Opinion issued July 11, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-00615-CR ——————————— CLIFFORD JAMES GRATTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1231782
MEMORANDUM OPINION
A jury convicted appellant, Clifford Gratton, of the offense of capital
murder. 1 Because the State did not seek the death penalty, the trial court
1 See TEX. PENAL CODE ANN. § 19.03(a)(7)(A) (Vernon Supp. 2012) (providing that person commits capital murder when he murders more than one person during same criminal transaction). automatically assessed punishment at confinement for life. In two issues, appellant
contends that (1) the State failed to present sufficient evidence of identity and
(2) the trial court abused its discretion when it required his alibi witness to testify
in jail clothing without making any findings of fact or conclusions of law
concerning this decision.
We affirm.
Background
In May 2007, Joseph Brown lived near the corner of Fondren and the
Southwest Freeway, by the Arena Towers, in southwest Houston. Around 7:30 or
8:00 p.m. on May 11, 2007, Brown was standing in the doorway of his garage
talking on his cell phone. Across the street, Brown saw a car stopped at the
intersection of Fondren and the driveway from the Arena Towers, waiting to turn
left onto Fondren. Brown then saw a person run from behind a nearby fence to the
car and shoot into the front passenger window of the car. The shooter then ran
back behind the fence. The car rolled across two lanes of Fondren and stopped at
the grassy median. Brown called 9-1-1. He then saw a man, later identified as
John Wells, climb out of the rear driver’s side door, “stagger” across Fondren to a
parking lot, and collapse. Brown walked over to the car and saw a passenger, later
identified as Demonceon Coleman, sitting motionless and the driver, later
identified as Ralph Houston, “gasping for breath.” Coleman and Houston both
2 died of multiple gunshot wounds. Brown testified that “[a]ll [he] saw [of the
shooter] was a person with black clothing, and [he] couldn’t even see skin or the
face.” It appeared to Brown that the shooter was wearing a hood and something to
cover his face.
Kenya Hutchins testified that he was walking into a business on Fondren
with two friends, Tiara Warren and Lashanda Reid, when he heard a loud bang
followed a few seconds later by a series of several bangs. Hutchins ducked into
the store and waited for several seconds before looking outside. Hutchins started
walking toward Fondren. As he did so, he saw a car moving at a crawl toward the
median, where it stopped. Hutchins then saw Wells climb out of the rear driver’s
side door of the car. Wells, holding both of his sides, hobbled across Fondren.
Hutchins and his friends helped Wells over to the front of a nail salon. The only
thing he heard Wells say to them was, “Please don’t let me die.” Hutchins brought
towels out from the nail salon to try to stop Wells from bleeding. Hutchins left
Wells with Reid, who was trying to bandage him, and he went back over to the car
to check on its occupants.
Lashanda Reid testified in a prior proceeding in this case. Because she was
unavailable to testify at the trial that is the subject of this appeal, her prior
testimony was read into the record. Reid stated that she was standing in front of a
business when she heard gunshots. Reid turned in the direction of the gunshots
3 and saw a “flash” and a “figure.” Reid recalled telling the police in her statement
that she saw the shooter and that she could tell the shooter was a man. She told the
police that the man was “dark-skinned,” and she clarified in her testimony that she
meant that the man was African-American. She stated that the shooter was too far
away for her to be able to tell what his actual complexion was. Reid also spoke
with Wells, who appeared in shock, as she was assisting him. Reid testified that
she asked Wells if he knew who shot him, and Wells responded, “No.”
John Wells testified that he met Coleman and Houston when they started
working for a company called Bargain Network, which had its office in the Arena
Towers, in early 2007. Wells, Coleman, and Houston were part of a training group
that met in the afternoon. The three of them became friends, and they would
carpool home after work. Appellant had also recently started working at Bargain
Network and was attending the morning training session. Appellant and Coleman
knew each other from high school, and, occasionally, as appellant was leaving
training for the day and Coleman was beginning, appellant would pass by
Coleman’s work station and call him derogatory names. At work on the day of the
shooting, appellant walked over to Coleman and started talking to him. The
conversation turned into an argument, during which appellant again called
Coleman derogatory names. Appellant then told Coleman, “Meet me outside,”
and, as he was walking away, appellant said, “I got you.”
4 Around 8:00 p.m., Wells, Coleman, and Houston left work in Houston’s car.
They were sitting at an intersection waiting to turn onto Fondren when Wells heard
a “big bang.” Wells, who was sitting in the back seat of the car, ducked down. He
looked over and saw appellant, who was wearing a black hooded sweatshirt and
something covering his mouth, standing at the front passenger window and
shooting into the car. Wells tried to reach for the gun and open the car door, and as
he did this, he was shot as well. After appellant stopped shooting, he said to
Coleman, “I told you I’d get you.” Wells recognized the voice as appellant’s.
Appellant then ran over to a car that was parked nearby and left the scene.
After appellant left, Wells managed to get out of the car and go to a nearby
parking lot. Wells remembered speaking to a woman in the parking lot, but he did
not remember her asking who shot him. When asked by the prosecutor if he knew,
at that point in time, who had shot him, Wells responded, “Yes.”
Wells spoke to the police twice at the hospital. The first time, he told the
officer that “[a] guy at work” had shot him, because he did not know appellant’s
name. The second time, two days later, Wells viewed three photo-arrays. He did
not identify anyone in the first photo-array, but he did identify appellant in the
second photo-array. When asked who he was identifying, Wells responded, “I was
identifying a person who shot me.” Wells stated that he “knew exactly who shot
[him].” Wells later gave a recorded statement to police, in which he described
5 what had happened earlier in the day at work and what had happened in the car.
He again identified appellant as the shooter.
Lauren Philmon also worked at Bargain Network. She testified that she was
in the same training group as Coleman, Houston, and Wells, which met in the
afternoon. She testified that she had seen appellant at work and that he was part of
the morning training group. She stated that, on the day of the shooting, appellant
and Coleman started arguing while at work. She heard appellant tell Coleman that
he “would be waiting for them after work.” She stated that neither appellant nor
Coleman was belligerent during this altercation, but she could tell from their
attitudes and their tone of voice that they did not like each other.
Houston Police Department (“HPD”) Sergeant J. Roberts was assigned to
investigate the shooting. Sergeant Roberts testified that after he assisted in
processing the scene he saw John Wells at Ben Taub Hospital. Wells was heavily
sedated at the time, so Sergeant Roberts had only a brief conversation with him
before Wells went into surgery. After this conversation, Sergeant Roberts received
a telephone tip from Shelly Houston, Ralph Houston’s sister, and she gave him the
names of three potential suspects, including appellant. Sergeant Roberts obtained a
photograph of appellant, and another homicide investigator prepared three photo-
arrays, each one containing a picture of one of the possible suspects Shelly
Houston had named. Sergeant Roberts then visited Wells in the hospital on May
6 13, 2007, and showed him the photo-arrays. 2 The first and third photo-arrays did
not contain a picture of appellant, and Wells did not identify anyone in these
arrays. The second photo-array contained appellant’s picture, and Wells pointed to
appellant’s picture and “identified him as Cliff who works with them at Bargain
Network and also as the person who shot them.” Sergeant Roberts testified that
Wells “immediately” pointed to appellant’s picture and that, when asked whether
he was sure about his identification, Wells responded, “Yes.” Sergeant Roberts
was not able to speak with Wells about the details of the shooting at that time
because Wells was still too weak from surgery, but Roberts interviewed Wells
approximately two weeks later.
Appellant called Demarco Coleman, who was not related to the complainant
Demonceon Coleman, as an alibi witness. At the time of the trial, Demarco was
incarcerated on an unrelated offense and was dressed in the orange jumpsuit of the
Harris County Jail. Before defense counsel called Demarco, he objected to
requiring Demarco to testify in his jail clothes. Counsel stated:
We believe that the fact that [Demarco is] in an orange jumpsuit and clearly known to be in custody would be—would create an impression of untruthfulness and would take away from the witness’ testimony. I feel like if he could be dressed in street clothing, he would be put on equal footing with all other witnesses that have appeared so far, Your Honor.
2 Sergeant Roberts attempted to speak with Wells on May 12, 2007, but Wells was still unconscious after surgery. 7 The trial court stated, “That ruling is denied.” On direct-examination of Demarco,
defense counsel called attention to his attire, and Demarco testified that he was
currently in custody. He stated that he had previously been convicted of burglary
of a habitation and that he had violated the terms of his probation, leading to his
present incarceration.
Demarco testified that he arrived at appellant’s apartment between 5:30 and
6:00 p.m. on May 11, 2007, and that he remained at the apartment for the entire
evening. About four hours after he arrived, Demarco received text messages
concerning the shooting. Demarco testified that appellant was at the apartment
when he arrived and that appellant did not leave the apartment before he received
the text messages concerning the shooting.
Appellant testified on his own behalf. Appellant acknowledged that he and
Demonceon Coleman were affiliated with rival gangs. He agreed that he had a
conversation with Houston and Coleman on the day of the shooting, but he stated
that he never threatened anyone during the course of that conversation. Appellant
testified that he took a bus home from work and arrived back at his apartment
around 4:30 or 5:00 p.m. He testified that he did not go back to the Arena Towers
area that night; rather, he stayed at his apartment the entire evening. He stated that
he later found out about the shooting via text message. Appellant testified that he
8 has never owned or carried a gun, and he denied shooting Coleman, Houston, and
Wells.
Appellant testified that, the night after the shooting, he and one of his friends
were asleep in his apartment when two men broke into the apartment and accused
appellant of being involved in the shooting. Appellant responded that he was not
involved in the shooting. In response, the men forced appellant and his friend out
of the apartment. The men tried to force appellant and his friend into the trunk of a
car and threatened to kill them. Appellant testified that he then ran away. The
men shot at appellant, but he escaped unharmed. The next day, appellant left
Houston to stay with his father in Chicago.
Ultimately, the jury found appellant guilty of capital murder, and the trial
court automatically assessed his punishment at confinement for life. See TEX.
PENAL CODE ANN. § 12.31(a)(2) (Vernon 2011).
Sufficiency of the Evidence
In his second issue, Appellant contends that the State failed to present
sufficient evidence that he was the one who shot Coleman and Houston. 3
3 Appellant also contends that his conviction was contrary to the overwhelming weight of the evidence, and he cites law relevant to factual sufficiency challenges. In Brooks v. State, the Court of Criminal Appeals overruled Clewis v. State and its progeny and held that evidence is to be reviewed solely under the sufficiency standard described in Jackson v. Virginia. 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (“[W]e decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to 9 A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury’s determinations of credibility. See Lancon v. State, 253
support each element . . . beyond a reasonable doubt.”); Ervin v. State, 331 S.W.3d 49, 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding in Brooks). 10 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
B. Capital Murder
To establish that appellant committed capital murder, the State was required
to prove that appellant intentionally and knowingly caused the death of
Demonceon Coleman and Ralph Houston by shooting them with a deadly weapon,
namely, a firearm, during the same criminal transaction. See TEX. PENAL CODE
ANN. §§ 19.02(b)(1) (Vernon 2011), 19.03(a)(7)(A) (Vernon Supp. 2012). The
State must prove, beyond a reasonable doubt, that the accused is the person who
committed the charged crime. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim.
App. 1984); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet.
ref’d). Identity may be proved by direct or circumstantial evidence, and it may be
proved by inferences. Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d); Roberson, 16 S.W.3d at 167. Direct and
circumstantial evidence are equally probative, and proof by circumstantial
evidence is not subject to a more rigorous standard than proof by direct evidence.
11 Roberson, 16 S.W.3d at 167 (citing McGee v. State, 774 S.W.2d 229, 238 (Tex.
Crim. App. 1989)); see also Clayton, 235 S.W.3d at 778 (“Circumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.”).
Positive identification of a defendant by a victim of the crime is sufficient to
establish the defendant’s identity as the perpetrator. See Kesaria v. State, 148
S.W.3d 634, 641 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279
(Tex. Crim. App. 2006); see also Williams v. State, 34 S.W.3d 587, 590 (Tex.
App.—Eastland 2000, pet. ref’d) (holding eyewitnesses’ identification of
defendant sufficient to establish identity even though defendant disputed
eyewitnesses’ identifications); Davis v. State, 831 S.W.2d 839, 842 (Tex. App.—
Dallas 1992, pet. ref’d) (holding victim’s identification of defendant sufficient
even though defendant presented five witnesses who testified he was in another
state at time of offense). The victim’s positive, unequivocal in-court identification
of the defendant as the perpetrator is also sufficient to establish identity. See Jones
v. State, 687 S.W.2d 430, 432 (Tex. App.—Houston [14th Dist.] 1985, no pet.).
The inability of other eyewitnesses to the offense to identify the defendant does not
prove that the defendant did not commit the offense. See Santos v. State, 116
S.W.3d 447, 459 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also
Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005,
12 pet. ref’d) (“[The complainant’s identification] testimony standing alone is
sufficient to support appellant’s conviction.”).
John Wells testified that appellant had had verbal altercations at work with
Demonceon Coleman, in which appellant called Coleman derogatory names. On
the day of the shooting, appellant approached Coleman at work and started arguing
with him, and, at the end of the conversation, appellant said “Meet me outside” and
“I got you” to Coleman. Wells testified that, later that evening, while he, Coleman,
and Houston were waiting in Houston’s car at an intersection, he heard a “big
bang” and ducked down in the back seat of the car. Wells saw appellant standing
at the window and shooting inside the car. Wells testified that, during the
shooting, appellant said, “I told you I’d get you.” Wells recognized appellant’s
voice.
The first time Wells spoke to the police, he did not know appellant’s name,
so he told Sergeant Roberts that “[a] guy at work” shot him. The next time Wells
spoke to Sergeant Roberts, he looked at three photo-arrays. He testified that a
picture of the “person who shot [him]” was not contained in the first photo-array,
but it was contained in the second photo-array. When asked how much doubt he
had when he pointed out appellant’s picture in the photo-array, Wells responded, “I
knew exactly who shot me.” In a later interview, after he had been discharged
from the hospital, Wells provided details of the incident at work and the shooting,
13 and he again identified appellant as the shooter. Wells also identified appellant in
court as the shooter.
Sergeant Roberts testified that the second photo-array that he showed to
Wells contained a picture of appellant, and Wells pointed to appellant’s picture,
identified him as “Cliff” from work, and stated that he was the person who shot
him. Wells looked at all of the pictures in the photo-array and then immediately
pointed to appellant’s picture. When asked if he was sure about his identification,
Wells responded “Yes.” This identification occurred on May 13, 2007, two days
after the shooting, because this was the first time that Sergeant Roberts stopped by
when Wells was awake and coherent enough after surgery to view the photo-
arrays. 4 Wells’ identification of appellant as the shooter, both from a photo-array
and in court, is sufficient to establish appellant’s identity as the perpetrator of the
charged offense. See Kesaria, 148 S.W.3d at 641; Jones, 687 S.W.2d at 432.
As further evidence of identity, the State presented Lauren Philmon’s
testimony that appellant and Coleman had a confrontation at work the day of the
shooting. She heard appellant tell Coleman that he “would be waiting for them
after work.” Philmon testified that appellant and Coleman were not belligerent
during this conversation, but she could tell from their attitudes and their tone of
4 Contrary to appellant’s assertion, there is no indication that Wells’ delayed identification of appellant was at all connected to appellant’s attempted kidnapping by associates of Coleman or Houston on May 12, 2007. 14 voice that they did not like each other. Appellant, testifying on his own behalf,
acknowledged that he and Coleman were affiliated with rival gangs.
In contending that the evidence was not sufficient to establish identity,
appellant points to Lashanda Reid’s testimony from a prior proceeding that, as
Wells was lying in front of the nail salon, she asked him who had shot him and he
stated that he didn’t know. Wells testified that he did not remember Reid asking
him this question, and he agreed with the prosecutor that “at that point” in time, he
knew who had shot him. Appellant also pointed to the testimony of triage nurse
Theresa Thomas, who testified that when Wells arrived at Ben Taub she asked him
what had happened and he said that the gunshots came from another vehicle.
Wells did not recall telling a nurse at Ben Taub that the gunshots had come from
another vehicle, and he affirmatively testified that that was an inaccurate
description of what had happened at the scene.
Appellant also points out that, in her statement to police, Reid stated that the
shooter was dark-skinned, “a description that does not match the Appellant.”
However, when Reid was told of this statement during her previous testimony, she
clarified that by “dark-skinned” she meant African-American and that she was “too
far away” to determine the shooter’s actual complexion. It is the province of the
jury to believe or disbelieve all or any part of a witness’s testimony, and we
15 resolve any conflicts in the evidence in favor of the verdict. See Curry, 30 S.W.3d
at 406; Sharp, 707 S.W.2d at 614.
When the evidence is viewed in the light most favorable to the verdict, we
conclude that a rational fact finder could have found beyond a reasonable doubt
that appellant committed the charged offense. We hold that the State presented
sufficient evidence to establish appellant’s identity as the shooter of Coleman and
Houston.
We overrule appellant’s second issue.
Witness Testifying in Jail Clothes
In his first issue, appellant contends that the trial court abused its discretion
when it required his alibi witness to testify in jail clothes and failed to make
findings of fact and conclusions of law on the record concerning this decision.
Requiring a defendant to attend trial in jail clothing infringes upon his
fundamental right to the presumption of innocence. Estelle v. Williams, 425 U.S.
501, 512, 96 S. Ct. 1691, 1697 (1976); Gibson v. State, 233 S.W.3d 447, 453 (Tex.
App.—Waco 2007, no pet.). This constitutional consideration does not apply,
however, to witnesses testifying at a hearing other than their own. See Gibson, 233
S.W.3d at 453; see also Gordon v. State, 260 S.W.3d 205, 210 (Tex. App.—
Texarkana 2008, pet. ref’d) (holding same). The Court of Criminal Appeals has
held that “it is within [the trial court’s] discretion to require that witnesses be
16 dressed in [jail] uniforms and be shackled, if the circumstances so warrant.”
Thompson v. State, 514 S.W.2d 275, 278 (Tex. Crim. App. 1974); Gordon, 260
S.W.3d at 210; Gibson, 233 S.W.3d at 453. On appeal, we must determine
whether the trial court abused its discretion by requiring the witness to appear
before the jury in jail clothes. Thompson, 514 S.W.2d at 278; Gordon, 260 S.W.3d
at 210; Gibson, 233 S.W.3d at 453. If we conclude that the trial court abused its
discretion, we must conduct a harm analysis pursuant to Texas Rule of Appellate
Procedure 44.2(a) and determine whether we believe, beyond a reasonable doubt,
that the error “did not contribute to the conviction or punishment.” TEX. R. APP. P.
44.2(a); Gordon, 260 S.W.3d at 210–11.
For an appellate court to review the trial court’s action on appeal, “the
record should contain the factual matters on which the trial court’s discretion was
based. It must appear in the record that in exercise of its discretion the trial court
had a fair knowledge and understanding of all such factual matters.” Thompson,
514 S.W.2d at 278. The appellate record should contain the trial court’s reasons
for requiring the witness to testify in jail clothing, and the court should instruct the
jury not to consider this fact in rendering its verdict. See Gordon, 260 S.W.3d at
211; see also Thompson, 514 S.W.2d at 278 (“The trial judge should give his
reasons where objections are made to a witness testifying for a defendant in jail
17 clothing or in handcuffs and instruct the jury to not consider the restraint in
assessing the proof and determining guilt.”).
Here, outside the presence of the jury, defense counsel informed the trial
court that he intended to call Demarco Coleman, who was in custody in the Harris
County Jail and was dressed in an orange jumpsuit. Defense counsel objected to
requiring Demarco to testify while in jail clothing. He stated:
We believe that the fact that [Demarco is] in an orange jumpsuit and clearly known to be in custody would be—would create an impression of untruthfulness and would take away from the witness’ testimony. I feel like if he could be dressed in street clothing, he would be put on equal footing with all other witnesses that have appeared so far, Your Honor.
The trial court responded, “That ruling is denied.” The court did not make findings
of fact and conclusions of law concerning this decision, and it did not explain its
rationale in overruling defense counsel’s objection. The trial court also did not
instruct the jury, either at the time that Demarco testified or in the jury charge, that
it should not consider the fact that he appeared in jail clothing when rendering its
verdict. When Demarco testified, defense counsel called attention to the fact that
Demarco was wearing an orange jumpsuit, and he asked Demarco whether he was
in custody. 5 Demarco testified that he had previously been convicted of burglary
5 There is no indication in the record that Demarco was also shackled when he testified. 18 of a habitation and that he was currently incarcerated because he had violated the
terms of his probation.
We conclude that the trial court erred when it required Demarco to testify in
jail clothing without stating its rationale for this decision on the record and without
instructing the jury not to consider this fact when reaching its verdict. See Gordon,
260 S.W.3d at 211 (“We conclude such a rationale [requiring a witness to testify
shackled and in jail clothes because it was ‘sheriff’s department’s policy’], absent
additional considerations expressly supported by the appellate record, is
insufficient to support a trial court’s decision to require an inmate to wear jail
clothing while testifying on behalf of the accused.”); Groh v. State, 725 S.W.2d
282, 285 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) (holding that trial court
erred “in allowing the witness to first appear before the jury in jail clothing,
without apparent justification for doing so”).
We now must determine whether we believe, beyond a reasonable doubt,
that the trial court’s error “did not contribute to the conviction or punishment.”
TEX. R. APP. P. 44.2(a); Gordon, 260 S.W.3d at 210–11; Groh, 725 S.W.2d at 284.
On direct examination, Demarco admitted that he had been previously convicted of
the felony offense of burglary of a habitation and that he was incarcerated at the
time of appellant’s trial because he had violated the terms of his probation. This
testimony would have been “a proper matter of impeachment by the State on cross-
19 examination, regardless of the witness’ attire.” Gordon, 260 S.W.3d at 211; see
also TEX. R. EVID. 609 (permitting impeachment of witness with evidence of prior
felony conviction); Groh, 725 S.W.2d at 285 (finding error harmless because
witness testified concerning circumstances of his arrest). In Gordon, the
Texarkana Court of Appeals reasoned that it was “inevitable” that the jury would
learn that the witness was a convicted felon and had been brought from prison to
testify on the defendant’s behalf. 260 S.W.3d at 211. The court noted that it was
“quite doubtful that [the witness’] appearance in jail clothing would have had any
greater impact on the jury’s credibility determination than simply hearing [the
witness] himself admit to being a convicted drug dealer.” Id.
Similarly, we conclude beyond a reasonable doubt that, because Demarco
admitted to both a prior felony conviction and his subsequent violation of the terms
of his probation, leading to his incarceration at the time of trial, the trial court’s
decision to require Demarco to testify in jail clothing did not contribute to
appellant’s conviction. See TEX. R. APP. P. 44.2(a); Gordon, 260 S.W.3d at 210–
12; see also Groh, 725 S.W.2d at 284 (noting that “[n]o Texas court has found
reversible error where a witness for the defense was presented to the jury in jail
clothes”).
We overrule appellant’s first issue.
20 Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Justice Sharp, dissenting in an opinion to follow.
Do Not Publish. TEX. R. APP. P. 47.2(b).