Opinion
No. 04-16-00514-CR
05-17-2017
Juan Francisco DE LUNA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2015CRN001102 D1
Honorable José A. Lopez, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
Appellant Juan Francisco De Luna entered a plea to one count of murder in Webb County, Texas, and proceeded to trial before a jury on the issue of punishment on July 11, 2016. The jury assessed punishment at a term of life in the Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine.
On appeal, De Luna contends the trial court violated his Sixth Amendment right to a public trial by excluding his family members from the courtroom during part of voir dire. Because De Luna failed to preserve his complaint for appellate review, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
De Luna entered a plea of guilty and elected sentencing by a jury. The punishment phase of De Luna's case was called for trial on July 11, 2016. The State invoked the rule of sequestration and the trial court administered the oath to the witnesses for the State and the defense. The trial court addressed a few outstanding pretrial matters and the venire was ushered into the courtroom. After the trial court explained the voir dire process and several procedural issues to the venire, the State began its general voir dire.
During the State's questioning, and before the defense began its voir dire, defense counsel approached the bench after seeing two witnesses enter the courtroom—possibly in violation of the rule. At the bench, in the discussion about who should be in the courtroom, the prosecutor remarked that he had seen some of De Luna's family members in the courtroom and he "want[ed] to make sure that they were able to be in [the courtroom] during the voir dire." Defense counsel countered that the witnesses had been "placed under the rule." Neither of the two witnesses that defense counsel observed were the family members previously sworn by the trial court. The prosecutor explained, "I don't know who all of [the family members] were. And the bailiff asked them to step out when the panel was coming in. Obviously, if they're not under the rule, they could come back in once they sat them and all that. And that was a concern."
The trial court inquired of the bailiff whether anyone had been excluded from the courtroom.
Trial Court: My question, did you exclude somebody from coming into the courtroom—the public, or anybody related to anybody—
Bailiff: Just defendant's family
Trial Court: The what—
Bailiff: The defendant family.
Trial Court: You exclude—
Bailiff: The defendant's family.
Trial Court: —you excluded them?
Bailiff: Yeah.
Trial Court: Are they in here now?
Bailiff: Yes.
Trial Court: Okay. All right. I'm not sure where you got the instructions to exclude them, but they definitely weren't from the Court. Have we—have we ironed that out now?
Bailiff: Yes.
Trial Court: Okay. The only ones that are excluded from entering the courtroom are people who are witnesses who—who have been placed under the rule.
On appeal, De Luna contends that his family members' exclusion from the courtroom during the voir dire process violated his Sixth Amendment right to a public trial and was fundamental error.
SIXTH AMENDMENT VIOLATION
Under the Sixth Amendment, an accused holds a fundamental right to a public trial. See U.S. CONST. amends. VI, XIV; Presley v. Georgia, 558 U.S. 209, 212 (2010) (per curiam) (reiterating that the Sixth Amendment right to a public trial applies to the states via the Due Process Clause of the Fourteenth Amendment); Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012). "The public trial right extends not only to the guilt-innocence phase of trial, but to voir dire as well." In re A.J.S., 442 S.W.3d 562, 566-67 (Tex. App.—El Paso 2014, no pet.) (citing Waller v. Georgia, 467 U.S. 39, 44-45 (1984)); see also Garcia v. State, 401 S.W.3d 300, 303 (Tex. App.—San Antonio 2013, pet. ref'd). "Although the violation of the right to a public trial is structural error . . . , a complaint that the right to a public trial was violated is nevertheless subject to procedural error preservation rules." Turner v. State, 413 S.W.3d 442, 447 (Tex. App.—Fort Worth 2012, no pet.) (internal citation omitted) (citing Levine v. United States, 362 U.S. 610, 618-19 (1960)); accord Peña v. State, 441 S.W.3d 635, 643 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
To preserve a complaint for appellate review, the defendant must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); Turner, 413 S.W.3d at 447. The objection must be sufficiently clear to provide the trial court and opposing counsel with an opportunity to address and, if necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The objection must be "a timely, specific request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).
Rule 33.1(a)'s first prong requires trial counsel to object to the alleged error and provide the trial court an opportunity to correct the error. Peña, 441 S.W.3d at 643 (citing TEX. R. APP. P. 33.1(a)). After defense counsel questioned the trial court about the two witnesses in the courtroom, the State raised its concern about the absence of some of De Luna's family members. The trial court questioned the bailiff and then ensured that, from that point forward, no one other than rule-excluded witnesses would be prevented from attending voir dire. But if some of De Luna's family members had already been excluded from some portion of voir dire, it was De Luna's burden to object to the alleged error; he did not. But see TEX. R. APP. P. 33.1(a); Peña, 441 S.W.3d at 643.
Rule 33.1(a)'s second prong requires a party to pursue his objection in the trial court until he obtains an adverse ruling. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Zambrano v. State, 431 S.W.3d 162, 172-73 (Tex. App.—San Antonio 2014, no pet.). Assuming without deciding that there was some basis to conclude De Luna met the first prong, he did not meet the second; he did not pursue an objection until he obtained an adverse ruling or the trial court refused to rule on the objection, contra TEX. R. APP. P. 33.1(a); Geuder, 115 S.W.3d at 13.
In his brief, De Luna argues that because the "violation of the right to a public trial is fundamental error," he did not have to object to preserve his complaint for appellate review. To support his assertion, he cites only one case: Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012). But Clark does not support De Luna's argument.
In Clark, the relevant question was not whether Clark needed to object to preserve a complaint for appellate review; it was about the scope of Clark's objections. The "defense repeatedly objected to an 'onslaught of inappropriate and unconstitutional tactics of the prosecution.'" Id. at 337. But because "[Clark] never made a due-process objection or indicated that the cross-examination deprived him of his right to a fair trial," Clark forfeited his putative constitutional complaint. Id. at 340. Clark does not apply.
Here, De Luna failed to take the steps necessary to preserve his complaint for appellate review. See TEX. R. APP. P. 33.1(a); Turner, 413 S.W.3d at 447 (recognizing that "a complaint that the right to a public trial was violated is nevertheless subject to procedural error preservation rules"); Peña, 441 S.W.3d at 643 ("By failing to object to the alleged closing of the trial to the public or otherwise raise the issue with the trial court, [the defendant] waived his Sixth Amendment argument.").
CONCLUSION
On appeal, De Luna argues that his Sixth Amendment right to a public trial was violated because some members of his family were excluded from a portion of voir dire. Because De Luna failed to timely object, state the specific grounds for his objection, and obtain a ruling from the trial court, De Luna failed to preserve his complaint for appellate review. Therefore, we affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH