Ol Wallace, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 23, 2024
• Docket: 04-23-00794-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-23-00794-CR

Ol WALLACE Jr., Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2023CR3487 Honorable Velia J. Meza, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Rebeca C. Martinez, Chief Justice Liza A. Rodriguez, Justice Lori Massey Brissette, Justice

Delivered and Filed: December 23, 2024

AFFIRMED

Appellant Ol Wallace Jr. was charged with six counts including murder, aggravated assault

with a deadly weapon, and deadly conduct. A jury found him guilty on one count of murder,

assessing punishment of confinement for forty-five years. He now asks this court to reverse the

trial court’s judgment, asserting that his Sixth Amendment right to a public trial was violated. We

conclude the closure did not constitute a violation of his Sixth Amendment rights and, accordingly,

affirm the trial court’s judgment. 04-23-00794-CV

BACKGROUND

Wallace was charged by indictment with six counts including murder, aggravated assault

with a deadly weapon, and deadly conduct relating to an incident which occurred on January 17,

2022. The trial began with voir dire on July 14, 2023, and the presentation of evidence commenced

on July 31, 2023. The jury began deliberating on August 4, 2023.

On August 7, 2023, the trial court notified counsel that it would be conducting an in-camera

hearing to excuse a juror who notified the trial court over the weekend that she had contracted

COVID. The trial court closed the courtroom for the hearing and stated, “I am conducting an in-

camera hearing, and this is the best way to handle it. So this is not a public hearing because what

we’re going to discuss is not public information, and I don’t want it disseminated.”

During the in-camera hearing when the courtroom was closed, defense counsel objected

to the closure:

MR. YOUNG: I must object. It should be an open court. I would ask that my client’s— THE COURT: On what basis? MR. YOUNG: —family and the rest be allowed to come in. THE COURT: On what basis do you want me to fully disclose that a juror has contracted COVID? That is her health-protected information, and she has not given me authority to tell the whole world. So on what basis are you objecting to this in-camera hearing about this one issue? MR. YOUNG: On the fact that it’s not an open court because you’ve closed the court, Your Honor. THE COURT: I have closed it for the purposes of this hearing. I am about to bring the jurors in to tell them what we’re going to do. That part is also not going to be open, so you—your objection is noted for the record. I’m going to keep going forward.

During the short in-camera hearing, the trial court accepted, under seal, evidence of the

juror’s COVID test results and brought the alternate juror in to confirm he had been present through

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the entire testimony, the reading of the charge, and the instructions given to the jury. The trial court

then brought the entire jury into the closed courtroom and told them a juror had contracted COVID

and the alternate juror would participate in deliberations. The trial court told the jurors that they

would be given a larger conference room, encouraged them to socially distance and wear masks,

and gave them a copy of the Centers for Disease Control guidelines. The trial court went on to

provide instructions and reminders to the jury about smoke breaks, bathroom breaks, and how to

communicate to the court or to the bailiff. The courtroom was then reopened.

STANDARD OF REVIEW

Whether a defendant’s right to a public trial has been violated is a mixed question of law

and fact, but not one that turns on any issue of credibility or demeanor. Cameron v. State, 490

S.W.3d 57, 70 (Tex. Crim. App. 2016) (op. on reh’g). We review de novo whether there was a

closure impacting the defendant’s Sixth Amendment rights and, if so, whether the defendant’s

constitutional rights were violated. Williams v. State, 664 S.W.3d 266, 273 (Tex. Crim. App.

2022); Cameron, 490 S.W.3d at 70. If a defendant’s right to a public trial was violated, reversal is

mandated even without a showing of harm. See Johnson v. United States, 520 U.S. 461, 468–69

(1997); Steadman v. State, 360 S.W.3d 499, 510–11 (Tex. Crim. App. 2012).

ANALYSIS

Defendant’s Right to a Public Trial

“The Sixth Amendment to the United States Constitution provides that ‘[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial[.]’” Williams, 664

S.W.3d at 273 (Tex. Crim. App. 2022) (alterations in original) (quoting U.S. CONST. amend. VI).

That right is made applicable to the states by the Fourteenth Amendment. Id. (citing In re Oliver,

333 U.S. 257, 273 (1948)); see also U.S. CONST. amend. XIV, § 1. “A public trial is a trial which

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is open to the general public at all times.” Williams, 664 S.W.3d at 273 (quoting People v.

Woodward, 841 P.2d 954, 956 (Cal. 1992)). While the right to a public trial serves the accused, it

also ensures “that the public may see [the defendant] 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 and to the importance of their functions.” Id. (quoting Waller v.

Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)).

However, not every closure violates or even implicates a defendant’s Sixth Amendment

right. Id. The right to a public trial is not absolute and “may give way in certain cases to other

rights or interests, such as the defendant’s right to a fair trial or the government’s interest in

inhibiting disclosure of sensitive information.” Waller, 467 U.S. at 45

First, we must determine whether the courtroom was closed to the public in a manner that

encroached upon the defendant’s Sixth Amendment rights or whether it was so de minimis or trivial

so as not to do so. Williams, 664 S.W.3d at 276 (citing Peterson v. Williams, 85 F.3d 39, 40 (2d

Cir. 1996)). In the event the closure is one that impacts the Sixth Amendment right to a public

trial, then we must determine whether it was justified under the four factors set out in Waller:

(1) the party seeking to close the [trial] must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.

Williams, 664 S.W.3d at 274 (alteration in original) (quoting Waller, 467 U.S. at 48); accord

Cameron, 490 S.W.3d at 61.

But whether we are reviewing the totality of the circumstances to determine whether the

closure was de minimis or trivial or reviewing the closure under the Waller factors, we must heed

the Court of Criminal Appeals’ repeated emphasis that the circumstances in which it is appropriate

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to close a courtroom are rare. See, e.g., Cameron, 490 S.W.3d at 61; Williams, 664 S.W.3d at 283.

Only the narrowest of circumstances should support a holding that a closure did not violate a

defendant’s constitutional rights. Id.

De Minimis or Trivial

Where it is alleged that the closure is trivial, the review should be focused on whether the

closure deprived the defendant of the protections conferred by the Sixth Amendment. Williams,

664 S.W.3d at 277 (alteration in original) (quoting Peterson, 85 F.3d at 40). More specifically, we

should look at whether the totality of the circumstances “implicated the ‘values furthered by the

public trial guarantee;’ namely, ‘1) to ensure a fair trial; 2) to remind the prosecutor and judge of

their responsibility to the accused and the importance of their functions; 3) to encourage witnesses

to come forward; and 4) to discourage perjury.’” Id. (quoting Peterson, 85 F.3d at 43) (citing

Waller, 467 U.S. at 46–47). A closure so trivial that it does not impact those guarantees should not

be used to set aside the verdict of a jury.

“We must . . . avoid enforcing the public trial right in a manner so rigid and mechanistic

that we do more harm than good to the values underlying that right.” People v. Lujan, 461 P.3d

494, 499 (Colo. 2020) (quoting State v. Schierman, 192 Wash.2d 577, 438 P.3d 1063, 1081

(2018)). 1 “[A] rule requiring automatic reversal for every erroneous closure, no matter how

inconsequential to the ultimate fairness of the trial, is more likely to diminish than promote public

confidence in the judiciary.” Id.

Factors to consider include the duration of the closure, what occurred during the closure,

whether the proceedings were memorialized on the record or in open court, whether the closure

1 The Texas Court of Criminal Appeals recognized the many states and federal circuits that have adopted the triviality standard and specifically cited to the Colorado Supreme Court’s decision in People v. Lujan, 461 P.3d 494, 499 (Colo. 2020). Williams, 664 S.W.3d at 277 and n.11.

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was intentional and whether it was partial or total in nature. Williams, 664 S.W.3d at 277 (citing

Lujan, 461 P.3d at 498–99). “Applying these considerations, courts have frequently held that

inadvertent or brief closures, or the exclusion of a single spectator, are too trivial to implicate the

Sixth Amendment. On the other hand, courts have held that closures are not trivial where they are

less fleeting, are longer in duration, or exclude individuals during a key witness’ testimony.” Id.

In Williams, the decision first adopting the triviality standard in Texas, the closure – found

to be trivial - was a partial one. Id. at 273-74. One family member was excluded during the

testimony of one witness but was allowed to view a live video feed of the proceedings from a

neighboring courtroom. Id. In Peterson, the court focused on the fact that the closure was

inadvertent even though it occurred during the defendant’s own testimony. Peterson, 85 F.3d at

41. But, no one factor is dispositive and “no bright-lines apply.” Williams, 664 S.W.3d at 274.

Instead, as set forth above, the totality of the circumstances must be viewed in light of the “values

furthered by the public trial guarantee.” Peterson, 85 F.3d at 43; Williams, 664 S.W.3d at 277.

Here, the closure was complete and not partial, in that the trial court conducted the in-

camera hearing, excluding everyone but the parties and counsel so as not to disclose to the public

the private health information of the discharged juror or the exposure risk suffered by the

remaining jurors. It occurred after the presentation of evidence had concluded, closing arguments

had been made, and the jury had begun deliberations. In terms of length, the closure lasted a very

short time – a matter of minutes – just long enough to talk to the alternate juror and notify the

remaining jurors of the substitution as well as the steps to be taken to protect them from continued

exposure to COVID. Finally, everything that occurred during the closure was transcribed by a

court reporter.

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With these facts, it is hard to see how this closure could have meaningfully infringed upon

the defendant’s Sixth Amendment rights. In terms of ensuring a fair trial, the taking of evidence

had concluded. There was no objection to the discharge of the juror who contracted COVID or the

substitution of the alternate for deliberations. And, the alternate juror, ultimately substituted in for

deliberations, was originally empaneled in a public courtroom after a public voir dire proceeding.

Further, given that this closure occurred after the closing of evidence, it cannot implicate

the Sixth Amendment protections which encourage witnesses to come forward and discourage

perjury. See United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003) (closure was trivial, in part,

because it occurred after the presentation of evidence and, therefore, did not “infect any witnesses’s

testimony”); see also State v. Northcutt, 318 Mont. 81, 358 P.3d 179, 185 (2015) (concluding

closure did not impact guarantees relating to witnesses and perjury when it occurred after close of

evidence).

Finally, with regard to the last factor to consider, that the Sixth Amendment serves to

“remind the prosecutor and judge of their responsibility to the accused and the importance of their

functions,” the trial court at all times remained on the record, even during the in-camera hearing.

Having a bailiff and court reporter present, “while not a substitute for real-time public observation,

certainly served to remind the court. . . of [it’s] responsibilities and provide a check on possible

bias.” Lujan, 461 P.3d at 496 (quoting Schierman, 438 P.3d at1082).

Various courts have reviewed closures that involved the questioning of jurors and found

them to be trivial and not of constitutional concern. In Ivester, the court excluded spectators while

it briefly questioned one juror and then the entire jury about their safety concerns. Ivester, 316

F.3d at 960. The closure was held to be trivial. Id. As well, the Colorado Supreme Court held trivial

a closure where a trial court chose to reread a limiting instruction to the jury mid-deliberations

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outside the presence of everyone, including even the parties and their counsel. Lujan, 461 P.3d at

495-96. In fact, the United States Supreme Court has been clear that there is no constitutional

concern with a judge speaking to a juror outside the presence of spectators or even outside the

presence of the parties and their counsel. “The mere occurrence of an ex parte conversation

between a trial judge and a juror does not constitute a deprivation of any constitutional right.”

United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam)

(quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (Stevens,

J., concurring in judgment). “Because a trial judge may question a juror alone in chambers, without

the public present, a fortiori the judge may do so with the parties and counsel present.” Ivester,

316 F.3d at 959.

Based on the totality of the circumstances, we hold that the closure in this case was not of

such significance that it meaningfully infringed upon the values protected by the Sixth Amendment

right to a public trial. The closure was over in a matter of minutes, occurred after the close of

evidence and during jury deliberations, involved actions which could have been done in chambers

or at a bench conference, and was transcribed by a court reporter. In those circumstances, we hold

it was a de minimis or trivial closure.

CONCLUSION

Because the closure did not encroach upon the defendant’s Sixth Amendment rights, we

need not consider application of the Waller factors to determine if the closure was justified.

Accordingly, we affirm the trial court’s judgment.

Lori Massey Brissette, Justice

DO NOT PUBLISH

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