Lilly v. State, PD–0658–11.

• Decision Date: 18 April 2012
• Docket Number: No. PD–0658–11.,PD–0658–11.
• Citation: 365 S.W.3d 321
• Parties: Conrad LILLY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

365 S.W.3d 321

Conrad LILLY, Appellant,

v.The STATE of Texas.

No. PD–0658–11.

Court of Criminal Appeals of Texas.

April 18, 2012.

Unconstitutional as Applied

V.T.C.A., Government Code § 24.012(e)

Roger Donley, Hunstville, for Appellant.

Melinda Fletcher, Special Prosecution Unit, Amarillo, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Appellant, Conrad Lilly, was charged with two counts of assault on a public servant. He now asks this Court to reverse the judgment of the court of appeals, which held that his trial proceedings, which were convened at the prison-chapel courtroom, were not closed to the public, that a violation of the Establishment Clause is not structural error, and that the violation of the Establishment Clause in his case was harmless. Lilly v. State, 337 S.W.3d 373, 380, 384 (Tex.App.-Eastland 2011). We hold that Appellant showed that his trial was closed to the public, and because that closure was not justified, we reverse the judgments of the court of appeals and trial court. We remand this cause to the trial court for a new trial.

Background

Appellant was an inmate at the French Robertson Unit (the Unit), a maximum-security prison operated by the Texas Department of Criminal Justice. While incarcerated, Appellant was indicted on two counts of assault on a public servant. SeeTex. Penal Code § 22.01(b)(1). The trial judge arraigned Appellant at the Unit's chapel,¹ which also serves as a branch courthouse for Jones County. SeeTex. Loc. Gov't CodeE § 292.0231 (allowing a commissioners court of certain counties to “provide for, operate, and maintain a branch courthouse outside the county seat”); see also Lilly, 337 S.W.3d at 376. After his arraignment, Appellant filed a pretrial motion to transfer his trial proceedings from the chapel courthouse to the public county courthouse in Anson. The trial judge held a joint hearing on that motion, ² and at the conclusion of the hearing,the trial court overruled Appellant's motion to transfer. Appellant then pled guilty in a bench trial pursuant to a plea bargain and was sentenced to six years' confinement.

On appeal, Appellant argued that the trial court erred in overruling his motion to transfer his proceedings because he had met his burden to show that his trial was closed to the public and that his Sixth Amendment right to a public trial was violated. Lilly, 337 S.W.3d at 377. He also argued that holding his trial proceedings in the prison-chapel courtroom at the Unit violated the Free Exercise Clause and the Establishment Clause and that a violation of the Establishment Clause is structural error that does not require a showing of harm. Id. The court of appeals disagreed. It held that Appellant failed to prove that his trial was closed to the public because he offered no evidence that anyone was actually prohibited from attending his trial and because he produced no evidence that members of the public were “dissuaded from attempting” to attend his trial due to its location. Id. at 380. It also held that, although convening Appellant's trial in the Unit's chapel violated the Establishment Clause, that violation was harmless and did not contribute to Appellant's conviction. Id. at 384;see also Tex.R.App. P. 44.2(a).

We granted Appellant's petition for discretionary review on two grounds: (1) whether “[t]he Eleventh Court of Appeals erred in finding that Appellant did not show that the prison chapel was not open to the public[,]” ³ and (2) whether “[t]he Court of Appeals correctly found that the State violated the Establishment Clause by conducting [Appellant]'s court proceedings in the chapel, but it erred when it found that this violation was not structural error and dismissed the violation as ‘harmless.’ ” Because we sustain Appellant's first ground for review and remand this cause for a new trial, we do not address his second claim.

Arguments of the Parties

A. State

The State first argues that Appellant waived his claim that his right to a public trial was violated. Specifically, the State argues that, although Appellant initially preserved his Sixth Amendment complaint when the trial court overruled his motion to transfer, he later waived his preserved open-trial claim when, as part of his plea bargain agreement, Appellant signed documents acknowledging that his waiver and stipulations were entered in “open court.”

Next, the State contends that Section 24.012(e) of the Texas Government Code, which authorizes a district judge to hear certain nonjury matters at a correctional facility, is constitutional.⁴ It agrees with Appellant that Article V, Section 7, of the Texas Constitution generally requires that court be held at the county seat.⁵ However, the State reasons that the same provision also allows for exceptions “as otherwise provided by law,” and Section 24.012(e) of the Texas Government Code and Section 292.0231 of the Texas Local Government Code are two such exceptions.

The State also argues that the court of appeals correctly concluded that Appellant failed to carry his burden to show that his trial was closed to the public. To support its argument, the State notes that the docket for the prison-chapel courtroom was posted at the Jones County Courthouse a month prior to the pretrial hearing and that the docket reflected that the hearing would be at the Unit. The State also disputes Appellant's assertion that a person wishing to attend prison-chapel trial proceedings would have to be on a prisoner's approved visitor list to enter the Unit, and it points to the testimony of the assistant warden that anyone could be admitted to the Unit with the permission of the on-duty warden. Moreover, the State argues that “security is security ...” and, even though Appellant's bench trial was held in a prison, the rules of the prison do not transform the branch courthouse into a non-public place. Hernandez v. State, 914 S.W.2d 218, 221–22 (Tex.App.-El Paso 1996, pet. ref'd).

Finally, the State avers that the court of appeals was correct when it held that prisons have the right to limit access to the premises, and it draws a distinction between non-public court proceedings, and court proceedings such as Appellant's, that no one chooses to attend.

B. Appellant

Appellant disagrees with the State's waiver argument, and he contends that he preserved his Sixth Amendment claim because he objected to the prison trial proceedings, he filed two motions challenging the prison proceedings, the trial judge explicitly ruled against his motion, and the trial judge certified his right to appeal. See Tex.R.App. P. 33.1; see also Montanez v. State, 195 S.W.3d 101, 104–05 (Tex.Crim.App.2006) (holding that certification of appeal is some evidence that the trial court implicitly overruled the defendant's motion).

Appellant also argues that he has a right to a public trial under the Texas Constitution and the Texas Code of Criminal Procedure, in addition to the Sixth Amendment, and he contends that his right was violated when the trial court sua sponte convened his trial in the prison-chapel courtroom. SeeTex. Const. art. I, §§ 10, 13; Tex Code Crim. Proc. art. 1.24; see alsoTex. Gov't Code § 24.012(e) (authorizing district court judges to hold certain trial proceedings in correctional facilities). However, Appellant has failed to separate his federal and state issues into separate grounds and to provide individual substantive analysis or authorities to support his claim. Because Appellant did not adequately brief his state constitutional arguments, we do not address them. See DeBlanc v. State, 799 S.W.2d 701, 706 (Tex.Crim.App.1990).

Regarding his federal constitutional claim, Appellant contends that holding his bench trial in the Unit branch courthouse violated his Sixth Amendment right to a public trial because “prisons are not open to the public, and are more like military zones than public places.” Adderley v. Florida, 385 U.S. 39, 42, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); see Gannett Co. v. DePasquale, 443 U.S. 368, 392, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); see also Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). However, it is well settled that courts will refrain from reaching the merits of a facial challenge unless that claim is essential to the appeal. Ex parte Salfen, 618 S.W.2d 766, 770 (Tex.Crim.App.1981). In this case, Appellant's facial challenge to Section 24.012(e) is not essential to his appeal because we grant relief on his as-applied claim. Thus, we need not address this aspect of Appellant's claim.

Alternatively, Appellant argues that the restrictive admittance policies in place at the Unit had the cumulative effect of closing his trial to the public. To support his argument, Appellant cites evidence admitted at the pretrial hearing regarding the double razor fences, locked metal doors, and high-security procedures. He also cites testimony that only people who were already on an inmate-defendant's approved visitor list could enter the branch courthouse to attend proceedings, that only ten names can appear on that list at any given time, and that the visitor list can be modified only once every six months. In addition, Appellant refers to testimony that the media and other members of the public would have been prohibited from entering unless TDCJ officials in Huntsville preapproved the media's request. Appellant also notes that people attempting to attend could be denied entrance if they wore offensive clothing and that unaccompanied minors and people released from confinement within the last two years were unable to enter the Unit at all.

Waiver of Sixth Amendment Claim

Although the State has failed to cite any authority for its waiver proposition and this question appears to be novel for this Court, we are not without relevant case law to guide our...