COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00121-CR
CHRIS SHANE SPENCER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR13544
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Chris Shane Spencer appeals his convictions for continuous
sexual abuse of a child and injury to a child. In two points, Spencer argues that
the trial court denied him his rights to a fair and public trial with the assistance of
counsel of his choosing. We will affirm.
1 See Tex. R. App. P. 47.4. II. BACKGROUND
Because Spencer does not challenge the sufficiency of the evidence or
raise a point that requires a complete recitation of the facts, only those facts
necessary to the resolution of the points he brings on appeal are included in this
opinion.
After the State charged Spencer, the trial court determined that he was
indigent; thus, the trial court appointed him counsel—Pamela Walker. Just prior
to the jury panel being seated for voir dire, the following exchange between
Walker and the trial court occurred:
MS. WALKER: Your Honor, if it’s okay, Tracy Bush is going to sit in with me as second (inaudible) --
COURT REPORTER: I’m sorry, counsel. I didn’t hear what you said.
MS. WALKER: Tracy Bush is going to sit in with me as second chair.
THE COURT: Yeah. I mean --
MS. WALKER: Is that all right?
THE COURT: Pro bono, I assume?
MS. WALKER: Oh, yeah. It will be for free. Well, I pay her, but --
(Recess)
THE COURT: Have a seat, please. All right. Seat the jury panel, please.
MS. WALKER: Your Honor, may we approach?
2 [Prosecutor]: Counsel, --
MS. WALKER: This is off the record.
THE COURT: Well, there’s no reason to approach.
MS. WALKER: Tracy Bush is in the JP court, and she’ll be here, and is it all right if she walks around the side to sit down while they’re seating the jury? I am so sorry. She --
THE COURT: Well, if the jury is seated, no, she can’t do that. If the jury is seated and voir dire is going on, --
MS. WALKER: Okay.
THE COURT: -- no.
THE COURT: Now, if we’re -- if the -- if the jury is just being seated, then, yeah, that’s fine.
THE COURT: But once the jury is seated and voir dire starts, nix nix.
MS. WALKER: Okay. Thank you.
THE COURT: All right. Seat the jury.
Ultimately, a jury found Spencer guilty of continuous sexual abuse of a
child and injury to a child and assessed punishment at ninety-nine years and ten
years, respectively. The trial court rendered judgment accordingly. Spencer
then filed a motion for new trial. In his motion and at the motion-for-new-trial
hearing, Spencer argued that he had been denied his right to co-counsel, the
counsel of his choice, and the effective assistance of counsel when the trial judge
3 denied Walker’s request that Bush be allowed to come to counsel table after voir
dire had begun. The trial court denied Spencer’s motion, and this appeal
followed.
In his initial briefing to this court, Spencer argued that he had been denied
his right to a fair, impartial, and public trial under both the United States’ and
Texas’s constitutions. Specifically, Spencer argued that the trial court violated
his rights when it “denied” Bush from being admitted to the courtroom. In the
interest of justice, this court abated this case to the trial court so that the trial
court could make specific findings regarding whether Bush had been denied
access to the trial. The trial court found that all parts of the trial were open to the
public. The trial court further found that,
Tracy Bush was not [Spencer’s] court appointed trial counsel. Pamela Walker was. Tracy Bush was not present in the courtroom when jury selection began. The trial court did not exclude Tracy Bush, nor anyone else, from the courtroom during voir dire. The trial court simply set the parameters for the presence of Ms. Bush at the defense counsel table during voir dire, i.e. that she would not be allowed to be seated at the defense counsel table, “if the jury is seated and voir dire is going on.” Likewise, the trial court said, “ . . . if the jury is just being seated, then, yeah, that’s fine. But once the jury is seated and voir dire starts, nix nix.” The response of Ms. Walker to that instruction was, “Okay. Thank you.” The court merely limited where Ms. Bush could sit in the courtroom should she arrive after the jury panel was seated and voir dire was under way.
After the court made its fact findings and this appeal was reinstated,
Spencer submitted his supplemental brief arguing that he had been denied his
right to a fair trial and the assistance of counsel of his choosing.
4 III. DISCUSSION
A. Spencer’s Right to a Public Trial
In his first point, Spencer argues that the trial court violated his rights to a
public trial “when he excluded defense counsel from the courtroom without any
justification, thereby violating [Spencer’s] constitutional guarantee to a fair and
impartial trial of his case.” The State counters that Spencer has not preserved
this argument for appeal and that the trial court did not exclude Bush from the
courtroom but that rather, the trial court merely set parameters on whether Bush
would be allowed to interrupt the court proceedings by being allowed to come to
the defense-counsel table after the jury panel was seated and voir dire had
begun. We agree with the State.
A complaint that a defendant’s right to a public trial was violated is subject
to forfeiture. Peyronel v. State, 465 S.W.3d 650, 652–53 (Tex. Crim. App.), cert.
denied, 136 S. Ct. 548 (2015). And an objection must be made as soon as the
basis for the objection becomes apparent, and the objection must be made with
sufficient specificity that it informs the trial court of the basis of the objection.
Courson v. State, 160 S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.).
Here, the record indicates that Spencer’s court-appointed attorney never made a
right-to-public-trial objection. In fact, it is difficult to construe Walker’s discussion
with the trial court as anything more than a request—one that Walker specifically
declared was to be “off the record.” Moreover, once the trial court informed
Walker of the parameters of allowing Bush to come to counsel table, Walker’s
5 response was, “Okay.” And Walker never once mentioned Spencer’s right to a
public trial. Thus, Spencer’s complaint on appeal that he was denied a public
trial is forfeited because he never objected to the trial court that this right was
being violated.
But even assuming that Walker’s request to the judge was a proper
objection regarding Spencer’s right to a public trial, the trial court specifically
found that all parts of Spencer’s trial were open to the public and that Bush was
not denied access to the courtroom but was merely not allowed to come to
counsel table once the jury panel had been seated and voir dire had begun.
Thus, the record does not support that Bush was denied access to any portion of
the trial. We overrule Spencer’s first point.
B. Spencer’s Right to Counsel of His Own Choosing
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00121-CR
CHRIS SHANE SPENCER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR13544
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Chris Shane Spencer appeals his convictions for continuous
sexual abuse of a child and injury to a child. In two points, Spencer argues that
the trial court denied him his rights to a fair and public trial with the assistance of
counsel of his choosing. We will affirm.
1 See Tex. R. App. P. 47.4. II. BACKGROUND
Because Spencer does not challenge the sufficiency of the evidence or
raise a point that requires a complete recitation of the facts, only those facts
necessary to the resolution of the points he brings on appeal are included in this
opinion.
After the State charged Spencer, the trial court determined that he was
indigent; thus, the trial court appointed him counsel—Pamela Walker. Just prior
to the jury panel being seated for voir dire, the following exchange between
Walker and the trial court occurred:
MS. WALKER: Your Honor, if it’s okay, Tracy Bush is going to sit in with me as second (inaudible) --
COURT REPORTER: I’m sorry, counsel. I didn’t hear what you said.
MS. WALKER: Tracy Bush is going to sit in with me as second chair.
THE COURT: Yeah. I mean --
MS. WALKER: Is that all right?
THE COURT: Pro bono, I assume?
MS. WALKER: Oh, yeah. It will be for free. Well, I pay her, but --
(Recess)
THE COURT: Have a seat, please. All right. Seat the jury panel, please.
MS. WALKER: Your Honor, may we approach?
2 [Prosecutor]: Counsel, --
MS. WALKER: This is off the record.
THE COURT: Well, there’s no reason to approach.
MS. WALKER: Tracy Bush is in the JP court, and she’ll be here, and is it all right if she walks around the side to sit down while they’re seating the jury? I am so sorry. She --
THE COURT: Well, if the jury is seated, no, she can’t do that. If the jury is seated and voir dire is going on, --
MS. WALKER: Okay.
THE COURT: -- no.
THE COURT: Now, if we’re -- if the -- if the jury is just being seated, then, yeah, that’s fine.
THE COURT: But once the jury is seated and voir dire starts, nix nix.
MS. WALKER: Okay. Thank you.
THE COURT: All right. Seat the jury.
Ultimately, a jury found Spencer guilty of continuous sexual abuse of a
child and injury to a child and assessed punishment at ninety-nine years and ten
years, respectively. The trial court rendered judgment accordingly. Spencer
then filed a motion for new trial. In his motion and at the motion-for-new-trial
hearing, Spencer argued that he had been denied his right to co-counsel, the
counsel of his choice, and the effective assistance of counsel when the trial judge
3 denied Walker’s request that Bush be allowed to come to counsel table after voir
dire had begun. The trial court denied Spencer’s motion, and this appeal
followed.
In his initial briefing to this court, Spencer argued that he had been denied
his right to a fair, impartial, and public trial under both the United States’ and
Texas’s constitutions. Specifically, Spencer argued that the trial court violated
his rights when it “denied” Bush from being admitted to the courtroom. In the
interest of justice, this court abated this case to the trial court so that the trial
court could make specific findings regarding whether Bush had been denied
access to the trial. The trial court found that all parts of the trial were open to the
public. The trial court further found that,
Tracy Bush was not [Spencer’s] court appointed trial counsel. Pamela Walker was. Tracy Bush was not present in the courtroom when jury selection began. The trial court did not exclude Tracy Bush, nor anyone else, from the courtroom during voir dire. The trial court simply set the parameters for the presence of Ms. Bush at the defense counsel table during voir dire, i.e. that she would not be allowed to be seated at the defense counsel table, “if the jury is seated and voir dire is going on.” Likewise, the trial court said, “ . . . if the jury is just being seated, then, yeah, that’s fine. But once the jury is seated and voir dire starts, nix nix.” The response of Ms. Walker to that instruction was, “Okay. Thank you.” The court merely limited where Ms. Bush could sit in the courtroom should she arrive after the jury panel was seated and voir dire was under way.
After the court made its fact findings and this appeal was reinstated,
Spencer submitted his supplemental brief arguing that he had been denied his
right to a fair trial and the assistance of counsel of his choosing.
4 III. DISCUSSION
A. Spencer’s Right to a Public Trial
In his first point, Spencer argues that the trial court violated his rights to a
public trial “when he excluded defense counsel from the courtroom without any
justification, thereby violating [Spencer’s] constitutional guarantee to a fair and
impartial trial of his case.” The State counters that Spencer has not preserved
this argument for appeal and that the trial court did not exclude Bush from the
courtroom but that rather, the trial court merely set parameters on whether Bush
would be allowed to interrupt the court proceedings by being allowed to come to
the defense-counsel table after the jury panel was seated and voir dire had
begun. We agree with the State.
A complaint that a defendant’s right to a public trial was violated is subject
to forfeiture. Peyronel v. State, 465 S.W.3d 650, 652–53 (Tex. Crim. App.), cert.
denied, 136 S. Ct. 548 (2015). And an objection must be made as soon as the
basis for the objection becomes apparent, and the objection must be made with
sufficient specificity that it informs the trial court of the basis of the objection.
Courson v. State, 160 S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.).
Here, the record indicates that Spencer’s court-appointed attorney never made a
right-to-public-trial objection. In fact, it is difficult to construe Walker’s discussion
with the trial court as anything more than a request—one that Walker specifically
declared was to be “off the record.” Moreover, once the trial court informed
Walker of the parameters of allowing Bush to come to counsel table, Walker’s
5 response was, “Okay.” And Walker never once mentioned Spencer’s right to a
public trial. Thus, Spencer’s complaint on appeal that he was denied a public
trial is forfeited because he never objected to the trial court that this right was
being violated.
But even assuming that Walker’s request to the judge was a proper
objection regarding Spencer’s right to a public trial, the trial court specifically
found that all parts of Spencer’s trial were open to the public and that Bush was
not denied access to the courtroom but was merely not allowed to come to
counsel table once the jury panel had been seated and voir dire had begun.
Thus, the record does not support that Bush was denied access to any portion of
the trial. We overrule Spencer’s first point.
B. Spencer’s Right to Counsel of His Own Choosing
In his second point, Spencer argues that he was denied his right to a fair
trial and the assistance of counsel of his choosing when the trial court did not
allow Bush to come to counsel table after the jury panel was seated and voir dire
had begun. We disagree.
The right of the accused to choose counsel, pursuant to the Sixth
Amendment, does not extend to defendants who have counsel appointed for
them by the trial court. Whitney v. State, 396 S.W.3d 696, 700 (Tex. App.—Fort
Worth 2013, pet ref’d).
Here, after the trial court found Spencer indigent, it appointed Walker as
his attorney. Thus, Spencer was not entitled to also have Bush represent him,
6 and his rights to an attorney were not violated. See Malcom v. State, 628
S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982) (stating that once “the court
has appointed an attorney to represent the indigent defendant, the defendant has
been accorded the protections provided under the Sixth and Fourteenth
Amendments”). We overrule Spencer’s second point.
IV. CONCLUSION
Having overruled both of Spencer’s points on appeal, we affirm the trial
court’s judgment.
/s/ Bill Meier BILL MEIER JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 24, 2018