Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION No. 04-12-00159-CR
Henry BENSON III, Appellant
v.
The STATE of Texas, Appellee
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR10097 Honorable Angus McGinty, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: March 20, 2013
REVERSED AND REMANDED
Appellant Henry Benson III was convicted by a jury of one count of criminally negligent
injury to a child and one count of reckless injury to a child. On appeal, Appellant asserts that his
Sixth Amendment right to a public trial was violated when the trial court excluded his parents
from voir dire. We agree. We reverse the trial court’s judgment and remand this cause to the
trial court for a new trial. 04-12-00159-CR
BACKGROUND
Appellant Henry Benson III was charged with one count of intentionally and knowingly
causing serious bodily injury to a child by holding the child in hot water and one count of
recklessly causing serious bodily injury to a child by failing to check the bath water temperature
before placing the child in the water. Benson chose a jury trial for both phases: guilt/innocence
and punishment.
Immediately after the trial court called for the venire panel to be brought in, but before
the panel actually entered the courtroom, Benson asked that his parents be allowed to be present
in the courtroom during voir dire. The trial court responded that “we are actually not going to
have room. [The venire members] take up every single seat for jury selection.” Citing Presley v.
Georgia, 130 S. Ct. 721 (2010), Benson asserted that he had a “constitutional right” to have his
parents in the courtroom during voir dire. The trial court overruled Benson’s objection and
excluded his parents from voir dire.
The jury found Benson guilty of reckless injury to a child and assessed his punishment at
confinement in the Institutional Division of the Texas Department of Criminal Justice for a term
of five years. Benson raises three points of error on appeal including his assertion that the trial
court violated his Sixth Amendment right to a public trial.
RIGHT TO A PUBLIC TRIAL
In his first point of error, Benson argues that when the trial court excluded his parents
from the courtroom during voir dire, it violated his Sixth Amendment right to a public trial. 1
1 It its brief, the State concedes that the trial court closed voir dire, the closure was not justified, and the appropriate remedy is for this court to reverse the trial court’s judgment and remand the cause for a new trial.
-2- 04-12-00159-CR
A. Applicable Law
In a criminal prosecution, the defendant has a right to a public trial. See U.S. CONST.
amends. VI, XIV; Presley v. Georgia, 130 S. Ct. 721, 723 (2010) (per curiam) (reiterating that
the Sixth Amendment right to a public trial applies to the states via the Due Process Clause of the
Fourteenth Amendment); Steadman v. State, 360 S.W.3d 499, 504 (Tex. Crim. App. 2012).
“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”
Presley, 130 S. Ct. at 724; accord Steadman, 360 S.W.3d at 505. If a trial court wishes to close
voir dire, the trial court “must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, [it] must consider reasonable
alternatives to closing the proceeding, and it must make findings adequate to support the
closure.” See Waller v. Georgia, 467 U.S. 39, 48 (1984); accord Lilly v. State, 365 S.W.3d 321,
328–29 (Tex. Crim. App. 2012).
In considering reasonable alternatives, “trial courts are required to consider alternatives to
closure even when they are not offered by the parties.” Presley, 130 S. Ct. at 724; accord Lilly,
365 S.W.3d at 329; Steadman, 360 S.W.3d at 509. A closure is not justified if there are
reasonable alternatives to closure that the trial court cannot “sensibly reject.” See Steadman, 360
S.W.3d at 509; see also Presley, 130 S. Ct. at 724–25; Lilly, 365 S.W.3d at 333. If voir dire was
closed, we must reverse the trial court’s judgment if “the record fails to show that [the] trial court
considered all reasonable alternatives to closure.” Lilly, 365 S.W.3d at 329 (citing Presley, 130
S. Ct. at 725) (recognizing that Steadman reversed the trial court’s judgment “because the trial
court failed to consider all reasonable alternatives”).
B. Analysis
To close Benson’s voir dire without violating his Sixth Amendment right to a public trial,
the trial court had to consider all reasonable alternatives to closure, sensibly reject each one, and -3- 04-12-00159-CR
issue specific findings that justified the closure in light of controlling law. See Steadman, 360
S.W.3d at 509; see also Waller, 467 U.S. at 48; Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d at
329. We consider whether voir dire was closed, whether any closure was justified, and whether
the record contains specific findings to support the closure.
1. Was Voir Dire Closed?
Just before voir dire began, Benson asked that his parents be allowed to be present in the
courtroom during voir dire. The trial court stated that the venire panel filled all the seats in the
courtroom, and there was no room for any others to be present. Over Benson’s Presley
objection, the trial court denied Benson’s request and excluded his parents from voir dire. We
conclude that the trial court closed voir dire. Cf. Presley, 130 S. Ct. at 722; Steadman, 360
S.W.3d at 500–01. Therefore, we turn to the question of whether the closure was justified. See
Lilly, 365 S.W.3d at 329.
2. Was Closure Justified?
When the trial court announced its decision to exclude Benson’s parents because there
was no room for them in the courtroom, Benson did not propose any alternatives to closure, but
he had no burden to do so. See Steadman, 360 S.W.3d at 505 (“[T]here is no burden on the
defendant to proffer alternatives [to closure].”). The trial court was obligated to protect both
First and Sixth Amendment rights, and it was the trial court’s burden to consider all reasonable
alternatives to closure. See Presley, 130 S. Ct. at 723–25 (“Trial courts are obligated to take
every reasonable measure to accommodate public attendance at criminal trials.”); Steadman, 360
S.W.3d at 505. Though neither the State nor Benson proffered reasonable alternatives to closure,
the record does not show that the trial court considered any alternatives to closing voir dire.
Contra Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d at 329; Steadman, 360 S.W.3d at 505. At a
minimum, the trial court should have considered dividing the venire panel to reduce the number -4- 04-12-00159-CR
of people in the courtroom to allow for Benson’s parents to attend voir dire; it did not. Contra
Presley, 130 S. Ct. at 725 (identifying dividing the venire panel as a reasonable alternative a trial
court must consider).
Free access — add to your briefcase to read the full text and ask questions with AI
Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION No. 04-12-00159-CR
Henry BENSON III, Appellant
v.
The STATE of Texas, Appellee
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR10097 Honorable Angus McGinty, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: March 20, 2013
REVERSED AND REMANDED
Appellant Henry Benson III was convicted by a jury of one count of criminally negligent
injury to a child and one count of reckless injury to a child. On appeal, Appellant asserts that his
Sixth Amendment right to a public trial was violated when the trial court excluded his parents
from voir dire. We agree. We reverse the trial court’s judgment and remand this cause to the
trial court for a new trial. 04-12-00159-CR
BACKGROUND
Appellant Henry Benson III was charged with one count of intentionally and knowingly
causing serious bodily injury to a child by holding the child in hot water and one count of
recklessly causing serious bodily injury to a child by failing to check the bath water temperature
before placing the child in the water. Benson chose a jury trial for both phases: guilt/innocence
and punishment.
Immediately after the trial court called for the venire panel to be brought in, but before
the panel actually entered the courtroom, Benson asked that his parents be allowed to be present
in the courtroom during voir dire. The trial court responded that “we are actually not going to
have room. [The venire members] take up every single seat for jury selection.” Citing Presley v.
Georgia, 130 S. Ct. 721 (2010), Benson asserted that he had a “constitutional right” to have his
parents in the courtroom during voir dire. The trial court overruled Benson’s objection and
excluded his parents from voir dire.
The jury found Benson guilty of reckless injury to a child and assessed his punishment at
confinement in the Institutional Division of the Texas Department of Criminal Justice for a term
of five years. Benson raises three points of error on appeal including his assertion that the trial
court violated his Sixth Amendment right to a public trial.
RIGHT TO A PUBLIC TRIAL
In his first point of error, Benson argues that when the trial court excluded his parents
from the courtroom during voir dire, it violated his Sixth Amendment right to a public trial. 1
1 It its brief, the State concedes that the trial court closed voir dire, the closure was not justified, and the appropriate remedy is for this court to reverse the trial court’s judgment and remand the cause for a new trial.
-2- 04-12-00159-CR
A. Applicable Law
In a criminal prosecution, the defendant has a right to a public trial. See U.S. CONST.
amends. VI, XIV; Presley v. Georgia, 130 S. Ct. 721, 723 (2010) (per curiam) (reiterating that
the Sixth Amendment right to a public trial applies to the states via the Due Process Clause of the
Fourteenth Amendment); Steadman v. State, 360 S.W.3d 499, 504 (Tex. Crim. App. 2012).
“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”
Presley, 130 S. Ct. at 724; accord Steadman, 360 S.W.3d at 505. If a trial court wishes to close
voir dire, the trial court “must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, [it] must consider reasonable
alternatives to closing the proceeding, and it must make findings adequate to support the
closure.” See Waller v. Georgia, 467 U.S. 39, 48 (1984); accord Lilly v. State, 365 S.W.3d 321,
328–29 (Tex. Crim. App. 2012).
In considering reasonable alternatives, “trial courts are required to consider alternatives to
closure even when they are not offered by the parties.” Presley, 130 S. Ct. at 724; accord Lilly,
365 S.W.3d at 329; Steadman, 360 S.W.3d at 509. A closure is not justified if there are
reasonable alternatives to closure that the trial court cannot “sensibly reject.” See Steadman, 360
S.W.3d at 509; see also Presley, 130 S. Ct. at 724–25; Lilly, 365 S.W.3d at 333. If voir dire was
closed, we must reverse the trial court’s judgment if “the record fails to show that [the] trial court
considered all reasonable alternatives to closure.” Lilly, 365 S.W.3d at 329 (citing Presley, 130
S. Ct. at 725) (recognizing that Steadman reversed the trial court’s judgment “because the trial
court failed to consider all reasonable alternatives”).
B. Analysis
To close Benson’s voir dire without violating his Sixth Amendment right to a public trial,
the trial court had to consider all reasonable alternatives to closure, sensibly reject each one, and -3- 04-12-00159-CR
issue specific findings that justified the closure in light of controlling law. See Steadman, 360
S.W.3d at 509; see also Waller, 467 U.S. at 48; Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d at
329. We consider whether voir dire was closed, whether any closure was justified, and whether
the record contains specific findings to support the closure.
1. Was Voir Dire Closed?
Just before voir dire began, Benson asked that his parents be allowed to be present in the
courtroom during voir dire. The trial court stated that the venire panel filled all the seats in the
courtroom, and there was no room for any others to be present. Over Benson’s Presley
objection, the trial court denied Benson’s request and excluded his parents from voir dire. We
conclude that the trial court closed voir dire. Cf. Presley, 130 S. Ct. at 722; Steadman, 360
S.W.3d at 500–01. Therefore, we turn to the question of whether the closure was justified. See
Lilly, 365 S.W.3d at 329.
2. Was Closure Justified?
When the trial court announced its decision to exclude Benson’s parents because there
was no room for them in the courtroom, Benson did not propose any alternatives to closure, but
he had no burden to do so. See Steadman, 360 S.W.3d at 505 (“[T]here is no burden on the
defendant to proffer alternatives [to closure].”). The trial court was obligated to protect both
First and Sixth Amendment rights, and it was the trial court’s burden to consider all reasonable
alternatives to closure. See Presley, 130 S. Ct. at 723–25 (“Trial courts are obligated to take
every reasonable measure to accommodate public attendance at criminal trials.”); Steadman, 360
S.W.3d at 505. Though neither the State nor Benson proffered reasonable alternatives to closure,
the record does not show that the trial court considered any alternatives to closing voir dire.
Contra Presley, 130 S. Ct. at 725; Lilly, 365 S.W.3d at 329; Steadman, 360 S.W.3d at 505. At a
minimum, the trial court should have considered dividing the venire panel to reduce the number -4- 04-12-00159-CR
of people in the courtroom to allow for Benson’s parents to attend voir dire; it did not. Contra
Presley, 130 S. Ct. at 725 (identifying dividing the venire panel as a reasonable alternative a trial
court must consider). Like Presley, because the trial court failed to consider all reasonable
alternatives to closure, the closure was not justified. See id.; Steadman, 360 S.W.3d at 510.
3. Record Supports Closure?
Even assuming arguendo that the courtroom seating limits justified excluding Benson’s
parents from voir dire, the trial court still had the burden to produce specific findings of fact to
support the closure. Cf. Lilly, 365 S.W.3d at 333; Steadman, 360 S.W.3d at 505–06. The record
does not show that the trial court produced any findings on its reason for closing voir dire, or on
any alternatives, such as dividing the venire panel, that it considered but sensibly rejected. Cf.
Presley, 130 S. Ct. at 725. Thus, the trial court failed to produce findings of fact that supported
the closure. Cf. Lilly, 365 S.W.3d at 333; Steadman, 360 S.W.3d at 505–06.
C. Conclusion
The record does not show that the trial court considered all reasonable alternatives,
“sensibly reject[ed]” each of them, and issued specific findings that justify the closure in light of
controlling law. See Presley, 130 S. Ct. at 725 (all reasonable alternatives); Lilly, 365 S.W.3d at
329 (same); Steadman, 360 S.W.3d at 509 (sensibly reject); see also Waller, 467 U.S. at 48
(Waller test). Thus Benson’s Sixth Amendment right to a public trial was violated. See Lilly,
365 S.W.3d at 333; Steadman, 360 S.W.3d at 510–11. We sustain Benson’s first point of error.
REMAINING ISSUES
Because we have concluded that Benson’s Sixth Amendment right to a public trial was
violated, and the appropriate remedy is to reverse the judgment and remand the cause for a new
trial, we need not address Appellant’s other issues. See TEX. R. APP. P. 47.1. We overrule
Appellant’s remaining issues as moot. -5- 04-12-00159-CR
CONCLUSION
By closing voir dire without considering or being able to sensibly reject all reasonable
alternatives to closure, the trial court violated Appellant’s Sixth Amendment right to a public
trial. Therefore, we reverse the trial court’s judgment of conviction and remand this cause to the
trial court for a new trial.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
-6-