## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

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T H O M A S D I X O N , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

L U B B O C K C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n f o r a u n a n i m o u s C o u r t . H E R V E Y , J . , f i l e d a c o n c u r r i n g o p i n i o n i n w h i c h K E A S L E R a n d N E W E L L , J J . , j o i n e d . The Court of Appea ls reve rsed Appellant’s conviction for two reas o n s : (1) beca use cell phone loca tion information was improper ly admitted, and (2) beca use the trial c ourt deprive d him of a public trial. Neither of these rea sons appea rs to stand up to close scrutiny

. I n this murder- forhire prosec ution, Appellant’s wher eabouts on a date other than the date of the murder wer e not particula rly important to the case , so any err or in admitting the e vidence was harmless. As for the public trial complaints, two wer e not prese rved and the other has no merit. Consequently , we reve rse the judg ment of the c ourt of appe als.DIXON — 2 I. Cell-Site Locat ion In form ation (CSLI)

A. The Investigation Appellant, Thomas Dix on, was a plastic su rgeon in Amarillo. J oseph Sonnier was a phy sician in L

ubbock. David Shepherd was a friend of Dix on’s. On J uly 10, 2012, David Shepard killed J oseph Sonnier. The State’s theory was that Dixon hired Shepard to kill Sonnier. The State introduced evidenc e that Sonnier was dating Di x o n ’s former g irlfriend and that Dix on wanted he r bac k. Shepard’ s roommate testified that Shepa rd told him that Dix on paid him
to kill Sonnier. The State also introduced fifty -five pag es of ce l l phone rec ords that showed numerous phone calls and text messag es between Dix on and Shepar d in the m onths leading up to the murder and on the day of the murder. These rec ords also included cell-site location information. Fifty -one of those pag es wer e from Shepard’ s ce l l p h o n e p ro v i d er . The a dmissibi lity of Shepard’ s phone rec ords i s not in dispute. Fr om these rec ords, the State showed that Dix on and Shepard ex chang ed hun d re d s o f t ex t messag es i n the m onths leading up to the m urder and that at least some of the messages we re ab o u t the victim. The day befor e the murder, Shepard text ed, “Perf ect day to trave l to hub city ” and Dix on responde d, “Ne ed it done ASA P

. ” They exchang ed forty -one text messag es on the day of the murder. CSL I from Shepard’ s cell phone showed Shepard in L ubbock d u ri n g t i mes when he was communicating with Dix on. I t also showed that Shepherd was in L ubbock on Mar ch 12, 2012.
CSL I from Dix on’s phone showed that he was in L ubbock on Marc h 12, 2012. But the State did not obtain a war

rant for the CSL I for Dix on’s phone. Dix on had claimed to the police that he 1

The State did obta in a court orde r for the re cords, a s require d by statute. See T E X
. C O D E 1 C R I M
. P R O C . art. 18.21.DIXON — 3

was not in L ubbock on Marc h 12, but at t rial, he conce ded that he mus t have travele d to L ubbock beca use the cell phone rec ords showed him there

. Also, a g as-station rec eipt showed that Dix on had boug ht ga soline in Pl ainview on Ma rch 12. Although Dix on had orig inally told th e p o l i ce that he knew nothing about Sonnier, he admitted at trial that this was untrue. Dix on testified that he had hired Shepard t o t ra ck and photogr aph S onnier (hoping to obt ain photos that would cause Dix on’s former girlfrie nd to brea k
up with Sonnier) and that he understood that Shepard would be planting a came ra at Sonnier’s house for this purpose. Also, Shepard’ s phone rec ords reve aled that Dix on called Shepard within minutes afte r the police finished spea king to Dixon. B. App eal Dix on claimed on appea l that the trial court e rre d in failing to suppress CSL I from his ce ll phone rec ords. Rely ing on the Supreme Court’s rec ent decision in Carpenter v. United States , the 2

court of appea ls a g ree d. The court of appea ls further held that it c ould not conclude that the err or 3
was ha rmless bey ond a re asonable doubt. 4
I n support of its conclusion on harm, the court of appea ls observe d that the CSL I serve d two purposes: (1) as circumstantial evidenc e of Dix on’s compli cit y in the m urder (by showing that he and Shepard worke d closely toge ther) and (2) to impeach Dix on’s testimony

. The court of appea ls 5
conclude d that, “abse nt the CSL I , t here was no evidenc e appellant ever was in L ubbock with

135 S. Ct . 2206 (2018). 2 Dixon v. State , 566 S.W .3d 348, 363-64 (Te x . App.–Amar illo 2018). 3 Id. at 370-71. See also T E X
. R. A P P
. P. 44.2(a). 4
Dixon , 566 S.W .3d at 365-66. 5DIXON — 4

Shepard for any purpose.” Although Dix on had purcha sed g as in Plainview on Marc h 12, the court 6
of appea ls conclude d that that evidenc e said nothing about Dix on’s contac t with Shepard. The court 7
of appea ls further conclude d that the CSL I evidenc e was in a form likely to have a strong impact on jurors. And t he court of appeals concluded t hat t he C SL I formed a main pillar of support for the

8
State’s trial ar gu m en t that Dix on could not be believed. The court of appea ls conclude d that 9
Dix on’s cre dibilit y was important beca use the jury had to decide what his pur pose was in w orking with Shepard—w hether it was to kill the victim or fo r t he alterna tive purpose offe red in Dix on’s testimony (to trac k the victim to dig up dama g ing inf ormation to share with the g irlfriend)

. 1 0 C. Analysis: Any Error Was Harm less
We conclude that the court of appea ls err ed in its harm analy sis; eve n as s u m i ng the admission of the evidenc e was err or, it was clea rly harmless. The CSL I evidenc e showed that Dix on

was in L ubbock on Marc h 12, 2012, but that was not the day that the victim was killed. The victim

was killed months later, on J uly 10. Be cause this was a murder- for- hire case , the evidenc e did not have to show that Dix o n wa s i n L ubbock at all, much less on a particula r day

. And in fac t, the evidenc e showed that Dix on was not in L ubbock on the day of the murder. His prese nce in L ubbock

on some other day months befor e, even coupled with Shepard’ s prese nce and their conver sation, was not particular ly

important to this prosecution.

Id. at 367 (e mphasis in origina l). 6 Id. at 366. 7 Id. at 367. 8 Id. at 368. 9 Id. at 367-68. 1 0DIXON — 5

Moreove r, Dix on’s own theory of the case was that he hired Shepard to trac k and photogr aph the victim. Dix on’s prese nce in L ubbock to confe r with Shepard would be entirely consistent with that purpose.
Fur ther, of the fifty -five pag es of cell phone rec ords introduced by the State, only four pag es

wer e from Dix on’s cell-phone provider. The other fifty -one pag es wer e rec ords from Shepard’ s cellphone provider, the admission of which is not challeng ed here

. Shepard’ s phone rec ords provided plenty of evidenc e that Dix on and Shepard wer e working toge ther. The Marc h 12 CSL I information was not par

ticularly signific ant in light of the evidenc e fr om Shepard’s phone

. As for the State’s us e of the C SL I to impeach Dix on’s credibility , Dix o n ’s credibilit y was also impeache d by the evide n ce that he bought gas in Plainview on Marc h 12. The shortest route from Amarillo to L

ubbock g oes straig ht thr oug h Plainview, so this evidence sug g ested that Dix on

was trave ling betwee n Amarillo and L ubbock on Marc h 12. The State showe d that Shepard was 1 1
in L ubbock on that date by means of the location information from his phone rec ords. This proper ly admitted evidenc e, which sug g ested that both men wer e in L u b bock on the same day , was a signific ant basis for t h e j ury to disbelieve Dix on’s testimony that he was not with Shepard in
L ubbock. The CSL I from Dix on’s phone p ro v i d ed a more specific link betwee n Dix on and Shepard’ s locations, g iving the jury an incre mentally g rea ter reason to doubt Dix on’s testimony

Dix on’s conce ssion at trial that he must have trave led to L ubbock beca use the cell phone 1 1 rec ords showed him there also impeache d his cre dibilit y . Although this conce ssion was in response to i l l egally obtained evidenc e, the Four th Amendment does not require the exclusion of evidenc e used to impeach false testimony by the defe ndant. See Duck worth v. Egan , 492 U.S. 195, 208 (1989) (citing W alder v. United States , 347 U.S. 62, 65 (1954) (“e x clusionary rule does not cre ate ‘a shield ag ains t contra diction of [ the defendant’s] untruths’ and evidence seized in violation of t he Fourth A me n dment may be used for impeachme nt purposes” ) (bra ckete d materia l in Egan )). There is a g oo d arg ument, there fore , that the conc ession was not illeg ally obtained.DIXON — 6

about whether he was with Shepard that day , but it was not conclusive—the location data could not rule out the possibility

that the two just happene d to be in the same g ener al ar ea. Moreove r, there was other evidenc e that seriously

undermined D ix on’s cr edibility . Dix on admitted at trial that he had lied in a n interview w ith the L ubbock Police. And one of his lies was
centr al to the prosec ution: Dix on said that he knew nothing about Sonnier. I n fact , t houg h, he testified at trial that he had hire d Shepard to tra ck Sonnier. And Shepa rd’s phone rec ords showed that Dix on called Shepa

rd within minutes of the end of the police intervie w. I n summary , Dix on’s wher eabouts o n Marc h 12, and any dece ption about those wher eabouts,

wer e not a sig nificant pillar of the State’s ca se. F ar more important were Dix on’s admitted hiring of Shepard to trac k the victim, the numerous phone contac ts betwee n the two, Dix on’s hiding of this

arr ang ement fr om the police, his la ter phone call to Shepa rd within minutes af

ter c ontact with law enfor ceme nt, and Shepard’ s admission to his roommate that Dix on had hired him to kill the victim. The a dmission of the March 12 loc ation evidenc e wa s harmless bey ond a re asonable doubt.
II. P ubl ic Trial
A. Trial P roce edings: Exclu sion of Som e P ersons from Courtr oom 1. Sketch Artist First, during jury selec tion, the bailiffs exclud ed a s k et ch artist from the courtroom. The bailiffs told the sketch artist that there was no room for him. When the trial court beca me awa re of this, it allowed the sketch artist to sit in the jury box

. The n ex t d ay , Dix on complained about the exclusion. One of his attorney s claimed that the sketch artis t “w as s i t t i ng out in the hallway the entire time y esterda

y .” The rec ord does not re veal whe n counsel be came awa re of the situation.DIXON — 7 2. Hearing Outsid e Jury’s P rese nce Second, the trial judge asked for the courtroom to be clea red of specta tors afte r an arg ument erupte d betwee n the attorney s afte r the jury was rele ased for the day

. Be fore the jury was rele ased, defe nse attorne y

Sellers aske d a witness on cr oss-examination, “Here in this courtroom y ou know that David Shepard has repe atedly said, ‘Mike Dix on did not pay me for this murder.’ ” Prosecutor
J ackson, who had que s ti o n e d th e witness on direc t examination, interjec ted, “Your Honor, may I take this witness on voir dire? ” The trial court responde d, “The Court is g oing to instruct the two of y ou
not to talk about the question that was just asked.” Def ense attorney Hurley then stated, “I ’m g oing
to object that that violates our rig hts under the 5 Amendment to the United States Constit ution and t h
105 of the Code of Criminal Procedur e.” Def ense attorney Sellers then asked, “You’ re awa re that as recently as t wo we ek s ago David S hepar d told Matt Powell [one of t he prosecutors]–” but was interrupted by prosec utor Stanek, who objected to hear say . The trial court sustained the objection, and Sellers passed the witness. Prosecutor Powell the n said, “Judge, now it’s out there we need to
g o into it now. I mean, Counsel – may we approa ch? ” At this point the trial judge rele ased the jury for the da y . After the jury was rele ased, the parties’ attorney s beg an to arg ue with eac h other, as follows:
PROS ECUTOR POWEL L : I g uess I need to do a Mot i o n in L imine on ever y thing when I rely on Counsel to fo l l ow Rules of Evidence

. I obviously know I can’ t do that , b eca use he purposef

ully put that – he knows that’s an improper question. He knows he cannot g et into that information, that it’s hear say without an exception, and he knows that. I f he doe sn’t then he ne eds to g o back a nd g et a r efr esher

course . THE TRI AL

COURT: W ell, both of y ou – DEF ENSE ATTORNEY H URL EY: That’s B rady – DEF ENSE ATTORNEY SEL L ERS: And y ou wer en’t g oing to turn it over

.DIXON — 8

The trial court then responde d, “He y , y ’all chill out. Every body —if ever y body would please
excuse y ourself f

rom the cour

troom except for the a

ttorney s.” De fense counsel then obje cted that “that’s a violation of Presley v. Georgia .” T h e trial court responded, “From now on one person 1 2 asking questi o n s wi l l b e the one that makes objections. None of this all four people making any objections. I s that understood? ” Mr. Hur ley , responde d that he under stood the court’s r uling but wanted to a dvise the cour t of a constitutional violation. The trial court r esponded, “ Well y ou can advise Mr. Sellers, and he can make that objection.” Mr. Hurley then stated that “sometimes it’s not timely ” and that he was g oing t o co n t inue to object to constitutional violations. The parties’
at t o rn ey s then beg an discussing other matters, but at some point, Mr. Hurley returne d to h i s objection: “I want to say for the rec ord that the Court has excused about 50 people from the g allery , and they are not pr esent for this confer ence , this discussion we’re ha ving. We object under the 6 t h Amendment, the 14 Amendment and rig ht now it’s basica lly all lawy ers and staff from the D.A.’s t h
office in the courtroom and all of the public has been excused.” Two of the prosec utors then beg an discussing which people prese nt wer e or wer e not from the prosec utor’s office

. The trial court then interrupted, “Well, there ’s g oing to be a $500.00 fine for ever y body that makes some comment other than asking questions. These side-bar comments are g oing to stop, or y ou are g oing to start writing chec ks, ever

y one of y ou. Any

body have a ny questions about this? ” Mr. Hur ley , Mr. Sellers, and

one of the prosec utors replied, “No, sir.” When asked if there was any thing else to take up outside the prese nce of the jury , the parties initially responde d that there was not, b u t t h e defe nse then
eng ag ed in a dis cussion with the t rial court about a video s t at em en t

. The defense did not further addre ss the Presley

objection, and the tr ial court did not rule on it.

See P resley v . Georgia , 558 U.S. 209 (2010). 1 2DIXON — 9 3. Closing Argume nts Third, in a motion for new trial, Dix on complained for the first time that some members of the public wer e excluded fr om the courtroom dur ing c losing a rg uments. I n aff

idavits, the defe nse attorney s claimed that they lear ned about the e x clusion after trial.
At the m otion-for-ne w-trial hearing , the wife of one of the de fense attorney s testified that, when she arr ived fif

t een minutes afte r t he procee dings had started that day , two sheriff ’s deputies
“we re preventing any one to come in.” She stated t hat four or five people, including he rself, were excluded. She further testified that, when asked, “Why can’ t we co m e i n ? ” o n e of the deputies responde d, “He doesn’t want any one standing .” She then stated that she “looked in and there wer e empty spots.” When asked, on cross-e x amination, whether she told her husband or the other defe nse attorney during one of the brea ks in arg ument about what was g oing on, she responde d that she did
not. When asked if she was ultimately able to enter the courtroom, she responde d that she was able
to enter when someone she knew was c oming out. The defe nse called another attorney , who was
not a ffiliated with the case . This attorney testified that she wanted to watch closing arg uments but

was told that she could not g o into the courtroom beca use the judge did not want any one standing

. S h e re s p onded aff

irmatively when asked if the judge said “it would be one in, one out

. ” T h e
serg eant who supervised secur ity at the courthouse testified that the judge allowed only for those who could sit a

nd that the policy

would be that one c ould come in when another person went out. The serg eant testified that the courtroom appea red to be full but that he could not say whether there

wer e any empty seats. The serg eant also testified t hat t he courtroom used for trial was the larg est courtroom in the c ourthouse.
I n its finding s of fac t, the trial court found that the trial was held in the larg est courtroom inDIXON — 10

the courthouse and that “t he courtroom was filled to capa city with specta tors” during closing
arg uments. The trial c ourt furthe r found that “ [a] ny reg ulation of entrants into the cour troom was done for safe ty rea sons, to maintain courtroom dec orum, and to minimiz e juror distra ction.” B. App eal Dix on complained that these three instances—whe n t h e b ai liffs excluded a sketch artist during jury selec tion, when the trial court order ed specta tors out of the courtroom afte r rele asing the jury for the day , and when some persons wer e excluded during closing arg uments—constituted the improper closing of the courtroom. The court of appea ls ag ree d

. I n re s p o n se to the State’s 1 3
arg uments that Di x on failed to prese rve err or with respe ct to the first and third instances of
courtroom closure, the court of appea ls pointed to Dix on’s objection to the exclusion of the sketch artist, to Dix on’s claim in his motion for new trial reg arding the exclusion of specta tors d u ri n g closing arg ument, and to Dix on’s claim that he lear ned of the closi n g-a rgu m ent exclusion afte r trial. The court of appea ls further stated: “The State does not point us to, and we do not find, fac ts 1 4
in the rec ord tending to indicate that appellant’ s complaints of the first and third closures wer e not made a t the ear liest possibl e opportunity .” 1 5 C. Analysis The rig ht to a public trial is forf eitable and must be prese rved by a proper objection at trial. 1 6

Dixon , 566 S.W .3d at 371, 373-74. 1 3 Id. at 371 n.27. 1 4 Id. 1 5 Pey ronel v. State , 465 S.W .3d 650 (Tex. Crim. App. 2015). 1 6DIXON — 11

Preser vation require s a timely , specific objection. The complaining party must also obtain a ruling 1 7

on the objection, or absent a ruling , the complaining party must object to the trial court’s ref usal to rule. As the appea ling party , Dix on had the burden to bring forth a rec ord showing that err or was 1 8
prese rved. The State has arg ued prese rvation on only the first and third instances for which Dix on

1 9 alleg es an improper closure, but prese rvation of err or is a sy stemic require ment that a first-tier appellate court is o b l i gat ed to addre ss befor e reversing a conviction. When the court of appeals 2 0
has failed to addre ss an outstanding issue of err or prese rvation, this Court can do so when confr onted wi t h o n e. We conclude that Dix on has failed to meet his burden to show prese rvation as to t h e

2 1
second instanc e as w ell as the fir st instance.
1. The Sk etc h Artist Wit h respe ct t o the first instance, the exclusion of t he sketch artist, Dix on’s obj ection was late. Dix on did not object to the exclusion of the sketch artist until the next day

. When he objected, he said that the sketch artist was in the hallway the day befor e, but he did not ex p l ai n when the defe nse became awar e of that fac t. The court of appeals concluded t hat t he S t at e d i d n o t p o int to fac ts in the rec ord showing that the objection was not made at the ear liest opportunity , but that place s

T E X
. R. A P P
. P. 33.1(a)( 1)(A)

. 1 7 Id. 33.1(a) (2). 1 8 See W ord v. State , 206 S.W .3d 646, 651-52 (Tex. Crim. App. 2006) (“I t is usually the 1 9 appea ling pa

rty ’s burde n to present a

rec ord showing proper ly prese rved, r ever sible err or.”)

. Darcy v. State , 488 S.W .3d 325, 327-28 (Te x . Crim. App. 2016). 2 0 Id. We note that Dix on’s brief be fore us contends that er ror wa s prese rved w ith respec t 2 1 to the second instance: “B oth defe nse counsel immediately objected and made a rec ord t hat no member of the public rema ined in the courtroom. Acc ording ly , this err or was prese rved.” (Citation omitted).DIXON — 12

the burden of proof on the wrong party

. I t was Dix on’s burden to prove that his objection was made
at the ear liest opportunity

. The rec ord shows that the objection was made l at e, s o Di x o n was require d to proff

er information justify ing a late objection. He has not done so beca use his attorney s did not ex plain when the ske tch ar tist’s ex clusion first came to their attention. 2. Hearing Outsid e the Jury’ s P rese nce I n the second instance, when the trial court order ed the courtroom clea red, the defe n se objected at the time of the event but ne ver obtained a ruling

. The trial court told the attorney s that the “person asking t he questions will be the one that make s any objections.” I nstead of following that proce dure, a

defe nse attorne y

who was not a sking que stions continued with the obje ction, the discussion shifted to other matters, an d t he trial court did not rule on the objection. We need not decide whether the defe nse team proce durally defa ulted err or by failing to follow the trial court’s
proce dure reg ar d i n g whi ch attorney must make the objection beca use none of the defe nse team
reque sted a ruling from the trial court or objected to the trial court’s ref usal to rule. Although the

2 2
trial court threa

tened to fi n e t h e attorney s, it was specific ally for making sidebar comments. The
court did not threa ten to fine the attorney s for making objections or for asking for a ruling on an

Cf. Cameron v. State , 490 S.W .3d 57, 61 (Tex. Crim. App. 2 0 1 4 ) (“ As we view it, the 2 2 rec ord shows very clea

rly that the appellant’ s trial counsel broug ht the issue of the closed courtroom to the attention of the trial court. The court acknow ledg ed the appellant’ s Six th Amendment rig hts and then s t ated that the courtroom was not closed. Counsel then reque sted (at least six separ ate times) that the cour

t rule on his objection, but the court declined to rule. Texas Rule of Appellate Procedur e 33.1 clea

rly states that, in order to prese rve err or, the rec ord must show that the trial court either ‘ruled on the reque st, objection, or motion either expressly or implicitl y or ref used to rule on the reque st, objection, or motion, and the complaining party objected to the ref usal.’ This happene d below.”) ; see also Smith v. State , 499 S.W .3d 1, 6 (Tex. Crim. App. 2016) (plurality op.) (“A ppellant never asked for a ruling on the issue, nor did he obje ct to the trial judg e’s f ailure to rule . Be cause he failed to obtain a rulin g o n t he Four th Amendment complaint, he failed to prese rve err or with respe ct to that complaint.”).DIXON — 13

objection. At any rate , when asked i f t hey had any thing further to take up outside the presence of the jury , the defe nse attorney s could have, but did not, ask for a ruling on the public-trial objection. 3. Closing Argume nts
R ega rd i n g t h e t h ird instance, under Presley , “Tria l courts are obliga ted to t ak e ev er y

rea sonable measure to acc ommodate pu b l i c at tendanc e at criminal t rials.” The trial court found 2 3
that the courtroom was filled to capa city

. Although there was testimony from a defe nse attorney ’s wife that there wer e empty seats in the courtroom, the trial co u rt wa s not require d to believe this testimony and could rely upon its own rec ollection that the courtroom was full. The exclusion of 2 4 specta tors from the c ourtroom bec ause the courtroom is full is not by itself a violation of the rig ht to a public trial. 2 5

Presley , 558 U.S. at 215. 2 3 See Okonk

wo v. State , 398 S.W .3d 689, 695 (Tex. Crim. App. 2013) (“The trial court, as 2 4 fac tfinder, is the sole judge of witness cre dibilit y at a hear ing on a motion for new trial with respe ct to both l i v e testimony and aff idavits. Acc ording ly , the appellate court must aff ord almost total defe renc e to a trial court’s finding s of historical fac ts as well as mix ed questions of law and fac t that turn on an evaluation of credibility and demeanor. This same de fer ential re view must be g iven to a trial court’s deter

mination of historical fac ts ba sed solely on aff idavits, reg ardle ss of whether the aff idavits are controve rted. Her e, in viewi n g t h e ev i d en ce in a light most favor able to the trial court’s ruli n g, the court of appea ls should have defe rre d to the trial court’s implied finding that counsel’s affida vit lacke d cre dibilit y . I n the absence of that aff idavit, the co u rt o f ap peals should have examined the totality of the rec ord in a light most fav o ra b l e t o t h e trial court’s ruling .”) (citations omitted).

See United States v. D o w ns-Moses , 329 F.3d 253 (1 Cir. 2003) (quoting United St ates 2 5 st v. Kobli , 172 F.2d 919, 923 (3d Cir. 1949) (“The courts

. . . have denied that the constitutional rig ht to a public trial involves the nece ssity of holding the trial in a place larg e enoug h to acc ommodate all those who desire to attend.”) (ellipsis in Dawns-Moses )); St. Clair v. Commonwealth , 140 S.W .3d 5 1 0, 555 (Ky

. 2004) (“[T] he ex clusion of a single member (or even a handful of m ember s) o f t h e public from trial proce eding s will not conver t an otherwise public trial into a ‘star chambe r.’” ) (also quoting W

endling v. Commonwealth , 143 Ky

. 587, 137 S.W

. 205, 211 (1911) (“The provision in section 11 of the Constit ution rec og nizi ng the rig ht of an acc used to have a public trial does not m ea n t h at all of the public who desire to be prese nt shall have opportunity to do so . . . T h eDIXON — 14

I n a n o t o rious case from Texas involving came ras in the courtroom, the Supreme Court explained that the purpose of the Six th Amendment rig ht to a public trial is to g uar an t ee t h at the

acc used will be fairly dealt with and not unjustly condemne d. History , the Court said, “had proven 2 6
that secr et tribunals wer e eff ective instruments of oppression.” I t is the dang er of secr et trials, then, 2 7 that the rig ht to a public trial was mea nt to address. 2 8
Chief J ustice Warren explained that a trial is public, i n t h e const itutional sense, “whe n a courtroom ha s fac iliti es for a rea sonable number of the public to observe the proce eding s.” And 2 9
in a conc urring opinion in that same case , J ustice Ha rlan e x plained: Obviously , the public trial g uara ntee is not violated i f an individual member of the public cannot g ain admittance to a cour troom beca

use there are no available seats. The g uara ntee will alre ady have been met, for the “public” will be prese nt in the form of those per sons who did g ain admission. Even the actua l pr esenc e of the public is not g uara nteed. A public trial implies only that the court must be open to those who wi s h t o come, sit in the available seats, conduct themselves with decor um, and

require ment is fairly observe d if

. . . a rea sonable p roportion of the public is suffe red to attend.”) (interna l quotation marks omitted, ellipses in St. Clair )); W illiams v. Nelson , 172 Colo. 176, 178, 471 P.2d 600, 601-02 (1970) (“B eing filled to capa city , it was undoubtedly true that some persons wer e thus preve nted from attending the hear ing. But this did not transfor m it into a secr et hear ing. I t rema ined in ever

y s en s e a p u b l i c hear ing. The require ment of a public trial is fairly observe d if without partiality or favor itis m a re as onable portion of the public is suffe red to attend.”) ; State v. Saale , 308 Mo. 573, 580-81, 274 S.W

. 393, (1925) (“[T]he r ight of a defe ndant in a criminal case to a public trial is not violated, wher e, afte r admitting the p u b l i c u n t i l the seats of the court room wer e filled, others seeking admission are excluded.”) (citing State v. Brooks , 92 Mo. 542, 5 S.W

. 257 (1887), overruled on othe r grounds by State v. H athorn , 166 Mo. 229, 65 S.W . 756 (1901))

. Estes v. Tex as , 381 U.S. 532, 538-39 (1965). 2 6 Id . at 539. 2 7 Id

. 2 8 Id. at 584 (Warr en, C.J . concur ring ). 2 9DIXON — 15

observe the trial proc ess. 3 0
J ust so. Her e, the trial court rea sonably acc ommodated p u b l i c at t endanc e by using the larg est courtroom in the c ourthouse. The re w as no er ror. III. Dispos ition
As the court of appea ls observe d, Dix on raised fifty issues befor e it, and the court of appea ls addre ssed only some of those issues. We reve rse the judgme nt of the court of appea ls and rema nd 3 1
the ca se to that court to addr ess Dixon’s remaining claims that have not y et bee n addre ssed.

Filed: January

15, 2020 Publis h

Id. at 588-89 (H arla n, J ., concur

ring ). 3 0
Dixon , 566 S.W .3d at 354. I n addition to the C SL I and public-tria l claims, the court of 3 1 appea ls also addre ssed—and r ejec ted—suffic iency -of- the-e vidence claims. See id. at 354-63.