No. PD-1274-14

In the

Court of Criminal Appeals



No. 01-13-00198-CR

In the Court of Appeals for the First District of Texas at Houston



No. 1254877

In the 174th District Court of Harris County, Texas



BOBBY JOE PEYRONEL

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S BRIEF ON DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney

Harris County, Texas

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

TBC No. 796910

kugler_eric@dao.hctx.net

LISA COLLINS

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713-755-5826

FAX: 713-755-5809

Counsel for Appellee

ORAL ARGUMENT NOT PERMITTED

PD-1274-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/15/2015 9:16:42 AM

Accepted 1/15/2015 9:35:49 AM

ABEL ACOSTA

CLERK
i

STATEMENT REGARDING ORAL ARGUMENT

This Court has not permitted oral argument in this case.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Eric Kugler  Assistant District Attorney on appeal

Lisa Collins  Assistant District Attorney at trial

Appellant or criminal defendant:

Bobby Joe Peyronel

Counsel for Appellant:

Frances Bourliot  Assistant Public Defender on appeal

Richard Oliver; Alan Cohen  Counsel at trial

Trial Judge:

Hon. Vanessa Velasquez  Presiding Judge
ii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT..................................................i

IDENTIFICATION OF THE PARTIES .....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE...................................................................................v

ISSUE PRESENTED.................................................................................................1

The court of appeals erred in finding that the public-trial issue was preserved for 

review when the appellant did not ask the trial court to do anything and did not 

alert the trial court to the specific grounds that he would raise on appeal.............1

STATEMENT OF FACTS .........................................................................................1

SUMMARY OF THE ARGUMENT.........................................................................4

ARGUMENT.............................................................................................................4

PRAYER ....................................................................................................................8

CERTIFICATE OF SERVICE AND COMPLIANCE...............................................9
iii

INDEX OF AUTHORITIES

CASES

Addy v. State, 

849 S.W.2d 425 (Tex. App.—

Houston [1st Dist.] 1993, no writ) .........................................................................6

Blue v. State, 

41 S.W.3d 129 (Tex. Crim. App. 2000)..................................................................5

Broxton v. State, 

909 S.W.2d 912 (Tex. Crim. App. 1995)................................................................5

Cameron v. State, 

PD-1427-13, 2014 WL 4996290 (Tex. Crim. App. Oct. 8, 2014) .........................7

Coble v. State, 

330 S.W.3d 253 (Tex. Crim. App. 2010)................................................................7

Dixon v. State, 

2 S.W.3d 263 (Tex. Crim. App. 1998)....................................................................5

Espada v. State, 

No. AP–75,219, 2008 WL 4809235 (Tex. Crim. App. 2008) ................................7

Fuller v. State, 

253 S.W.3d 220 (Tex. Crim. App. 2008)................................................................5

Levine v. United States, 

362 U.S. 610 (1960)...............................................................................................6

Martinez v. State, 

22 S.W.3d 504 (Tex. Crim. App. 2000)..................................................................5

McEntire v. State, 

265 S.W.3d 721 (Tex. App.—

Texarkana 2008, no pet.)........................................................................................6
iv

Mitchell v. State, 

No. 10–10–00307–CR, 2011 WL 5994154 (Tex. App.–

Waco 2011, no pet.)................................................................................................6

Peyronel v. State, 

No. 01–13–00198–CR, 2014 WL 4109589 (Tex. App.–

Houston [1st Dist.] Aug. 21, 2014, pet. filed)........................................................v

Rodriguez v. State, 

No. 04–04–00230–CR, 2005 WL 899963 (Tex. App.—

San Antonio Apr. 20, 2005, pet. ref’d)...................................................................7

Saldano v. State, 

70 S.W.3d 873 (Tex. Crim. App. 2002)..................................................................5

Waller v. Georgia, 

467 U.S. 39 (1984).................................................................................................5

STATUTES

TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010)...................................................1

TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010)....................................................1

TEX. CODE CRIM. PROC. art. 57.03(d) (West 2010)....................................................1

RULES

TEX. R. APP. P. 33.1(a)............................................................................................5, 8
v

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

The appellant was charged with the aggravated sexual assault of a child 

committed on October 27, 2009 (CR – 2). He pled “not guilty” to the charge, and 

the case was tried to a jury (CR – 248). The jury found the appellant guilty and 

assessed punishment at 50 years in prison (CR – 248). 

The court of appeals affirmed the conviction but issued a published opinion

reversing the judgment on punishment; it held that the trial court improperly 

excluded the female members of the appellant’s family from the courtroom during 

the punishment phase after one of them had asked a juror, “How does it feel to 

convict an innocent man?” Peyronel v. State, No. 01–13–00198–CR, 2014 WL 

4109589 (Tex. App.–Houston [1st Dist.] Aug. 21, 2014, pet. filed). This Court 

granted review on whether that issue was preserved for appeal. 
ISSUE PRESENTED

The court of appeals erred in finding that the public-trial issue 

was preserved for review when the appellant did not ask the 

trial court to do anything and did not alert the trial court to 

the specific grounds that he would raise on appeal.

STATEMENT OF FACTS

Jane1 was a three-year-old girl with two older brothers (RR. IV – 52). Her 

mother had a master’s degree in counseling and worked as a school counselor, so 

she used Marie Payronel as her daycare provider (RR. IV – 50-51, 53) (RR. VI –

80). By October 2009, Jane’s two older brothers had moved on to school, but Jane 

was still attending Marie’s daycare, which was set up in a section of Marie’s home 

(RR. IV – 56-57). 

Jane’s mother felt very close to Marie, but she did not feel close to Marie’s 

husband, the appellant (RR. IV – 57, 60) (RR. VI – 81). The appellant would often 

be done with his work by the time that Jane’s mother was picking her up from 

daycare (RR. IV – 59-60) (RR. VI – 92). According to Marie, the appellant might 

 

1

 A person “who has access to or obtains the name, address, telephone number, or other 

identifying information of a victim younger than 17 years of age may not release or disclose the 

identifying information to any person who is not assisting in the investigation, prosecution, or 

defense of the case.” TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010). The term “victim” 

means a person who was the subject of: “(A) an offense the commission of which leads to a 

reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the same 

criminal episode, as defined by Section 3.01, Penal Code, as an offense described by Paragraph 

(A).” TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010). The release or disclosure of such 

information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC. art. 57.03(d) (West 

2010). Therefore, the pseudonym “Jane” will be used for the victim in this case. 
2

sometimes play with the kids, but he “almost never” took them to the bathroom 

(RR. VI – 93). The appellant would, however, say “flirtatious things” to Jane’s 

mother that “creeped [her] out a little bit.” (RR. IV – 60). 

On October 27, Jane’s mother picked Jane up from daycare around 3:30 p.m. 

and was driving her home when Jane said, “Mommy, Bobby licked the owie on my 

vagina today.” (RR. IV – 64). Jane’s mother was shocked and asked for 

clarification (RR. IV – 64). Jane repeated, “Bobby licked my vagina.” (RR. IV –

64). The appellant was the only Bobby that they knew (RR. IV – 64-65). Jane 

stated that the assault occurred on the bed and that the appellant had pulled down 

her pants (RR. IV – 65-66). When they arrived home, Jane’s parents discussed the 

situation and decided to call Marie (RR. IV – 67-68) (RR. VI – 90-91). Marie had 

apparently been at the doctor that day, which allowed the appellant an opportunity 

to assault Jane (St. Ex. 20) (RR. VI – 89). 

After talking with Marie, Jane’s parents called the police (RR. IV – 69). The 

police told them that Jane needed to go to Memorial Hospital for a sexual-assault 

examination (RR. IV – 16, 71). On the way to the hospital, Jane said, “Mommy, 

Bobby says my penis looks like a sucker.” (RR. IV – 76) (St. Ex. 20). On another 

occasion, her mother asked her, “Did you – did you touch Bobby’s penis?” (RR. IV 

– 79). Jane responded, “No. I licked it, but don’t tell the doctor.” (RR. IV – 79). 
3

At the hospital, Jane told the nurse, “Bobby, he licked my gina,” and she 

pointed to her vagina (RR. IV – 149) (RR. V – 102). Jane also stated that the 

appellant had licked her buttocks (RR. IV – 150). The nurse took Jane’s clothing 

for analysis (RR. IV – 71-74, 132, 137, 151). The analysis revealed that there was 

no blood or semen on Jane’s clothing, but there was male DNA on the crotch area 

of her panties (RR. IV – 217, 231, 241). Furthermore, although Jane’s father and 

brothers were excluded as a source, the appellant could not be excluded as the 

depositor of that male DNA (RR. IV – 185, 236) (RR. V – 67). Specifically, the 

appellant’s Y-chromosome profile was present in 1 in 79 Caucasians, 1 in 154 

African-Americans; and 1 in 100 Hispanics (RR. IV – 232, 237, 239). 

Jane later told a forensic interviewer about the appellant’s assaults (RR. V –

162-163) (St. Ex. 20). She stated that the appellant licked her vagina, her forehead, 

her leg, and her butt during the course of the assault (RR. V – 162-163) (St. Ex. 

20). She said that she did not have to lick the appellant and that she did not see 

any part of his body (St. Ex. 20). She also stated that at the end of the assault, the 

appellant said, “I’m going to get you down now.” (RR. V – 163) (St. Ex. 20). 

 
4

SUMMARY OF THE ARGUMENT

The court of appeals held that the trial court improperly excluded the female 

members of the appellant’s family from the courtroom during the punishment 

phase after one of them had asked a juror, “How does it feel to convict an innocent 

man?” But the public-trial issue was not preserved for appellate review because 

the appellant not ask the trial court to do anything and did not alert the trial court to 

the specific grounds that he would raise on appeal. 

ARGUMENT

During a break in the punishment-phase testimony, a woman who was “part 

of the defense in this case” approached one of the jurors and said: “How does it 

feel to convict an innocent man?” (RR. IX – 7). The trial judge stated that he 

would find out who it was and hold her in contempt (RR. IX – 7). The appellant’s 

counsel asked about potential character witnesses sitting in the courtroom, and the 

trial court decided to “invoke the Rule.” (RR. IX – 7-8). The appellant did not 

object (RR. IX – 8). The prosecutor also asked that female members of the 

appellant’s family be excluded from the courtroom during testimony because of 

concerns of “jurors being intimidated.” (RR. IX – 8-9). The appellant responded 

that it was “too broad to exclude [his] wife and daughter,” but the prosecutor 

answered that the family’s behavior had “crossed the line into...intimidation of a 

juror.” (RR. IX – 9). The trial court agreed and stated: “Nobody will stay in the 
5

courtroom while we proceed with this matter. Instruct your prospective witnesses 

to wait outside until such time as they can come in.” (RR. IX – 9). The appellant 

never specifically objected to the closing of the courtroom.

To preserve an error for appellate review, a party 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); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. 

App. 2000). The purpose of requiring an objection is to give the trial court or the 

opposing party the opportunity to correct the error or remove the basis for the 

objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Even 

constitutional guarantees can be waived by failure to object at trial. See Fuller v. 

State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Saldano v. State, 70 S.W.3d 

873, 887 (Tex. Crim. App. 2002). Finally, arguments on appeal must comport with 

the objection at trial or the error is waived. Dixon v. State, 2 S.W.3d 263, 273 (Tex. 

Crim. App. 1998); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); 

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

A public trial enables the public to see that the accused is dealt with fairly 

and not unjustly condemned, and the presence of spectators ensures that the 

accused’s triers are aware of their responsibility and its importance. Waller v. 

Georgia, 467 U.S. 39, 46 (1984). Id. A public trial also ensures that the judge and 
6

prosecutor carry out their duties responsibly, and it encourages witnesses to come 

forward and discourages perjury. Id. 

The right to a public trial, however, is not absolute. Addy v. State, 849 

S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1993, no writ). A defendant’s 

right to a public trial is not one of the few “systemic requirements” that a trial court 

must follow even if the parties wish otherwise, nor is it a “waiveable” right which 

must be implemented unless expressly waived. Mitchell v. State, No. 10–10–

00307–CR, 2011 WL 5994154 at *7 (Tex. App.–Waco 2011, no pet.) (not 

designated for publication) (citing Mendez v. State, 138 S.W.3d 334, 340 (Tex. 

Crim. App. 2004)). 

In the present case, the appellant never objected to the general exclusion of 

people from the courtroom during the punishment phase. Therefore, the appellant 

waived his right to present this complaint on appeal. Compare Levine v. United 

States, 362 U.S. 610, 619–20 (1960) (concluding that general objection to the 

nature of the proceedings was insufficient to alert the trial court to public trial 

objection, thus appellant did not preserve error for review); McEntire v. State, 265 

S.W.3d 721, 723 (Tex. App.—Texarkana 2008, no pet.) (“the San Antonio Court of 

Appeals found that this right fell into the third category and was forfeited by a 

failure to complain of exclusion of the public”); Rodriguez v. State, No. 04–04–

00230–CR, 2005 WL 899963 *1–2 (Tex. App.—San Antonio Apr. 20, 2005, pet. 
7

ref’d) (not designated for publication) (“we hold that by failing to object at the 

time the trial judge excluded all spectators, Rodriguez forfeited his right to present 

this complaint on appeal.”); Coble v. State, 330 S.W.3d 253, 277 n.56 (Tex. Crim. 

App. 2010) (citing Espada v. State, No. AP–75,219, 2008 WL 4809235 at *4 (Tex. 

Crim. App. 2008) (not designated for publication) (“The record reflects, however, 

that appellant failed to object at trial that he was being denied the right to a public 

trial. Therefore, he forfeited the right to raise this complaint on appeal.”) (not cited 

as authority but merely as a curiosity pursuant to Rule 77.3)); with Cameron v. 

State, PD-1427-13, 2014 WL 4996290 (Tex. Crim. App. Oct. 8, 2014) (holding that 

defendant preserved public trial issue for appeal when he brought issue to attention 

of trial court and then requested at least six separate times that court rule on 

defendant's objection, but court declined to do so).

On appeal, the appellant characterized his response to the State’s request as 

an “objection.” (App’nt Brf. 10). But in the trial court, the appellant characterized 

it simply as a response, as follows: “we’d respond to that by saying that’s too broad 

to exclude Mr. Peyronel’s wife and daughter to create the impression in the jury’s 

mind that he has absolutely no support whatsoever here.” (RR. IX – 9) (emphasis 

added). This response did not ask the trial court to do anything. Moreover, it did 

not alert the trial court to the specific grounds that would be raised on appeal, 

namely, the right to a public trial. Rather, the response was couched in terms of 
8

visible family support for the appellant rather than the benefits of the public’s 

observation of official proceedings. Therefore, it did not state the specific grounds 

for the objection. TEX. R. APP. P. 33.1(a). The appellant did not preserve his publictrial complaint for appeal, and the court of appeals erred in holding that the issue 

was preserved. 

PRAYER 

It is respectfully requested that the opinion of the court of appeals should be 

reversed in part so that the punishment is affirmed. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

kugler_eric@dao.hctx.net

TBC No. 796910
9

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 1,590 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Frances Bourliot

Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

frances.bourliot@pdo.hctx.net

Lisa McMinn

State Prosecuting Attorney

P.O. Box 13046

Austin, Texas 78711

Lisa.McMinn@SPA.texas.gov

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 796910

Date: January 15, 2015