Shears v. State

667 S.W.2d 805, 1983 Tex. App. LEXIS 5186
CourtCourt of Appeals of Texas
DecidedOctober 13, 1983
DocketNo. 12-82-0055-CR
StatusPublished

This text of 667 S.W.2d 805 (Shears v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shears v. State, 667 S.W.2d 805, 1983 Tex. App. LEXIS 5186 (Tex. Ct. App. 1983).

Opinion

McKAY, Justice.

Appellant was found guilty by a jury of five counts of burglary of a building with intent to commit theft, and also found to have been previously convicted of the offense of aggravated robbery; punishment was assessed at twenty-five years confinement.

By his first ground of error appellant contends the trial court erred in failing to grant his motion for mistrial because the same jury panel from which his jury was chosen was used to select a jury for another case before his trial began, and counsel in the subsequent case advised the panel that the defendant in that case was eligible for probation. Argument is made that since no reference was made by counsel to probation while examining the jury in his [807]*807case, but probation was mentioned as a possible result in another case during jury voir dire before the same jury panel, appellant was denied a trial by an impartial jury under the 14th and 6th Amendments of the U.S. Constitution and art. I, § 10, Texas Constitution.

Appellant argues that in examination of the same jury panel in the subsequent case, counsel for the State and appellant informed the jury panel “of the law of probation,” and that it was unavoidable that the jury panel, and members of the trial jury in his case, then knew that appellant had a prior conviction because probation was not mentioned in voir dire of jury in appellant’s case. Appellant further argues that both cases, appellant’s and Hart’s, were burglary cases, that the jury would conclude that appellant had a criminal record or probation would apply in each case, and that injurious and prejudicial matters were before the jury panel.

Appellant cites Pennington v. State, 353 S.W.2d 451 (Tex.Cr.App.1962), in which in his voir dire examination of the jury, State’s counsel stated, “I don’t want to have to try this case again. It has already cost the State ten thousand dollars ($10,-000),” and the court held that such statement “injected injurious and prejudicial matter before the jury panel which was reasonably calculated to prevent a fair trial before an impartial jury.”

The rule upon which appellant apparently relies is that when evidence that is prejudicial and harmful and which has little or no relevance to any issue in the case is admitted it generally requires reversal of the judgment. Stanley v. State, 606 S.W.2d 918, 919 (Tex.Cr.App.1980). In the instant case there was no reference to probation in the jury voir dire, while in the Hart case voir dire, which followed with the same panel, probation was discussed. Before the same jury panel it was shown that one defendant had applied for probation while the other did not. It is not improper on voir dire examination to tell the jurors of a motion for probation by a defendant, and to question them as to their attitude concerning probation. Rodriguez v. State, 513 S.W.2d 22 (Tex.Cr.App.1974). There was no evidence before the jury panel concerning a prior conviction of appellant, and the trial court instructed the jury panel to consider only the evidence presented in each case. We find no authority that the fact that probation was called to the attention of the jury in one case and was not in another constitutes prejudicial injury to appellant calling for reversal. Appellant later, testifying in his own behalf, admitted that he had been convicted of the felony offense of aggravated robbery. We hold the trial court did not abuse its discretion, and ground of error one is overruled.

By his second ground of error appellant contends the trial court erred in requiring shackles to be placed on him while he was in the courtroom during the trial. The trial judge had a conference with counsel for the State and for appellant, and a portion of such conference was recorded in the statement of facts relating to leg irons having been placed on appellant. The trial judge stated that he knew of his own knowledge that appellant on two previous occasions successfully escaped from the jail on foot, and there was a third attempt by appellant during the instant trial, and that the court would “take due precautions to insure that the jury is not necessarily made aware that you are wearing leg irons during the course of the trial.” The trial judge gave as an additional reason for leg irons that there had been “large number of escapes had from this courtroom” due to the arrangement of the courtroom and its proximity to the lobby and outside doors to the courthouse which open onto a busy intersection. The trial judge described the leg irons as handcuffs with a short chain between them.

Appellant’s counsel then asked appellant if he understood that the case was to be tried with leg irons on him, and appellant said he did, and that he knew why. Then appellant’s counsel said, “Actually, we’re at a table, I guess the record should reflect, it should not at this point be visible to the jury as long as he’s seated here.” [808]*808Counsel then said, “For the record, we would object to it to preserve the question, Judge.” After further discussion between the court and appellant’s counsel, appellant proceeded to the witness chair in the absence of the jury, then testified before the jury on direct examination that he had previously been convicted of aggravated robbery by use of a deadly weapon (a pistol), and that he was arrested inside the W.E. Jones Kindergarten building at night time.

From the record we are not able to determine whether the leg irons were ever seen by the jury or were visible to the jury. Appellant took the witness stand in the absence of the jury, and after his testimony before the jury, the jury was excused from the courtroom. Nevertheless, we will address the ground of error. On appeal the test is whether the trial court abused its discretion in requiring a defendant to be tried with handcuffs or leg irons, and for proper review the record should contain the factual matters upon which the trial court based its discretionary decision. Thompson v. State, 514 S.W.2d 275, 278 (Tex.Cr.App.1974).

The old case of Gray v. State, 99 Tex. Cr.R. 305, 268 S.W. 941 (Tex.Cr.App.1925), has been quoted and cited many times for the rule applicable here:

We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a case to proceed under such circumstances, he should be very sure of his ground.

The exceptions referred to in Gray are:

... on the other hand, if, in the sound discretion of the court, it appears necessary to retain his shackles to prevent the escape or self-destruction of the prisoner, or to prevent him from injuring bystanders or officers of the court, or if necessary to maintain a quiet and peaceable trial, the court may try the prisoner without having the shackles removed; his action being subject to the closest scrutiny and review by the appellate court. 268 S.W. 949.

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Related

Jackson v. Denno
378 U.S. 368 (Supreme Court, 1964)
Hester v. State
544 S.W.2d 129 (Court of Criminal Appeals of Texas, 1976)
Tomlinson v. State
422 S.W.2d 474 (Court of Criminal Appeals of Texas, 1967)
Thompson v. State
514 S.W.2d 275 (Court of Criminal Appeals of Texas, 1974)
Stanley v. State
606 S.W.2d 918 (Court of Criminal Appeals of Texas, 1980)
Pennington v. State
353 S.W.2d 451 (Court of Criminal Appeals of Texas, 1962)
Freeman v. State
556 S.W.2d 287 (Court of Criminal Appeals of Texas, 1977)
Short v. State
511 S.W.2d 288 (Court of Criminal Appeals of Texas, 1974)
Myre v. State
545 S.W.2d 820 (Court of Criminal Appeals of Texas, 1977)
Smith v. State
638 S.W.2d 200 (Court of Appeals of Texas, 1982)
Rodriguez v. State
513 S.W.2d 22 (Court of Criminal Appeals of Texas, 1974)
Gray v. State
268 S.W. 941 (Court of Criminal Appeals of Texas, 1924)

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Bluebook (online)
667 S.W.2d 805, 1983 Tex. App. LEXIS 5186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shears-v-state-texapp-1983.