By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
The “As The Judges Saw It” column, I was told, is meant to summarize a recent appellate opinion that impacts the day-to-day work of prosecutors with a bit of levity. “I can absolutely do that,” I thought, quickly looking up the word “levity.” “Levitation is my strongest asset. I can levitate with the best of them—no prob.”
On January 15, the Court of Criminal Appeals issued its opinion in the non-death penalty capital murder case of Thomas Dixon v. State, PD-0048-19. And here I have to drop the levity for a moment, as the facts are serious.
The murder, the trial, and appeal to the Seventh Court
The underlying case dealt with a murder for hire. On July 10, 2012, a man named David Shepard killed Lubbock physician Joseph Sonnier in the garage of his home by stabbing and shooting him. Shepard pleaded no contest to capital murder in return for an agreed sentence of life without parole. The State alleged that Shepard was hired to murder Sonnier by plastic surgeon Thomas Dixon because Sonnier was dating Dixon’s former girlfriend and Dixon wanted her back.
After a mistrial, Dixon was tried and convicted of two counts of capital murder in the 140th District Court in Lubbock. Dixon’s attorneys appealed to the Seventh Court of Appeals in Amarillo, alleging an impressive 50 points of error. Two broad groupings of those issues were of particular interest to the Seventh Court: the denial of the defendant’s motion to suppress cell-site location information (CSLI) showing his whereabouts on certain dates (which is bad for the State) and the denial of a public trial (which is even worse for the State).
At trial, the State had admitted 51 pages of records from Shepard’s cellphone provider, showing both CSLI information placing Shepard in Lubbock and showing that he and Dixon had exchanged hundreds of messages in the weeks prior to the murder, some of which were about the victim. The State also, over the defendant’s objection, introduced CSLI from the defendant’s phone, which it had obtained without a warrant. At the time, this was entirely understandable; the Court of Criminal Appeals and every federal circuit that had considered the issue had uniformly held that you didn’t need a warrant for CSLI. Unfortunately for the State, in 2018 the U.S. Supreme Court issued its 5-4 landmark opinion in Carpenter v. United States, which held that obtaining cellphone records showing the physical locations of cellphones by tracking through cell towers without a warrant was a Fourth Amendment no-no. This is what’s known in the biz as a big “oh, crap” moment. The Seventh Circuit held that Carpenter mandated the exclusion of the CSLI, applied a constitutional harm standard, and held that the improper introduction of the CSLI required reversal. For the State, that’s bad.
Arguably even worse for the State was the second issue: denial of a public trial. Dixon claimed that members of the public were excluded at three points in the trial: when a sketch artist was told by a bailiff during jury selection that there was no room for him; when the trial court asked spectators “if everybody would please excuse yourself from the courtroom except for the attorneys” during an argument between the lawyers; and when several people were prevented from coming into the courtroom during closing argument by deputies who told them that the trial court judge “doesn’t want anyone standing.” The reason that this is an arguably even worse problem is that denial of a public trial is one of the very few instances of structural error, and structural error is never harmless.
Almost all errors in the trial court are subject to some sort of harmless error analysis—egregious harm, some harm, non-constitutional harm, or constitutional harm—depending on what kind of error it is. Not so with structural error that “goes to the very integrity of the legal system” and “affect[s] the framework within which the trial proceeds.” If structural error is committed in the trial court, no harm analysis applies and reversal is automatically required. The upshot is that the wrongful exclusion of members of the public from a trial can result in a new trial for the defendant, even with no showing that the defendant’s case was harmed. The Seventh Court initially abated the case back for a finding of facts from the trial court to determine if the court was closed on those three occasions for narrow and constitutionally permissible reasons, but it later reversed and remanded for a new trial after finding the trial court’s reasons insufficient.
The CCA weighs in
But that’s not As The Judges Saw It at the Court of Criminal Appeals. Writing for a unanimous court, Presiding Judge Keller agreed with the well-briefed arguments of Assistant Criminal District Attorney Lauren Murphree regarding both the harm analysis in the CSLI issue and error preservation in the public trial issue. Judge Keller first held that even assuming the CSLI evidence was erroneously admitted, it was “clearly harmless,” even under the relatively rigorous constitutional harm standard.
The Seventh Court had held that the CSLI evidence served to both demonstrate circumstantial evidence of Dixon’s complicity in the murder (by showing that he and Shepard worked closely together), and to impeach Dixon’s testimony by showing that he was untruthful with police when he said that he wasn’t in Lubbock in March 2012. Presiding Judge Keller saw otherwise, noting that the defendant’s presence in Lubbock on a day months before the murder occurred “were not particularly important to the prosecution,” especially when the defendant’s own theory of the case was that he hired Shepard to track and photograph the victim.
With regard to impeaching the defendant with lying about his being in Lubbock on that date, Judge Keller noted that the same point had been effectively made with the proper introduction of the defendant’s gas purchase records, a point which the Seventh Court had downplayed. The defendant had also admitted that he lied in a police interview about knowing the victim and had called Shepard within minutes of the end of the interview, which undermined his credibility more than the CSLI evidence. In sum, the evidence about the defendant’s whereabouts and deceptions regarding March 12 “were not a significant pillar of the State’s case,” and its admission was harmless beyond a reasonable doubt.
A public trial
Now let’s turn to the public trial issue. Even though a showing of harm is not required for structural error, a defendant still must preserve error by objection, and the Court held that the defense had not preserved error as to the sketch artist and the hearing outside the jury’s presence. The objection to the sketch artist’s exclusion was not made until the following day. The Seventh Court held that the State didn’t point to facts in the record showing that the objection wasn’t made at the earliest opportunity, but Judge Keller pointed out that it’s not the State’s burden—the defendant must show that he made the objection at the earliest opportunity.
Regarding the hearing outside the presence of the jury, Judge Keller noted that the defense did object to clearing the courtroom but didn’t preserve error by obtaining a ruling or objecting to the trial court’s refusal to rule, moving instead to other matters.
As to the exclusions during closing arguments, the Court found no error. Judge Keller noted that the trial court determined that the courtroom was filled to capacity, and excluding spectators from a full courtroom is not a violation of the right to a public trial. The trial court had reasonably accommodated the public by using the largest courtroom, and it couldn’t be faulted for turning people away from a full courtroom. The Court reversed and remanded back to the Seventh Court to address Dixon’s remaining, what, 37 issues? Holy cow.
So what’s this mean to me, the hard-working, front-line prosecutor? I’m so glad you asked. As to the CSLI issue, most prosecutors were already aware that Carpenter requires a warrant now, so this portion will probably only be of interest to my fellow appellate nerds (hi, guys!) that have a pre-Carpenter CSLI case pending on appeal, or any other case that involves the Texas Constitution and the Texas’ exclusionary statute, Code of Criminal Procedure Art. 38.23(a). For any pending pre-Carpenter CSLI case, Dixon gives appellate prosecutors both a guide to follow and a case to cite for a harmless error argument. The other reason Dixon is noteworthy is Judge Hervey’s concurrence, and it’s a little technical. Trial prosecutors may wish to skip this next paragraph.
Judge Hervey noted that the lower court’s constitutional harm analysis was based on the Court’s 2016 opinion in Love v. State, which she would overrule. In Love, the defendant argued that text messages were admitted at trial in violation of Art. I, §9 of the Texas Constitution and the exclusionary rule in Art. 38.23(a), and the Court reversed after conducting an analysis for constitutional harm under Texas Rule of Appellate Procedure 44.2(a). Judge Hervey concluded that this is the wrong harm standard and one that unfairly punishes the State; because there is no inherent suppression remedy in Art. I, §9a and Art. 38.23(a) is a statutory remedy, the much more forgiving non-constitutional harm standard of Rule 44.2(b) should apply. Judges Newell and Keasler joined in the concurrence, and Judge Hervey noted that Presiding Judge Keller had expressed her agreement in a dissent in the 2001 case of Hernandez v. State. Appellate prosecutors who have a case arguing that evidence should have been suppressed under Art. I, §9 and Art. 38.23(a) should read the concurrence in Dixon and Presiding Judge Keller’s dissent in Hernandez and consider making an argument that a non-constitutional harm standard should apply.
Welcome back, trial prosecutors! The public trial aspect should probably make all of us take notice. It may seem a little strange that a judge asking the gallery to step outside during a verbal brawl or well-meaning court staff restricting entry to the courtroom to prevent a fire hazard could jeopardize a capital murder conviction, but that’s exactly what almost happened here. In other cases, the exclusion of a member of the public has resulted in a reversal. In the 2010 U.S. Supreme Court case cited in the opinion, Presley v. Georgia, a cocaine trafficking case was reversed when a single observer (the defendant’s uncle) was told to leave the courtroom during voir dire. In another cited case, Cameron v. State, the trial court’s exclusion of three family members from voir dire initially resulted in the reversal of a murder conviction and a remand for a new trial by the Court of Criminal Appeals, although after rehearing the Court instead vacated the judgment of the court of appeals and remanded there for reconsideration. Clearly the public trial doctrine is a pretty important thing to keep in mind for any prosecutor who prefers to only try cases just the one time.
Judge Keller’s opinion is something of a victory for a common-sense approach to acknowledging the trial court’s ability to control the courtroom while still maintaining public access, but the near-reversal in the lower court underlines how important the issue can be. The key here is to be aware in court that a public trial should be public to every degree reasonably possible, and to be mindful of any exclusions that could take place, even inadvertently. When it is necessary that someone be turned away from or excluded from the courtroom, the reasons for the exclusion should be absolutely clear on the record, and it should be equally clear that the court considered and exhausted every reasonable alternative before doing so. It can be very tricky to tell judges how to run their courtrooms, so I advise that you make your second chair do it.
In conclusion, thank you for reading my inaugural ATJSI column and coming to my TED talk. I hope you found it both informative and levitational. As a reward to the careful reader who finished the entire column, there is a $20 gift card to Chuy’s taped under the State’s table in the Court of Criminal Appeals. Good luck.
 See Ford v. State, 477 S.W.3d 321, 330-35 (Tex. Crim. App. 2015); see also Rivera v. State, No. 01-18-00078-CR, 2019 Tex. App. LEXIS 3777 (Tex. App.—Houston [1st Dist.] May 9, 2019, pet. ref’d); Carpenter v. United States, 138 S.Ct. 2206, 2226 (2018) (Kennedy, J., dissenting).
 135 S.Ct. 2206 (2018).
 Dixon v. State, 566 S.W.3d 348, 363-64 (Tex. App.—Amarillo 2018).
 Waller v. Georgia, 467 U.S. 39, 46 (1984).
 Gray v. Mississippi, 481 U.S. 648, 668 (1984).
 Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991).
 See what I did there?
 543 S.W.3d 835, 845 (Tex. Crim. App. 2016).
 “[T]he 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.” This is a tough standard.
 “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Not nearly so tough a standard as Rule 44.2(a).
 60 S.W.3d 106 (Tex. Crim. App. 2001).
 558 U.S. 209 (2010).
 490 S.W.3d 57 (Tex. Crim. App. 2014).