ACCEPTED 06-15-00084-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/7/2015 1:34:56 PM DEBBIE AUTREY CLERK
NO. 06-15-00084-CR NO. 06-15-00085-CR IN THE FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH COURT OF APPEALS 8/7/2015 1:34:56 PM DEBBIE AUTREY OF TEXAS Clerk
TEXARKANA, TEXAS _______________________________
MIKE ALVIN RUIZ, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE ___________________________________________________
On Appeal from the 8th Judicial District Court of Hopkins County, Texas
Trial Court Cause Nos. 1524438, 1524439, and 1524608 ___________________________________________________
BRIEF FOR THE APPELLANT ___________________________________________________
J. Edward Niehaus BODKIN NIEHAUS & DICKSON PLLLC 207 W. Hickory St. Suite 309 Denton, Texas 76201 TELEPHONE (940) 600-1295 Jason@BNDlegal.com STATE BAR No. 24074812 ATTORNEY FOR APPELLANT
Oral Argument Not Requested IDENTITY OF PARTIES AND COUNSEL 1. Trial Judge: The Honorable Eddie Northcutt presided over the trial of this
case, Presiding Judge of the 8th Judicial District Court of Hopkins County, 118 Church
St., Sulphur Springs, Texas 75804.
2. Appellant: Mike Alvin Ruiz, ID#25116, 298 Rosemont, Sulphur Springs, TX
75482.
3. Counsel for Appellant:
a. The Appellant was represented at the Trial Court by Roland Ferguson, 1804
Woodbridge Dr., Sulphur Springs, Texas 75482.
b. The Appellant is represented on appeal by J. Edward Niehaus, 207 W. Hickory
St. Suite 309, Denton, Texas 76201.
4. Counsel for the State of Texas:
a. The State of Texas was represented by Will Ramsay Hopkins County District
Attorney, and Matthew Harris, Hopkins County Assistant District Attorneys at the trial
court level.
b. The State is represented on appeal by and through Will Ramsay, Criminal
District Attorney of Hopkins County, 110 Main St., Sulphur Spring, Texas 75482.
STATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument as the decisional process of this Court
would not be significantly aided by oral argument since the facts and legal arguments
Appellant’s Opening Brief i are adequately presented in the brief submitted to this Court by the Appellant.
Appellant’s Opening Brief ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................... i STATEMENT REGARDING ORAL ARGUMENT...................................................... i TABLE OF CONTENTS ................................................................................................... iii INDEX OF AUTHORITIES ............................................................................................. iv STATEMENT OF THE CASE........................................................................................... v ISSUES PRESENTED ......................................................................................................... v STATEMENT OF FACTS ................................................................................................... 1 SUMMARY OF THE ARGUMENT ................................................................................. 3 ARGUMENT ......................................................................................................................... 3 APPELLANT’S ISSUE NO. ONE ..................................................................................... 3 The Court committed reversible error when it closed the courtroom to members of Appellants family during contested proceedings........................................................... 3 Standard of Review ................................................................................................................ 3 Fact Statement......................................................................................................................... 4 ARGUMENTS and AUTHORITIES ................................................................................. 5 1) Appellant is Constitutionally Entitled to an Open Proceeding ....................... 5 2) Appellant’s Right to Open Proceeding is Fundamental ................................... 7 3) Common Law History is Consistent with the Fundamental Nature of Open Proceedings .................................................................................................................. 8 4) Appellant need not show harm resulting from the Court’s closure of the proceedings. .................................................................................................................... 10 5) Conclusion and Requested Relief...................................................................... 12
Appellant’s Opening Brief iii INDEX OF AUTHORITIES Cases Cameron v. State, 415 S.W.3d 404 (Tex. App.—San Antonio 2013) ................................... 5 Douglas v. Wainwright, 714 F.2d 1532 (CA11 1983) ........................................................ 7, 11 Estes v. Texas, 381 U.S. 532 (1965)......................................................................................... 5 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) .............................................. 7, 8 In re Oliver, 333 U.S. 257 (1948) ......................................................................................... 5, 7 Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)............. 7 Levine v. United States, 362 U.S. 610 (1960) ......................................................................... 11 Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). ...................................................... 7 People v. Jones, 47 N. Y. 2d 409, 391 N. E. 2d 1335 (1979) ................................................ 11 Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010) (per curiam) .. 5 Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) .................................................................................................................................... 6, 8, 9, 10 State v. Sheppard, 182 Conn. 412, 418, 438 A. 2d 125, 128 (1980) ................................... 11 Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012).................................................. 7 United States ex rel. Bennett v. Rundle, 419 F.2d 599 (CA3 1969) .................................... 7, 11 Waller v. Ga., 467 U.S. 39, 104 S.Ct. 2210 (1984) ........................................................ passim
Rules TEX. R. APP. PRO. 9(i) ....................................................................................................... 12 TEX. R. APP. PPR. 43.2(d). ................................................................................................ 12 TEX. R. APP. PRO. 44.2(a) ............................................................................................... 3, 5 Tex.R.Evid. 614....................................................................................................................... 4
Treatises 1 T. Cooley, Constitutional Limitations 647 (8th ed. 1927)............................................... 5 3 W. Blackstone Commentaries *364 ................................................................................... 9 M. Hale, The History of the Common Law of England 342 (6th ed. 1820) ................. 9 Smith, De Republica Anglorum, at 101 ............................................................................... 9 T. Smith, De Republica Anglorum 96 (Alston ed. 1906)................................................... 9 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956).................................... 8
Constitutional Provisions Tex. Const. Art. I, § 13 .......................................................................................................... 5 U.S. CONST. amend. VI ........................................................................................................ 5
Appellant’s Opening Brief iv STATEMENT OF THE CASE Appellant was charged by indictments with Evading Arrest by Motor Vehicle
(Cause no. 1524439) and Aggravated Assault with Deadly Weapon (Cause No. 1524438
dismissed and re-indicted with one less enhancement paragraph as Cause No. 1524608),
both of which were pending in the 8th Judicial District Court, the Honorable Eddie
Northcutt, Presiding, (RR v2 p7). On April 30, 2015, Appellant pled guilty without
sentencing recommendation to the offenses as charged in the indictment and a
sentencing hearing was conducted on May 5, 2015, (CR1 53; CR2 23; RR v3 p 16 – 17;
v4 p 4 – 112). The Court found the evidence sufficient to support the guilty plea, (RR
v3 p19 – 20). After hearing testimony, the Court set punishment on the Evading at
twenty (20) years confinement (CR1 50 – 52; RR v4 p105) and the Aggravated Assault
with Deadly Weapon at thirty (30) years confinement, (CR2 47 - 49; RR v4 p107).1
Appellant timely filed a Notice of Appeal, (CR1 56 – 57; CR2 54 – 55).
ISSUES PRESENTED 1. Did the Court err by closing the proceedings to Appellant’s family during
sentencing hearing without conducting inquiry regarding other available methods for
ensuring the orderly conduct of the case?
1 CR1 refers to the Clerk’s Record in 1524439; CR2 refers to the Clerk’s Record in 1524608, RR refers to the Reporter’s Record.
Appellant’s Opening Brief v NO. 06-15-00084-CR NO. 06-15-00085-CR IN THE
SIXTH COURT OF APPEALS
OF TEXAS
THE STATE OF TEXAS, APPELLEE ___________________________________________________
On Appeal from the 8th Judicial District Court of Hopkins County, Texas
Trial Court Cause Nos. 1524438, 1524439, and 1524608 ___________________________________________________
OPENING BRIEF FOR THE APPELLANT ___________________________________________________ STATEMENT OF FACTS Appellant entered an open plea of guilty to the trial court on two cases, one
alleging the offense of evading arrest with a motor vehicle and the other alleging
aggravated assault with a deadly weapon, (RR v3 p16 – 20). The Court found the plea
to be substantiated by the evidence, and after a sentencing hearing assessed punishment
at twenty (20) years confinement for the evading arrest charge and thirty (30) years
Opening Brief of the Appellant Pg.1 confinement for the aggravated assault charge, (CR1 50 – 52; CR2 47 – 49; RR v4 p105
– 108). Appellant does not contest the sufficiency of the evidence substantiating his
plea.
Appellant is illiterate, neither able to read nor write. While incapable of reading
or writing, Appellant is not mentally incompetent, and was competent to enter his plea,
(RR v3 p5 – 20). A competency finding is consistent with other court’s findings prior
to Appellant entering previous plea agreements in the cases used to enhance Appellant’s
sentencing range, (RR v3 p5 – 20).
The State’s evidence consisted mostly of Appellant’s prior criminal history, with
brief testimony given by the officers on scene the night the allegations occurred, (RR
v4 p11 – 32). Officer Zachary Brown, the complainant, approached Appellant’s car to
conduct a traffic stop, (RR v4 p34 – 36).
During the traffic stop, the officer reached into Appellant’s vehicle, (RR v4 p38
– 44). While the officer was reaching into the vehicle, Appellant applied pressure to the
accelerator, causing the car to move forward with the Officer holding on to the door,
(RR v4 p46 – 48). Faced with the Hobson’s Choice between holding on or being run
over, the officer elected to hold onto the vehicle until the centrifugal force became too
great, (RR v4 p46 – 48; 57). The Officer sustained cuts and bruises when thrown from
the vehicle, (RR v4 p47).
Officer Josh Shufeldt observed the incident, (RR v4 p55 – 58). He also observed
Appellant wreck out the vehicle and flee, (RR v4 p57 – 58).
Opening Brief of the Appellant Pg.2 Appellant presented witnesses in mitigation of the sentence, and also elected to
testify, (RR v4 p62). He testified about his lack of education, his time in prison, his
tattoos, and the absence of quality role models in his life, (RR v4 p63 – 68). During
Appellant’s testimony, his mother was removed from the courtroom, (RR v4 p68 – 69).
After Appellant’s testimony, his mother also testified regarding the absence of
positive role models in Appellant’s live, the absence of his father, and Appellant’s
educational challenges, (RR v4 p85 – 90).
SUMMARY OF THE ARGUMENT Appellant sole issue asserts that the Court committed reversible error by closing
the courtroom to his family during the sentencing phase of his contested open plea
hearing, and that said error is fundamental constitutional error not requiring
contemporaneous objection or showing of harm.
ARGUMENT APPELLANT’S ISSUE NO. ONE The Court committed reversible error when it closed the courtroom to members of Appellants family during contested proceedings.
Standard of Review
“If the appellate record in a criminal case reveals constitutional error that is
subject to a harmless error review, the court of appeals must reverse a judgment of
conviction or punishment unless the court determines beyond a reasonable doubt that
the error did not contribute to the conviction or punishment,” TEX. R. APP. PRO.
Opening Brief of the Appellant Pg.3 44.2(a)
Fact Statement
This is an appeal from a contested open plea proceeding, (RR v2-v5). Appellant
pled guilty to Aggravated Assault with Deadly Weapon and Evading Arrest, (RR v3 p15
– 20).
During the plea hearing and subsequent sentencing, neither side invoked “the
Rule” [Tex.R.Evid. 614: Sequestration of Witnesses], (RR v4 p9).
During presentation of the Defense case, Appellant took the stand and testified,
(RR v4 p63). During that testimony, Appellant’s mother was removed from the
courtroom after the following exchange:
[Court] Let me see the attorneys. (The following occurred at the bench.) [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. [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. (Bench conference concluded.) [Court] Mr. Ferguson, you may continue. (RR v4 p68 – 69).
The record is silent before this point regarding whether the Court previously
Opening Brief of the Appellant Pg.4 instructed Ms. Ruiz to cease and desist her conduct or whether the Court contemplated
any alternative to removing Appellant’s mother from the courtroom. Neither party
requested her removal. The record is silent regarding the presence of any other people
being present in the courtroom at the time Appellant’s mother was removed.
Ms. Ruiz was allowed back into the courtroom to testify, (RR v4 p85). The record
is unclear if she was allowed to remain for closing argument or sentencing.
ARGUMENTS and AUTHORITIES
Appellant argues that the Court violated his right to public proceedings, as
guaranteed by Tex. Const. Art. I, § 13 and the Sixth Amendment to the United States
Constitution. Appellant asserts constitutional error. See TEX. R. APP. PRO. 44.2(a)
1) Appellant is Constitutionally Entitled to an Open Proceeding
Under the Sixth Amendment, an accused has the right to a public trial in all
criminal prosecutions. U.S. CONST. amend. VI; Presley v. Georgia, 558 U.S. 209, 212, 130
S. Ct. 721, 175 L. Ed. 2d 675 (2010) (per curiam) (Sixth Amendment right to public trial
was created for benefit of the accused). The right extends to the jury selection phase
of trial, including voir dire of prospective jurors. Presley, 558 U.S. at 212-13. See also
Cameron v. State, 415 S.W.3d 404, 409 (Tex. App.—San Antonio 2013).
"The requirement of a public trial is for the benefit of the accused; that the
public may see he is fairly dealt with and not unjustly condemned, and that the presence
of interested spectators may keep his triers keenly alive to a sense of their responsibility
Opening Brief of the Appellant Pg.5 and to the importance of their functions. ..." Waller v. Ga., 467 U.S. 39, 46, 104 S.Ct.
2210, 2215 (1984) quoting In re Oliver, 333 U.S. 257, 270, n. 25 (1948), quoting 1 T. Cooley,
Constitutional Limitations 647 (8th ed. 1927)). Accord, Estes v. Texas, 381 U.S. 532, 588
(1965) (Harlan, J., concurring)2; In re Oliver, 333 U.S., at 270.3 Appellant asserts that the
Court’s removal of his mother from the courtroom during his testimony is in violation
of his right to an open proceeding.
The longstanding right to a public trial serves important societal interests of
ensuring fairness and accountability in the judicial system. Press-Enterprise Co. v. Superior
Court of Cal., 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)(First
Amendment also guarantees public trial). The right to a public trial is not absolute,
however, and must give way to other competing rights or interests under certain, rare
circumstances. Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31
(1984)(emphasis added). Accordingly, Appellant does not assert that there is never a
circumstance in which his mother could be removed from court. Appellant asserts that
the specific circumstances here do not rise to the level of compelling concern that
would necessitate his mother’s removal from the courtroom.
In Waller, the Supreme Court provided standards for courts to apply before
2 "Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." 3 "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."
Opening Brief of the Appellant Pg.6 excluding the public from any stage of a criminal trial, stating, "the party seeking to
close the hearing must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, the trial court must
consider reasonable alternatives to closing the proceeding, and it must make findings
adequate to support the closure." Id. at 48 (emphasis added).
Here, the Court closed the proceedings to Appellant’s mother, the only source
of comfort and security in Appellant’s life. The Court did so without request from a
party, and without adequate investigation regarding other available options other than
removing her from the courtroom.
2) Appellant’s Right to Open Proceeding is Fundamental
Violation of a criminal defendant's right to a public trial is structural error that
does not require a showing of harm. Johnson v. United States, 520 U.S. 461, 468-69, 117
S. Ct. 1544, 137 L. Ed. 2d 718 (1997); Steadman v. State, 360 S.W.3d 499, 510-11 (Tex.
Crim. App. 2012). Counsel’s failure to contemporaneously object is irrelevant where the
error is structural in nature. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.
1993).
The right to open proceedings is considered to be fundamental because of the
inherit value in open proceedings in ensuring transparency, reducing corruption, and
increasing the public’s faith in the system. “In addition to ensuring that judge and
prosecutor carry out their duties responsibly, a public trial encourages witnesses to
Opening Brief of the Appellant Pg.7 come forward and discourages perjury.” Waller v. Ga., 467 U.S. 39, 46, 104 S.Ct. 2210,
2215 (1984)(emphasis added). See also In re Oliver, supra, at 270, n. 24; Douglas v.
Wainwright, 714 F.2d 1532, 1541 (CA11 1983), cert. pending, Nos. 83-817, 83-995; United
States ex rel. Bennett v. Rundle, 419 F.2d 599, 606 (CA3 1969). Closed proceedings,
although not absolutely precluded, must be rare and only for cause shown that
outweighs the value of openness. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596
(1982), we stated:
[The] circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. Id., at 606-607; Press- Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 509-10, 104 S.Ct. 819, 823- 24 (1984).
The defendant's Sixth Amendment right to a public trial applies beyond solely a
trial on the merits. See Waller v. Ga., 467 U.S. 39, 43, 104 S.Ct. 2210, 2214 (1984).
Included in Appellant’s right to a public trial is Appellant’s right to a public sentencing
hearing.
3) Common Law History is Consistent with the Fundamental Nature of Open Proceedings
W. Holdsworth’s writings, including History of English Law, shed light on
Appellant’s position that he is entitled to an open punishment proceeding.
The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before "moots," a town
Opening Brief of the Appellant Pg.8 meeting kind of body such as the local court of the hundred or the county court. Attendance was virtually compulsory on the part of the freemen of the community, who represented the "patria," or the "country," in rendering judgment. The public aspect thus was "almost a necessary incident of jury trials, since the presence of a jury . . . already insured the presence of a large part of the public." As the jury system evolved in the years after the Norman Conquest, and the jury came to be but a small segment representing the community, the obligation of all freemen to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the 14th and 15th centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges. Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 505-06, 104 S.Ct. 819, 821-23 (1984) citing 1 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956)(internal citations omitted).
Since the Norman Conquest, the accused has generally enjoyed the right to
challenge jurors in open court at the outset of the trial. This preference for open courts
was then embodied in both the Texas and United States constitutions. Although there
appear to be few contemporary accounts of the process of jury selection of that
day, one early record written in 1565 places the trial "[in] the towne house, or in some
open or common place." Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 506-07,
104 S.Ct. 819, 821-23 (1984) quoting T. Smith, De Republica Anglorum 96 (Alston ed.
1906). Smith explained that "there is nothing put in writing but the enditement":
"All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide." Smith, De Republica Anglorum, at 101 (emphasis in Press-Enter).
The presence of bystanders from the public served another purpose according
to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing
Opening Brief of the Appellant Pg.9 at the trial, "either party may pray a tales." See Press-Enter. Co. v. Superior Court of Cal., 464
U.S. 501 (1984) citing 3 W. Blackstone Commentaries *364; see also M. Hale, The History
of the Common Law of England 342 (6th ed. 1820). A "tales" was the balance, or
number, of people necessary to supply the deficiency.
The presumptive openness of the jury selection process in England carried over
into proceedings in colonial America. See Press-Enter. Co. v. Superior Court of Cal., 464 U.S.
501, 507-08, 104 S.Ct. 819, 821-23 (1984). For example, several accounts noted the need
for talesmen at the trials of Thomas Preston and William Wemms, two of the British
soldiers who were charged with murder after the so-called Boston Massacre in 1770.
Public jury selection thus was the common practice in America when the Constitution
was adopted. See Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 507-08, 104 S.Ct.
819, 821-23 (1984).
By excluding Appellant’s mother from the courtroom during contested portion
of the hearing, the Court departed from centuries of tradition. Appellant challenges
this action by the Court. Appellant readily admits that he cannot show specific prejudice
aside from the constitutional violation. Appellant is entitled to public proceedings, and
at least in part did not receive them, (RR v4 p68 – 69; 85).
4) Appellant need not show harm resulting from the Court’s closure of the proceedings.
In Waller, the Supreme Court provided standards for courts to apply before
excluding the public from any stage of a criminal trial, stating, "the party seeking to
Opening Brief of the Appellant Pg.10 close the hearing must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, the trial court must
consider reasonable alternatives to closing the proceeding, and it must make findings
adequate to support the closure." Id. at 48 (emphasis added).
This Court is presented the unique circumstance where the Court appears to
have closed proceedings sua sponte (there is no record of a request form either party to
remove Ms. Ruiz). In that circumstance, the Court must still contemplate alternatives
to closing the proceeding. See generally Waller v. Ga., 467 U.S. 39. The failure to do so
violates Appellant’s right to open proceedings, and is reversible error without a showing
of harm.
The United States Supreme Court has recognized the impossibility of showing
harm resulting directly from the court closing a proceeding. “[T]he defendant should
not be required to prove specific prejudice in order to obtain relief for a violation of
the public-trial guarantee.” Waller v. Ga., 467 U.S. 39, 49, 104 S.Ct. 2210, 2217 (1984)
See, e.g., Douglas v. Wainwright, 714 F.2d 1532, 1542 (CA11 1983) (citing cases). See also
Levine v. United States, 362 U.S. 610, 627, n. (1960) (BRENNAN, J., dissenting) ("[The]
settled rule of the federal courts [is] that a showing of prejudice is not necessary for
reversal of a conviction not had in public proceedings").
The general view appears to be that of the Court of Appeals for the Third
Circuit. It noted in an en banc opinion that a requirement that prejudice be shown "would
in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be
Opening Brief of the Appellant Pg.11 difficult to envisage a case in which he would have evidence available of specific injury."
Waller v. Ga., 467 U.S. 39, 49, 104 S.Ct. 2210, 2217 (1984) citing United States ex rel.
Bennett v. Rundle, 419 F.2d 599, 608 (1969). While the benefits of a public trial are
frequently intangible, difficult to prove, or a matter of chance, the Framers plainly
thought them nonetheless real. See also State v.Sheppard, 182 Conn. 412, 418, 438 A. 2d
125, 128 (1980) ("Because demonstration of prejudice in this kind of case is a practical
impossibility, prejudice must necessarily be implied"); People v. Jones, 47 N. Y. 2d 409,
416, 391 N. E. 2d 1335, 1340 (1979) ("The harmless error rule is no way to gauge the
great, though intangible, societal loss that flows" from closing courthouse doors).
5) Conclusion and Requested Relief
The Court erred by closing the proceedings to Appellant’s mother, Ms. Ruiz,
without undertaking analysis of any other available options. The Court should have
admonished Ms. Ruiz regarding her conduct before closing the proceedings to her.
There is no record of the Court admonishing Ms. Ruiz regarding her conduct. By failing
to explore other available options, the Court failed in its duty to ensure compliance with
Appellant’s constitutional right to open proceedings.
Appellant requests this Honorable Court to reverse his case and remand for new
sentencing proceedings, Tex. R. App. Pro. 43.2(d).
PRAYER Appellant prays that he be granted the relief requested under each respective
Opening Brief of the Appellant Pg.12 issue.
Respectfully submitted,
/s/J. Edward Niehaus J. Edward Niehaus
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief is in all ways compliant with
Tex.R.App.Pro. 9(i) with a total calculated word count of 4,144.
CERTIFICATE OF SERVICE I hereby certify that a true and correct electronic copy of the foregoing
Appellant’s Brief was electronically filed in accordance with the Texas Supreme Court
e-filing mandate and was electronically served on all parties on Friday, August 07, 2015
and further certify that a hard copy has been mailed to Appellant at Appellant’s last
known address within the TDCJ.
Opening Brief of the Appellant Pg.13