Order filed August 12, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00274-CR
__________
DIMAS GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 15-7565
ORDER
The jury convicted Dimas Gonzales 1 of murder and assessed his punishment
at confinement for a term of forty-five years in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ). As relevant to this order, Appellant asserts
1
We note that Appellant’s name as it appears in the indictment is Dimas Gonzales and that the name
as reflected in the judgment is Dimas Gonzalez.
in his seventeenth issue that the trial court denied his right to a public hearing—as
required by the Sixth and Fourteenth Amendments—at the evidentiary hearing on
his motion for new trial. Because we find that Appellant’s Sixth Amendment right
to a public trial was violated, we abate this appeal and remand the cause to the trial
court for a new evidentiary hearing on Appellant’s motion for new trial.
Procedural History
Appellant filed a motion for new trial alleging, among other things, that he
was deprived of the opportunity to put on a defense through the denial of expert
testimony that he sought to offer, that he was convicted by a nonunanimous jury,
and that the State withheld impeachment evidence for its witnesses. In connection
with the hearing on the motion for new trial, Appellant was incarcerated at the time;
therefore, his trial counsel filed a request for a bench warrant to procure his
attendance, which the trial court denied. Instead, the trial court notified the TDCJ
of Appellant’s hearing and requested that Appellant have accommodations to appear
by telephone. Appellant objected to the denial of the bench warrant in writing before
the hearing.
Appellant was not physically present at the hearing on Appellant’s motion for
new trial. The trial court placed Appellant on a speaker phone and directed
Appellant to “keep [his] voice up” if he asked a question or if Appellant had
“something that [he] need[ed] to talk to [counsel] about.” In his brief, Appellant
notes that no arrangements were made for him to communicate with his counsel in
a confidential manner.
When the hearing commenced, Appellant’s counsel immediately objected to
Appellant’s absence. Appellant’s counsel also objected on the grounds that the
hearing was closed to the public and held in a conference room rather than in open
court. The trial court summarily overruled Appellant’s objections. Neither the trial
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court nor the State made any comment on the record about whether the hearing was
closed to the public.
During the hearing, Appellant experienced a technical issue and his call
temporarily dropped. After the technical issue, and during some downtime while
switching between witnesses, Appellant’s counsel renewed the objections:
[DEFENSE COUNSEL]: Your Honor, in this open time, I will
just make a record of the fact that we are in a conference room, that
only the lawyers, the Court, the court reporter, and the witness under
inquiry has been present during these entire proceedings.
THE COURT: That’s correct, counsel. And for the record, the
Court allowed this Motion for New Trial to be heard rather than
allowing it to be overruled by operation of law.
In total, Appellant’s counsel called five witnesses at the hearing on the motion for
new trial, and he introduced photographic evidence of the crime scene. At the
conclusion of the hearing, the trial court denied Appellant’s motion for new trial.
Analysis
“The Sixth Amendment of the United States Constitution guarantees an
accused the right to a public trial in a criminal prosecution.” Lilly v. State, 365
S.W.3d 321, 328 (Tex. Crim. App. 2012) (citing U.S. CONST. amend. VI);
Steadman v. State, 360 S.W.3d 499, 504 (Tex. Crim. App. 2012) (same). 2 The right
to a public trial “is necessary to insure that jurors, prosecutors, and the court are kept
aware of their sense of responsibility and can properly carry out their functions.”
Cameron v. State, 490 S.W.3d 57, 61 (Tex. Crim. App. 2014) (citing Waller v.
Georgia, 467 U.S. 39, 46 (1984)). A violation of this right is a structural error that
does not require any showing of harm. Id.; Lilly, 365 S.W.3d at 328.
2
We note that both Lilly and Steadman were appeals to the Texas Court of Criminal Appeals from
this court.
3
“Trial courts are obligated to take every reasonable measure to accommodate
public attendance at criminal trials.” Dixon v. State, 595 S.W.3d 216, 224 (Tex.
Crim. App. 2020) (quoting Presley v. Georgia, 558 U.S. 209, 215 (2010)). “[A] trial
is public, in the constitutional sense, ‘when a courtroom has facilities for a
reasonable number of the public to observe the proceedings.’” Id. at 225 (quoting
Estes v. Texas, 381 U.S. 532, 539 (1965)).
The text of the Sixth Amendment refers to “trial.” However, courts have
noted that the right extends to various pretrial and posttrial proceedings. Steadman
noted that the right extends to voir dire proceedings. 360 S.W.3d at 504 (citing
Presley, 558 U.S. at 213). Lilly concerned a hearing to receive the defendant’s plea
bargain. 365 S.W.3d at 328. Waller involved a pretrial suppression hearing. 467
U.S. at 47.
The question before us is whether the right to a public trial extends to an
evidentiary hearing on a motion for new trial. This appears to be a matter of first
impression. In Steadman, the Texas Court of Criminal Appeals relied on the
Supreme Court’s analysis in Waller and Presley to determine whether the Sixth
Amendment right to a public trial extends beyond the actual proof offered at trial.
Steadman, 360 S.W.3d at 504. In Waller, the Court noted that “a suppression hearing
often resembles a bench trial: witnesses are sworn and testify, and of course counsel
argue their positions. The outcome frequently depends on a resolution of factual
matters.” Waller, 467 U.S. at 47. The Court also emphasized the need for an open
proceeding when a defendant challenges the conduct of state actors like police and
prosecutors. Id. In Presley, the Court relied on Waller to conclude that the right to
a public trial extends to voir dire proceedings. 558 U.S. at 723–24. Thus, in
determining when the right to a public trial is implicated in a non-trial proceeding,
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courts have often used the principles of adjudication to determine when the right
attaches.
The State contends that the right to a public trial does not extend to an
evidentiary hearing on a motion for new trial. To support its contention, the State
cites to Vera v. State, 836 S.W.2d 344, 348 (Tex. App.—Amarillo 1992, no pet.),
and asserts that a hearing on a motion for new trial is “fundamentally a part of the
post-trial review process, and not a part of the trial itself.” However, we find that
the State’s reliance on Vera is misplaced. Vera addressed an instance where the trial
court failed to timely set a hearing on a defendant’s motion for new trial—allowing
the motion to be erroneously overruled by operation of law. 836 S.W.2d at 348.
There, the court’s comment that a hearing on a motion for new trial is not “part of
the trial itself” was in support of the court’s remedy—an abatement—to correct an
error and allow proper presentment of the cause on appeal. Id. Stated simply,
because the error involved was a posttrial procedural error, Vera did not require a
remand for a new trial; instead, the error could be remedied with a remand to correct
a posttrial proceeding. Id.
We find the analysis in Waller to be persuasive. 467 U.S. at 47. An
evidentiary hearing on a motion for new trial is analogous to the cases cited above
that look to the importance of the accused’s right to a public trial and the policy
behind the presumption of an open court. “The purpose of a hearing on a motion for
new trial is to: (1) ‘decid[e] whether the cause shall be retried’ and (2) ‘prepare a
record for presenting issues on appeal in the event the motion is denied.’” Smith v.
State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009) (quoting State v. Gonzalez, 855
S.W.2d 692, 695 (Tex. Crim. App. 1993) (plurality opinion)). An evidentiary
hearing on a motion for new trial is a criminal defendant’s “only opportunity to
present to the trial court certain matters that may warrant a new trial, and to make a
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record on those matters for appellate review.” Trevino v. State, 565 S.W.2d 938,
940 (Tex. Crim. App. 1978) (discussing the right to counsel at a posttrial hearing).
The Thirteenth Court of Appeals recognized that a hearing on a motion for new trial
“justifies the full panoply of adversary safeguards; that is, counsel, confrontation,
cross-examination, and compulsory process for witnesses.” See Lopez v. State, 895
S.W.2d 392, 394 (Tex. App.—Corpus Christi 1994, no pet.) (citing Trevino, 565
S.W.2d at 940).
The evidentiary hearing on Appellant’s motion for new trial involved sworn
testimony of witnesses, arguments of counsel, and an allegation that “the State
withheld impeachment evidence on their witnesses.” These factors made the
proceeding like a trial, as was the case with the suppression hearing in Waller. See
467 U.S. at 47. Accordingly, we hold that the right to a public trial under the Sixth
Amendment attached to the evidentiary hearing on Appellant’s motion for new trial.
The next question we must consider is whether the evidentiary hearing on
Appellant’s motion for new trial was closed to the public. “This is a question to be
determined on a case-by-case basis in light of the totality of the evidence.”
Cameron, 490 S.W.3d at 62 (citing Lilly, 365 S.W.3d at 330). Appellant asserts that
his hearing was closed to the public because it was held in a conference room and
he had family members that were not allowed to attend. Conversely, the State
contends that “all [A]ppellant’s family had to do if they did wish to attend was to
communicate with [A]ppellant’s counsel.” The State also asserts that Appellant cites
to no evidence that members of the public were excluded from the conference room.
However, “the focus is not on whether the defendant can show that someone was
actually excluded. Rather, a reviewing court must look to the totality of the evidence
and determine whether the trial court fulfilled its obligation ‘to take every reasonable
6
measure to accommodate public attendance at criminal trials.’” Lilly, 365 S.W.3d
at 331 (quoting Presley, 558 U.S. at 215).
As noted in Cameron, “[i]t is well established that ‘this Court accepts as true
factual assertions made by counsel which are not disputed by opposing counsel.’”
490 S.W.3d at 62 (quoting Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim.
App. 2005)). Thus, we accept as true Appellant’s counsel’s statement that the
evidentiary hearing was closed to the public. See id. Furthermore, the trial court
acknowledged that the hearing was closed to the public by its comment to the effect
of “[t]hat’s correct, counsel.”
The next matter to consider is whether the trial court was justified in closing
the proceeding to the public. As noted by the Texas Court of Criminal Appeals in
Cameron, the Waller test is used to determine if the closure was constitutionally
justified under the Sixth Amendment. Id. “Under Waller, a closure will be justified
only if the trial court makes findings that closure is necessary to protect an overriding
interest and the closure is narrowly tailored to protect that interest.” Id. at 63 (citing
Waller, 467 U.S. at 45). “A court also must consider all reasonable alternatives to
closure.” Id. (citing Presley, 558 U.S. at 215; Steadman, 360 S.W.3d at 509). When
a criminal defendant’s trial is closed, “[(1)] the party seeking to close the hearing
must advance an overriding interest that is likely to be prejudiced, [(2)] the closure
must be no broader than necessary to protect that interest, [(3)] the trial court must
consider reasonable alternatives to closing the proceeding, and [(4)] it must make
findings adequate to support the closure.” Lilly, 365 S.W.3d at 329 (quoting Waller,
467 U.S. at 48) (alterations in original).
The reason offered by the trial court for closing the evidentiary hearing to the
public on Appellant’s motion for new trial did not justify the closure. The trial court
did not cite any overriding interest like security concerns or room-size limitations
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that would justify closure. See Cameron, 490 S.W.3d at 62–63. The trial court’s
decision to grant a request for an evidentiary hearing on a motion for new trial is a
matter of discretion. Smith, 286 S.W.3d at 339. We conclude that the discretionary
nature of this decision does not permit the trial court to dispense with the requirement
of a public trial if the trial court elects to grant a request for an evidentiary hearing
on a motion for new trial. We sustain Appellant’s seventeenth issue. The trial
court’s order denying Appellant’s motion for new trial is vacated, and the cause is
remanded for reconsideration of Appellant’s motion in accordance with this order.
Rule 44.4 of the Texas Rules of Appellate Procedure provides that a court of
appeals may direct a trial court to correct an error when the trial court’s error
prevents the proper presentation of a case on appeal. TEX. R. APP. P. 44.4 (a)–(b).
This rule allows the trial court to remedy an error without requiring a new trial if the
remedy will permit the appellate court to evaluate the appeal properly. LaPointe v.
State, 225 S.W.3d 513, 520–21 (Tex. Crim. App. 2007).
We have determined that Appellant was denied his right to a public hearing
on his motion for new trial. As was the case in Vera, the error occurred posttrial.
See Vera, 836 S.W.2d at 348. The scope of the error was limited to the hearing on
the motion for new trial, and it had no bearing on the prior stages of Appellant’s trial.
The appropriate remedy is to abate the appeal with instructions to the trial court to
hold an evidentiary hearing on Appellant’s motion for new trial that complies with
the public trial requirements of the Sixth Amendment. See Washington v. State, 394
S.W.3d 39, 44 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Vera, 836 S.W.2d at
348; see also McQuarrie v. State, 380 S.W.3d 145, 155 (Tex. Crim. App. 2012)
(remanding to the trial court for a new hearing on the motion for new trial when the
trial court committed errors at the first hearing).
8
We additionally note that Appellant asserts in his fifteenth and sixteenth issues
that the trial court erred by overruling his request to be physically present at the
evidentiary hearing on the motion for new trial. In light of our order remanding this
matter for a new hearing on the motion for new trial, we note that Appellant has a
statutory right under Article 33.03 to be “personally present” at the hearing. TEX.
CODE CRIM. PROC. ANN. art. 33.03 (West 2006); see Coons v. State, 758 S.W.2d
330, 339 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (“The defendant’s right
of attendance also includes a hearing on a motion for new trial.”); see also Gibson v.
State, 3 Tex. Ct. App. 437, 441–42 (1878). We disagree with the State’s contention
that an appearance or participation by phone constitutes being personally present
under Article 33.03. There is no authority for this proposition. Additionally, the
defendant’s physical presence at the hearing on the motion for new trial ensures that
the defendant can consult with counsel in a confidential manner and that his right to
confrontation is protected.
Therefore, we abate this appeal and order the trial court to hold a new hearing
on Appellant’s motion for new trial within forty-five days of the date of this order
in accordance with the public trial requirements of the Sixth Amendment and the
statutory requirement of Article 33.03 that Appellant be physically present at the
hearing. The trial court is further ordered to enter a written ruling on Appellant’s
motion for new trial within fifteen days of the hearing.
We further order (1) that the district clerk forward a supplemental clerk’s
record containing the trial court’s written ruling on Appellant’s motion for new trial
within thirty days after the trial court files its written order and (2) that the court
reporter for the 106th District Court create a supplemental reporter’s record
containing a transcript of the hearing and to file the supplemental reporter’s record
with this court within thirty days after the trial court files its written order.
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Upon the filing of the supplemental clerk’s record and the supplemental
reporter’s record with this court, the appeal will be reinstated. This court will issue
further orders and instructions to the parties as necessary upon the receipt of the
record from the new hearing on Appellant’s motion for new trial.
It is so ordered.
JOHN M. BAILEY
CHIEF JUSTICE
August 12, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
10