Mike Alvin Ruiz v. State

ACCEPTED
06-15-00084-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/10/2015 12:26:22 PM
DEBBIE AUTREY
CLERK
No. 06-15-00084-CR
No. 06-15-00085-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
9/11/2015 4:30:00 PM
IN THE DEBBIE AUTREY
Clerk
COURT OF APPEALS
FOR THE SIXTH
JUDICIAL DISTRICT OF TEXAS
TEXARKANA
MIKE ALVIN RUIZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appealed in Cause Nos. 1524438, 1524439, and 1524608
8th Judicial District Court of Hopkins County, Texas
BRIEF FOR APPELLEE
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IDENTITY OF PARTIES AND COUNSEL
Trial Judge: The Honorable Eddie Northcutt, 8th Judicial District Court of
Hopkins County, 118 Church St., Sulphur Springs, Texas 75804.
Appellant: Mike Alvin Ruiz, ID#25116, 298 Rosemont, Sulphur Springs, TX,
75482.
Counsel for Appellant at Trial: Appellant was represented at the Trial Court by
Roland Ferguson, 1804 Woodbridge Dr., Sulphur Springs, Texas 75482.
Counsel for Appellant on Appeal: Appellant is represented on appeal by J.
Edward Niehaus, 207 W. Hickory St. Suite 309, Denton, Texas 76201.
Counsel for the State of Texas at Trial: The State of Texas was represented by
Nicholas Harrison, Assistant District Attorney of the 8th Judicial District.
Counsel for the State of Texas on Appeal: The State is represented on appeal by
Nicholas Harrison, Assistant District Attorney of the 8th Judicial District.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
8th Judicial District
State Bar No 24062768
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TABLE OF CONTENTS
TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
SUMMARY OF THE ARGUMENT 5
ARGUMENT AND AUTHORITIES 5
I. The Trial Court did not err by temporarily removing a defense witness 5
II. Appellant failed to preserve error 8
PRAYER FOR RELIEF 9
CERTIFICATE OF SERVICE 10
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TABLE OF AUTHORITIES
Cases
Addy v. State, 849 S.W.2d 425 (Tex. App. Houston – 1993) ...................................6
Andrade v. State, 246 S.W.3d 217 (Tex. App. Houston – 2008) ..............................7
Hernandez v. State, 914 S.W.2d 218 (Tex. App. El Paso – 1996) ............................6
Peyronel v. State, 2015 WL 3879824 .....................................................................8,9
U.S. ex. Rel. Orlando v. Fay, 350 F.2d 967 ...............................................................7
Rules
TRAP 33.1; ................................................................................................................9
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SUMMARY OF THE ARGUMENT
The Trial Court did not err by temporarily removing a defense witness from the
courtroom who was engaging in disruptive conduct. Appellant failed to preserve
error.
ARGUMENT AND AUTHORITIES
Appellant presents a sole issue for review: Did the Trial Court commit reversible
error in temporarily removing a defense witness from the courtroom during part of
Appellant’s testimony?
I. The Trial Court did not err by temporarily removing a defense
witness from the courtroom who was engaging in disruptive
conduct.
During sentencing, the Trial Court directed that Appellant’s mother be
removed from the courtroom after the following exchange:
COURT: Let me see the attorneys.
COURT: Ms. Ruiz, I’m going to ask you to remain outside the courtroom
while your son is testifying. You’re trying to testify for him and with him.
MS. RUIZ: No.
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COURT: Okay. Well, I’m going to let you sit outside. I’ve kind of put up
with that when the officers were on the stand as you kind of tried to agree or
disagree – mostly disagree, as if you were there. I’ve not heard any
testimony to show that you were there that night. Now your son is testifying,
and you’re either trying to kind of help him or whatever, it appears to me. So
just to take that out of the picture – okay – I’m going to have you remain
outside the courtroom. There’s some benches outside. Sit outside, and we’ll
call you when we’re ready. Okay?
MS. RUIZ: Okay.
COURT: Thank you. (Reporter’s Record v4 pgs. 68-69).
Ms. Ruiz was subsequently allowed back into the courtroom to testify
(Reporter’s Record v4 pg. 85).
To quote Hernandez v. State, 914 S.W.2d 218 (Tex. App. El Paso – 1996),
“Barring some members of the public from a courtroom, however, does not
necessarily mean that the accused has been denied a public trial, as that
determination is based on the particular circumstances of the case. Neither
the right of the accused nor of the citizenry to a public trial is absolute, and
reasonable limitations on public attendance may be imposed where they are
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necessary to protect a state interest that outweighs the defendant’s right to
public scrutiny.”
In Andrade v. State, 246 S.W.3d 217 (Tex. App. Houston – 2008), the Trial
Court ejected one of the defendant’s attorneys when he argued with the Court in
violation of a standing procedural order. The Court of Appeals stated that a Trial
Court’s authority to keep order in the courtroom is “a ‘substantial reason’
justifying … partial closure…” In fact, even a criminal defendant himself may be
removed from the courtroom for the same reason.
Andrade cited U.S. ex. Rel. Orlando v. Fay, 350 F.2d 967, which held that
the guarantee of a public trial means only that the public must be freely admitted so
long as those persons and groups who make up the public remain silent and behave
in an orderly fashion so that the trial may continue.
Addy v. State, 849 S.W.2d 425 (Tex. App. Houston – 1993), provides an
example of a partial closure that constituted reversible error. The contrast between
the case at bar and Addy is compelling. In Addy, six of the defendant’s friends
were excluded (1) during the findings portion of trial, (2) over defense objection,
(3) none of whom were witnesses for either party, (4) without engaging in
disruptive behavior, (5) the jury saw the spectators being removed from the
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courtroom, (6) and the Trial Court gave no compelling reason on the record for
removing them.
In our case, however, (1) the removal occurred during the sentencing portion
of the trial, (2) without defense objection, (3) the removed person was in fact a
defense witness who could have been excluded under the Rule at the request of
either party, (4) the removed person did engage in disruptive behavior, (5) there
was no jury present, and (6) the Trial Court articulated on the record his reasons
for temporarily removing her.
Although the Court in Addy found that the removal of the defendant’s
friends constituted error, the opinion states, “The barring of only some members of
the public from the courtroom does not necessarily mean that an accused has been
denied a public trial. That determination turns on the particular circumstances of
the case.” Id. It is clear that under the facts of our case, even the Addy Court would
reach a different conclusion.
II. Appellant failed to preserve error.
Peyronel v. State, 2015 WL 3879824, is a recent case from the Texas Court
of Criminal Appeals. Peyronel discusses the Marin analysis and which rights are
mandatory, which rights are subject to waiver, and which rights are subject to
forfeiture. Peyronel stated, “We agree with the majority of courts and hold that a
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complaint that a Defendant’s right to a public trial was violated is subject to
forfeiture.” In other words, if a Defendant does not expressly assert this right at
trial, it is forfeited.
Under Texas Rule of Appellate Procedure 33.1, the Defendant has the
burden to state the grounds for the ruling sought from the Trial Court with
sufficient specificity to make the Trial Court aware of the complaint, unless the
specific grounds are apparent from the context. TRAP 33.1.
In Peyronel, the Defendant actually objected at the time persons were
removed from the courtroom. However, the Court held that the objection was not
specific enough. Id.
In the case at bar, the record is devoid of any objection made at trial by
Appellant. Therefore, he failed to preserve any error and may not complain of it for
the first time on appeal.
PRAYER FOR RELIEF
The State requests that this Court AFFIRM Appellant’s conviction and sentence.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
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State Bar No 24062768
P.O. Box 882
Sulphur Springs, Texas 75483
(903) 885-0641
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to counsel for Appellant, Jason Niehaus, on this the 9th
day of September, 2015.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
CERTIFICATE OF WORD COUNT
I certify that this document contains 929 words according to the counting
tool in the program used to generate this document.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
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