Opinion
04-21-00218-CR
06-08-2022
William Earl CUNNINGHAM, Appellant v. The STATE of Texas, Appellee
Do Not Publish
From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CR-10050 Honorable Melisa C. Skinner, Judge Presiding
Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
AFFIRMED
Appellant William Earl Cunningham appeals a judgment revoking his community supervision, arguing his right to a public proceeding was violated when the trial court sentenced him to two years of confinement. We affirm.
Background
On June 27, 2016, Cunningham entered into a plea bargain with the State for the offense of assault on a family member, agreeing to, among other things, five years of community supervision in lieu of five years' imprisonment. The State moved to revoke Cunningham's community supervision in March 2021, asserting he violated multiple conditions of his community supervision. The following month, the trial court held a hearing on the motion during which Cunningham admitted he violated condition two, requiring him to submit to drug testing as directed by the court, court officer, or his supervision officer.
Based on his admission, the trial court revoked Cunningham's community supervision and sentenced him to two years' imprisonment with the Texas Department of Criminal Justice. This appeal followed.
Right to a Public Trial
Appellant argues the trial court violated his right to a public hearing without an express waiver of his right pursuant to article 1.24 of the Texas Code of Criminal Procedure when it conducted its hearing on the State's revocation motion via Zoom and livestreamed the hearing on YouTube.
Article 1.24 of the Code of Criminal Procedure provides "[t]he proceedings and trials in all courts shall be public." Tex. Code Crim. Proc. art. 1.24. The right is forfeitable and must be preserved by a proper objection. Dixon v. State, 595 S.W.3d 216, 222-23 (Tex. Crim. App. 2020). "Preservation requires a timely, specific objection." Id. A defendant is "not required to use magic language to preserve his public-trial complaint for review, but Appellant ha[s] the burden to state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Peyronel v. State, 465 S.W.3d 650, 652 (Tex. Crim. App. 2015) (internal quotation marks omitted). The defendant "must also obtain a ruling on the objection, or absent a ruling, the [defendant] must object to the trial court's refusal to rule." Dixon, 595 S.W.3d at 223. As the appealing party, Cunningham has the burden to bring forth a record showing that error was preserved. Id.
Cunningham has not cited to any caselaw or other authority providing the right to a public trial is violated when the proceeding is livestreamed on the internet, and we are not aware of any caselaw reaching this conclusion. Assuming arguendo a proceeding via YouTube is not a "public proceeding," see Tex. R. App. P. 47.1, we consider whether Cunningham forfeited the right to a public proceeding by failing to object. See Dixon, 595 S.W.3d at 223. During the revocation proceeding, the trial court informed Cunningham the proceeding was "streaming live on YouTube due to the COVID 19 restrictions still in place." The trial court asked Cunningham's counsel if he had "any objection to us proceeding by way of streaming live rather than coming into the courtroom." Cunningham's counsel stated: "No, Your Honor." The hearing transcript and the record are devoid of any preservation of Cunningham's complaint for our review. See Peyronel, 465 S.W.3d at 652. Because Cunningham has failed to carry his burden to bring forth a record showing that error was preserved, his sole point of error is overruled. See Dixon, 595 S.W.3d at 223; Durden v. State, No. 12-16-00004-CR, 2016 WL 4628101, at *1 (Tex. App.-Tyler Sept. 7, 2016, pet. ref'd) (mem. op., not designated for publication).
Cf. Lira v. State, 630 S.W.3d 439, 440 (Tex. App.-Eastland 2021) (reversing and remanding judgment of trial court where appellant's plea hearing was via Zoom videoconference, appellant moved to rescind the order setting his case on a Zoom videoconference prior to the hearing, renewed his objection at the outset of the hearing, and trial court overruled motion and objection, and appellant contended on appeal he had statutory right to enter his guilty plea in open court, right was substantive right, and was therefore not subject to the Texas Supreme Court's emergency Covid-19 pandemic orders authorizing a trial court to set his case via Zoom videoconference), pet. for discretionary review granted, 622 S.W.3d 891 (Tex. Crim. App. 2021); Huddleston v. State, 630 S.W.3d 436, 439 (Tex. App.-Eastland 2021) (same), pet. for discretionary review granted, 622 S.W.3d 921 (Tex. Crim. App. 2021).
Appellant does not contend the trial court violated the Supreme Court's Thirty Sixth Emergency Order Regarding the Covid-19 State of Disaster or that the trial court's application of the Thirty Sixth Emergency Order violated his rights. See Thirty Sixth Emergency Order Regarding the Covid-19 State of Disaster, No. 21-9026, 2021 WL 866472 (Tex. Mar. 5, 2021).
Conclusion
The judgment is affirmed.