 14 years of age on February 26, 2013 following a jury trial. (C.R. at 214). The
trial court assessed his punishment at fifty (50) years confinement in the Texas
Department of Criminal Justice – Institutional Division and a $10,000 fine. (R.R. at
246). Mr. Peyronel gave timely notice of appeal. (C.R. at 255).
In a unanimous published opinion 1 authored by Justice Huddle, the First Court
0F
of Appeals reversed and remanded the case for a new punishment hearing. 2 1F
Specifically, the Court of Appeals held that Peyronel’s objection was sufficient to
preserve alleged error and that the courtroom was improperly closed in violation to
his right to a public trial. This Court granted review on whether Peyronel’s claim that
his Constitutional right to a public trial was preserved for appeal.
1
Peyronel v. State, 446 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2014, pet. granted Dec.
17, 2014).
2 The Court of Appeals also modified the judgment to show that Mr. Peyronel was convicted
of aggravated sexual assault of a child under 14, not of a child under 6, and affirmed the
judgment as modified.
1
ISSUE PRESENTED
RESPONSE TO THE STATE’S ISSUE: THE COURT OF APPEALS
CORRECTLY CONCLUDED THAT PEYRONEL’S OBJECTION TO THE
EXCLUSION OF HIS SUPPORTERS FROM THE COURTROOM WAS
SUFFICIENT TO PRESERVE ERROR.
STATEMENT OF FACTS
On October 27, 2009, Jane’s 3 mother picked up her daughter from Marie
2F
Peyronel’s in-home daycare. (4 R.R. at 63). Jane had attended daycare at Marie’s house
from the time she was about six-weeks-old. (6 R.R. at 65). On October 27, 2009,
Marie Peyronel had a doctor’s appointment and, as was her custom, notified the
parents that either her adult daughter Amber or her husband Bobby Peyronel would
be taking care of the children. (6 R.R. at 63-64). That day, Bobby Peyronel was home
as he had just returned from his uncle’s funeral. (6 R.R. at 69). Marie let Amber know
that she was leaving for the doctor and Amber stated that she would be right over to
pick Jane up. (6 R.R. at 74, 103). Amber lived next door to Marie and had a son,
Evan, who often played with Jane. (6 R.R. at 97, 102). Just minutes after Marie’s
phone call, Amber walked next door and brought Jane back to her house. (6 R.R. at
103). Jane stayed at Amber’s house until Marie picked her up after her doctor’s
appointment. (6 R.R. at 76).
As she was driving Jane home, Jane told her mother that Bobby had “licked the
owie on her gina.” (4 R.R. at 63). When they arrived at their house, Jane’s mother
3This appellant will use the pseudonym “Jane” to protect the identity of the complaining
witness in this case.
2
discovered that Jane had wet her pants and she then took off her clothes and piled
them together to put in the laundry. (4 R.R. at 109).
After the jury’s guilty verdict, the court was notified that a female who was
present to support Bobby Peyronel had made a comment to the jury that they had just
convicted an innocent man. (9 R.R. at 7). After this comment, the rule was invoked. (9
R.R. at 8). The State asked that all females who were present to support Mr. Peyronel
be excluded from the courtroom. (9 R.R. at 9). The Defense objected to this exclusion
as overbroad. (9 R.R. at 9). The Court ordered all of Mr. Peyronel’s witnesses and
gallery members to leave for the remainder of the proceedings. (9 R.R. at 9-10).
SUMMARY OF THE ARGUMENT
The First Court of Appeals held that Peyronel’s objection clearly put the trial
court and opposing counsel on notice that he was complaining about the violation of
his Constitutional right to a public trial. Peyronel v. State, 446 S.W.3d 151, 156 (Tex.
App.—Houston [1st Dist.] 2014, pet. granted Dec. 17, 2014). The Court of Appeals,
balancing the four factors in Waller, further held that the trial court improperly
ordered a total closure of the courtroom. Waller v. Georgia, 467 U.S. 39, 104 S. Ct.
2210, 81 L.Ed.2d 31 (1984). Peyronel, 446 S.W.3d at 159.
3
ARGUMENT
RESPONSE TO THE STATE’S ISSUE: THE COURT OF APPEALS
CORRECTLY CONCLUDED THAT PEYRONEL’S OBJECTION TO THE
EXCLUSION OF HIS SUPPORTERS FROM THE COURTROOM WAS
SUFFICIENT TO PRESERVE ERROR.
Relevant Facts:
After the jury found Mr. Peyronel guilty, the trial court was informed that
someone approached one of the jury members and said “[h]ow does it feel to convict
an innocent man?” (9 R.R. at 7). The trial court first stated that he would find out
who had made the statement and hold her in contempt. (9 R.R. at 7). The trial court
then invoked the Rule, excluding all punishment witnesses from the courtroom. (9
R.R. at 8). The State asked that all female members of Peyronel’s family be excluded
from the courtroom so none of the jurors felt intimidated. (9 R.R. at 8-9). Peyronel’s
counsel responded that the exclusion was overly broad and would “create the
impression in the jury’s mind that he has absolutely no support whatsoever here.” (9
R.R. at 9). The trial judge then summarily excluded Peyronel’s witnesses and gallery
members, stating that “[n]obody will stay in the courtroom while we proceed with this
matter.” (9 R.R. at 9-10).
Error preservation is not an inflexible, hyper-technical concept
The Court of Appeals correctly concluded that Peyronel’s objection to his
supporters being excluded from the courtroom was preserved for appellate review.
To preserve error for appeal, Peyronel was required to make a “timely request,
4
objection, or motion” to the trial court; however, error preservation “is not an
inflexible concept” and does not require any “magic language.” See Tex. R. App. P.
33.1(a)(1); 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)); State v. Rosseau, 396
S.W.3d 550, 555 (Tex. Crim. App. 2013). An accused is required to clearly indicate to
the trial judge and to opposing counsel what he is complaining about. Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012), quoting Resendez v. State, 306 S.W.3d
308, 315–16 (Tex. Crim. App. 2009). No “hyper-technical or formalistic use of
words or phrases” is required to preserve error. Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009) (quoting Lankston, 827 S.W.2d at 909).
In determining whether a complaint has been preserved for appeal, the
ultimate consideration is whether the party has clearly made the trial court aware of
what he wants and why he is entitled to it at a time when the trial court is in a
position to do something about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim.
App. 2005). The Court of Appeals found that the trial court was alerted as to the
specific ground that would be raised on appeal. Peyronel, 446 S.W.3d at 156, quoting
Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App.2013), Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App.1992). Peyronel was clear that the exclusion of his
supporters would create a negative impression in the jury’s eyes—defense counsel
stated that the exclusion would “create the impression in the jury’s mind that he has
absolutely no support whatsoever here.” (9 R.R. at 9).
5
The State contends that Peyronel’s objection did not alert the trial court to his
specific complaint and was “couched in terms of visible family support for the
appellant rather than the benefits of the public’s observation of official proceedings.”
(State’s Brief at 7-8). However, one of the fundamental reasons that an accused is
entitled to a public trial is that excluding his supporters would have a “chilling effect
on the defense and an adverse affect on the jury's perception of appellant's character.”
Addy v. State, 849 S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
The presence of an accused's friends in the courtroom lends moral
support to the accused and helps insure honest proceedings. If an
accused is denied the presence of his friends, he is denied a public trial,
unless the trial court can 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 pet.).
The judge and opposing counsel understood that Peyronel was complaining
about the exclusion of his supporters from the punishment phase of his trial—the
State argued for the exclusion, stating that “it is pretty clear throughout the trial that
there is support” for Peyronel. (9 R.R. at 9). The trial judge agreed with the State,
mandating that “[n]obody will stay in the courtroom while we proceed with this
matter.” (9 R.R. at 9-10).
Peyronel was not required to use any “magic language”—he was required to
clearly indicate his argument to the judge and to opposing counsel. The State and the
trial judge understood Peyronel’s objection to the total closure of the courtroom.
Thus, the Court of Appeals correctly concluded that Peyronel had sufficiently
6
preserved this issue for appellate review. Finally, in order to justify the closure of the
courtroom to Peyronel’s supporters, the trial court was required to make weigh the
four Waller factors; and in failing to do so, the trial court improperly ordered a total
closure of the courtroom and violated Peyronel’s right to a public trial. Waller v.
Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215, 81 L.Ed.2d 31 (1984).
7
PRAYER
Mr. Peyronel respectfully asks this Honorable Court to affirm the opinion of
the Court of Appeals and remand the case to the trial court for further proceedings.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/Frances Bourliot
_______________________
Frances Bourliot
Assistant Public Defender
Harris County Texas
TBN 24062419
1201 Franklin, 13th floor
Houston Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
8
Certificate of Service
This is to certify that a copy of the foregoing Appellant’s Brief on
Discretionary Review has been served on the District Attorney of Harris County,
Texas, by e-file on the 3rd day of March, 2015. A copy has also been sent by e-file to
the State Prosecuting Attorney, also on the 3rd day of March, 2015.
/s/Frances Bourliot
_______________________
Frances Bourliot
Certificate of Compliance
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. This brief contains 2,318 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/Frances Bourliot
_______________________
Frances Bourliot
9