Carson v. Gomez

14 S.W.3d 778, 2000 WL 190175

• Court: Court of Appeals of Texas
• Decided: April 7, 2000
• Docket: 01-96-00784-CV
• Status: Published

Opinions

OPINION

MURRY B. COHEN, Justice.

Carson appeals the trial court’s refusal to discharge a jury panel that saw him enter the courtroom while wearing prison garb and handcuffs. We affirm.

I.

Factual Background

Appellant sued several prison employees, claiming that guards beat him. The guards claimed appellant attacked them. The jury found for the guards.

Shortly before jury selection began, appellant stated:

I would like to object to this initial panel in this case because the jury has witnessed me being escorted around in the courtroom in handcuffs and I’m currently dressed in prison clothing and my ability to receive a fair trial has been breached and I request being allowed to pick a jury from a different panel.

Appellees’ counsel argued that handcuffs and prison uniform were not prejudicial in a civil trial for a prison inmate suing guards, and he suggested appellant ask panel members whether they were prejudiced by his appearance.

The trial judge denied appellant’s motion, but stated he would grant it if questioning showed the panel had been prejudiced by appellant’s appearance. Despite this advice, appellant never questioned the venire on this subject.¹

We agree with the important legal propositions, ably stated in Justice Duggan’s dissenting opinion, that, except for good cause, no one should be tried while restrained, and if one is, the judge should try to minimize the potential for harm. This record, however, does not show that appellant was tried while restrained. Rather, it shows only that he entered the courtroom in handcuffs.

On appeal, appellant contends, for the first time, that during jury selection, he was bound in chains. Appellant cites nothing in the record showing that to be true. Thus, we will not apply Tex. R.App. P. 38.1(f), which provides, “... In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.” (Emphasis added.) We doubt that rule 38.1(f) requires us to take a felon’s word without any record references. A felon’s sworn word is suspect in Texas and everywhere. See Tex.R. Evid. 609; Fed.R.Evtd. 609. Appellant’s claim in his pro se appellate brief that he was chained is, of course, not sworn. Nevertheless, the dissenting opinion takes appellant’s word for it. We do not. If chains were used, appellant, who objected specifically to lesser restraints like handcuffs and prison clothing, never objected to them. The law requires him to do so. Tex.R.App. P. 33.1(a) (requiring specific objection).

Because appellant never mentioned handcuffs during voir dire — even after the trial judge and the opposing counsel encouraged him to do so — we conclude he was not handcuffed during trial. At most, the record shows that jurors saw appellant — who testified he was an incarcerated felon — handcuffed momentarily while in court. As a general rule, courts should avoid that, but its occurrence does not always require reversal.

This case is civil, not criminal. Thus, there is no presumption of innocence to be infringed. Compare Clark v. State, 717 S.W.2d 910, 918-19 (Tex.Crim.App.1986) (noting that although “requiring an accused person to wear handcuffs before the jury infringes his constitutional presumption of innocence ... a momentary, inadvertent, and fortuitous encounter away from the courtroom between a handcuffed accused and one or more of the jurors does not necessarily call for a mistrial or reversal.”) (citations omitted); see also Hernandez v. State, 805 S.W.2d 409, 414-15 (Tex.Crim.App.1990) (determining that even if jurors “did see appellant being transported under restraint, no error is shown since the encounter was momentary, inadvertent, fortuitous, and away from the courtroom.”). Because the presumption of innocence was not at stake and because the evidence naturally showed that appellant was imprisoned, we hold he was not harmed by having been seen once in handcuffs shortly before trial.²

We agree that restraints during trial would have been harmful in this case, in which the main issue was whether prison guards attacked appellant or appellant attacked them. But if jurors saw appellant enter the courtroom with handcuffs and then saw him tried without them, they would likely assume that he posed no danger and had been handcuffed in transit, as any prisoner would have been, only to prevent escape. The removal of handcuffs is the ultimate statement that one is not so dangerous that he requires them.

There being no evidence of harm, we overrule the sole point of error. See TEX. R. APP. P. 44.1(a) (reversal required if the error probably caused an improper judgment).

The judgment is affirmed.

Justice DUGGAN, dissenting.

Justice O’CONNOR requested en banc consideration.

A majority of the justices of the Court voted to overrule the request for en banc consideration.

Justice O’CONNOR dissents from the overruling of the request for en banc consideration and would join the dissenting opinion of Justice DUGGAN.

1 . Appellant asked the venire the following questions about bias:

Does anyone here believe prisoners should not be protected by the law? Does anyone here feel they would be prejudiced against me because I am a prisoner? Is there anyone here who are [sic] related to anyone participating in this trial? Is there anyone that feels they cannot be impartial?

No one answered. Appellant challenged only one person for cause, and that was on a ground unrelated to this point of error.

2 . All panel members agree that, under the facts here, appellant could not have been harmed by being seen in prison clothing.