## IN THE COURT OF CRIMINA L APP EALS OF TEX AS

N O . P D
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B O B B Y J O E P E Y R O N E L , 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 F I R S T C O U R T O F A P P E A L S

H A R R I S C O U N T Y
J O H N S O N , J . , f

i l e d a d i s s e n t i n g o p i n i o n . D I S S E N T I N G O P I N I O N On direc t appea l, one of appellant’ s claims asser ted that the trial court violated his “rig ht to

a public trial whe n i t i m p ro perly excluded all of his friends and family who wer e prese nt in the courtroom” and “in the gal l er y ” d u ri ng the punishment phase of the trial. The court of appea ls conclude d that the trial court improperly order ed a total closure of the courtroom, reve rsed the judgme nt a s to punishment, and rema nded to the trial court to conduct a new punishment hear ing. Pey ronel v. State , 446 S. W

. 3 d 1 5 1 , 159, 162 (Tex. App.–Houston [1st Dist.] 2014). On discretionar

y revie w, the majority g rante d the state’s fir st gr ound for r eview and now sustains tha t2

g round and “re verse [s] the judgme nt of the court of appea ls that Appellant prese rved a public-trial

1 complaint for appellate revie w.” Pey ronel v. State , No. PD-1274-14 (Tex. Crim. App., delivere d J une 24, 2015). I

respe ctfully

dissent. The rec ord ref

lects that afte r the victim’s fathe r testified as the first punishment witness, the
court took a short brea

k beca use the next witness was on her way to the courthouse but had not y et

arr iv ed

. Du ri n g t hat break, t he trial court became awa re that, “Somebody approa ched one of the 2 jury members and said: How does it fee l to convict an innocent man? ” I X R.R. 7. That person was

an unidentified woman. The prosec utor asked that “fe males, fema le members of the defe ndant’s family not be allowed in the courtroom during testimony [,] ” as she did not want any of the jurors to fee l intim i d at ed whi le having to make a decision. I X R.R. 9. Appellant objected that such an exclusion was “too broad to exclude [hi s] wife and daug hter to cre ate the impression in the jury ’s mind that he has absolutely no support whatsoeve r here .” I X R.R. 9. After the prosec utor sug g ested that appellant’ s support seeme d to have crosse d the line into juror intimi dation, the trial court stated, “Nobody will stay in the courtroom while we proce ed with this matter[,] ” and that his prospec tive witnesses wer e to be instructed “to wait outside until such time as they can come in,” including both witnesses and g allery

members. I X R.R. 9-10. The court of appea ls pointed out that appellant “made clea r that he did not ag ree to the trial court’s exclusion of his family and arg ued that exclusion would cre ate a neg ative impression in the jury ’s ey es.” Pey r o n el , 446 S.W .3d at 156. I t rec og nized that, while appellant did not expli citly

W e g r a n t e d r e v i e w o f o n l y t h e f i r s t o f t h e s t a t e ’ s g r o u n d s f o r r e v i e w . T h a t g r o u n d c l a i m s t h a t t h e c o u r t o f 1
a p p e a l s e r r e d i n f

i n d i n g t h a t t h e p u b l i c - t r i a l i s s u e w a s p r e s e r v e d f o r r e v i e w . T h e t r i a l c o u r t s t a t e d , “ I h e a r s o m e b o d y m a d e a c o m m e n t t o a j u r o r o u t t h e r e t h a t i s p a r t o f t h e d e f e n s e i n 2 t h i s c a s e . ” I X R

. R

. 7

.3

arg ue that ex cl u s i o n of his family would abrog ate his rig ht to a public trial, it conclude d that his objection was suf

ficient to pre serve err or. Id . I ag ree . The majority , while rec og nizi ng that appellant was not require d to use “mag ic lang uag e” to
prese rve his public-trial complaint for revie w, conclude s that appellant’ s objection was insufficient
to prese rve t h at co m p l ai n t and holds that appellant is try ing to raise an abstrac t claim as an afte rthoug ht on appea l. Pey ronel , slip op. at 7. I disag ree . Appellant’s objec tion clear ly notified the trial court that he objected to the e x clusion of all specta tors. He objected to the trial court announcing that “nobody will stay in the courtroom.” The trial court’s g lobal exclusion eff ectively cl o sed the proce eding to ever y one—appe llant’s family , friends, and supporters, other interested observe rs, and the g ener al public—and violated appellant’ s rig ht to a public trial. “Nobody ” obviously means “nobody ,” (nec essar ily excepting essential trial 3 participa nts, such as the t ri al attorney s, individual witnesses as they wer e testi fy ing, and t he court and cour t staff). A nd clea

rly appellant objec ted to such a g lobal exclusion. The state soug ht only to exclude fema le members of appellant’ s family

. Ap p el l ant’s complaint, that “that’s too broad to exclude [hi s] wife and daug hter,” constituted an objection to any exclusion t hat exceede d the minimum required to ac complish the purpose of the i nitial ex clusion: removing from the courtroom the unidentified fema le person who was associate d with the defe nse and who r eporte dly

inappropria tely

confr onted a juror

. I f a b u y er purchase s an appliance for a specific place that is two fee t wide, that buy er wi l l object to the substitut ion by the seller of an appliance that is two fee t and two inches wide, and the buy er’ s objection nece ssarily puts the seller on notice th at the buy er is also objecting to the

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. I , § 1 0 ; T e x . C o d e C r i m . P r o c . a r t s . 1

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substitut ion of any appliance that is even wider than two fee t and two inches. L ikewise, objecting that the exclusion of the fema le member s of his family was “ too broad” nece ssarily constituted an objection to the exclusion of an even larg er g roup of people and put the trial court on notice that its subsequent g lobal exclusion, by which “nobody ” was allowed to stay in the courtroom, was also “too broad.”
I believe that the state’s g round for revie w should be overr uled and that the judgme nt of the court of a ppeals should be a ffirme d. Be cause the majority does not do so, I

respe ctfully

dissent.

Filed: June 24, 2015 Publis h