FILED IN NO. 01-14-00822 st 1 COURT OF APPEALS HOUSTON, TX February 2, 2015 In The Court Of Appeals Of Texas CHRISTOPHER A. PRINE, For The CLERK First Supreme Judicial District Of Texas _____________________________________________________________
NO.1404673
IN THE 177th JUDICIAL DISTRICT COURT
OF HARRIS COUNTY, TEXAS
The Honorable Ryan Kelley Goeb Patrick, presiding
____________________________________________________________
Weylin Alford Appellant
VS
THE STATE OF TEXAS Appellee ____________________________________________________________
APPELLANT’S ANDERS BRIEF ____________________________________________________________
GLENN J. YOUNGBLOOD Appellant's Attorney 5555 West Loop South, Ste. 395 (713) 432-1013 (713) 432-1013 FAX SBOT # 22217400 glenlaw@comcast.net
ORAL ARGUMENT NOT REQUESTED TABLE OF CONTENTS LIST OF AUTHORITIES .............................................................................. 3
STATEMENT OF CASE ............................................................................... 4
STATEMENT OF FACTS ............................................................................. 6
STATE'S WITNESSES ...................................................................................... 6
Victor Ramirez, Harris County Sheriff's Office Deputy ................................ 6
Cheryl Roberson ............................................................................................. 8
Audra Shannon................................................................................................ 9
DEFENSE WITNESSES .................................................................................. 13
SUMMARY .................................................................................................. 13
ISSUES PRESENTED ................................................................................. 14
ISSUE NUMBER 1 ......................................................................................... 14
Argument and Authority ............................................................................... 14
ISSUE NUMBER 2 ......................................................................................... 22
Argument and Authority ............................................................................... 22
ISSUE NUMBER 3 ......................................................................................... 22
Argument and Authority ............................................................................... 23
CONCLUSION ............................................................................................. 26
Page 2 of 27 LIST OF AUTHORITIES CASES
Anders v. California, 386 US 738,744, 18 LEd.2d 493, 87 S Ct 1396 (1967 ...............................................13 Barras v. State, 902 S.W.2d 178,(Tex.App.--El Paso 1995, pet. ref'd) .........................................................15 Calcarone v. State, 675 S.W.2d 785 (Tex.App.--Houston [14th Dist.] 1984, no pet.) ..................................16 Cedillos v. State, 250 S.W.3d 145 (Tex.App.-Eastland 2008).......................................................................25 Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. App. 1974); .........................................................................13 Deck v. Missouri, 544 U.S. 622, (2005) ..................................................................................................23, 24 Faretta v. California, 422 U.S. 806 (1975) ..................................................................................14, 15,16, 20 Fernandez v. State, 564 SW2d 771 (Tex. Crim. App. 1978) .......................................................................... 6 Ford v. State, 870 S.W.2d 155,(Tex.App.--San Antonio 1993, pet. ref'd) ....................................................15 Hardee v. Kuhlman, 581 F.2d 330 (CA2 1978).............................................................................................26 High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978). .............................................................................13 Hobbs v. State, 778 S.W.2d 185, (Tex.App.--Beaumont 1985, no pet.).......................................................15 Holbrook v. Flynn, 475 U.S. 560 (1986) .......................................................................................................26 Illinois v. Allen, 397 U.S. 337 (1970) ......................................................................................................20, 24 Johnson v. State, 760 S.W.2d 277 (Tex.Crim.App. 1988). ...........................................................................16 Johnson v. Zerbst, 304 U.S. 458 ....................................................................................................................15 Jordan v. State, 571 S.W.2d 883 (Tex.Crim.App. 1978). .............................................................................15 Logan v. State, 690 S.W.2d 311, (Tex.App.--Dallas 1985, pet. ref'd) ...........................................................16 Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)..........................................................................23, 25 Manley v. State, 23 S.W.3d 172, 173 (Tex.App.--Waco 2000, pet. ref'd) .....................................................15 Nixon v. State, 572 SW2d 699 (Tex. Crim. App. 1978) ................................................................................ 6 U.S. v. Burch, 48 F.3d 1233 (10th Cir. 1995) ..............................................................................................26 United States v. Long, 597 F.3d 720 (5th Cir. 2010) .....................................................................................20
CONSTITUTIONAL PROVISIONS
Tex. Const. art. 1 § 10 ............................................................................................................................21, 22 U.S. Const. amend. 6th ............................................................................................................................21, 22 U.S. Const Amnd 14th.............................................................................................................................21, 22
Page 3 of 27 STATEMENT OF CASE
The Appellant, Weylin Alford was indicted on January 9, 2014 by a
Harris County Grand Jury on a charge of Burglary of a Habitation, a Second
degree felony alleged to have occurred on October 12, 2013. Said indictment
further alleged that the Appellant had been twice previously convicted of the
felony of Possession of a Controlled Substance in Cause Number 3022258
in the 147th District Court of Travis County, Texas on April 7, 2003 and
Possession of a Controlled Substance in Cause Number 1289552 in the
185th District Court of Harris County, Texas on January 4, 2014 for
enhancement purposes. The latter prior conviction was found to be a State
Jail Felony inappropriate for enhancement purposes and was not included in
the evidence presented nor was the jury informed of that conviction.
At the pre-trial hearing on September 9, 2014 The Defendant advised
the Court that he wanted to represent himself at trial. He was admonished by
the Court that if that was his decision there would have to be another hearing
to consider his request for self representation. The court further advised
appellant that the Case was set for trial on October 3, 2014 and would not be
continued to give appellant additional time, nor would it be continued at the
request of any new lawyer appellant may hire. [Reporter's Record Vol. 2].
Page 4 of 27 On September 19, 2014 the Court conducted a hearing in accordance
with Faretta v. California, 422 U.S.806, 835 (1975) [Reporter's Record Vol.
3]. See also The Court's Order granting Appellant's request to represent
himself at trial at [Clerk's Record , Pg.112].
Upon Appellant’s plea of not guilty the case was tried before a jury on
October 2, 2014. The jury found the Appellant guilty as charged.
On the morning before the commencement of the punishment phase of
the trial, while in the hold over area outside the courtroom, the Appellant
was found to have concealed, among other things a hand made stabbing
instrument commonly referred to as a "shank". After a brief discussion the
Court revoked Appellant's pro se status and appointed standby counsel to
proceed.
After hearing the evidence and argument during the punishment phase
of the trial the Jury sentenced Appellant to 30 years years confinement in the
Institutional Division of the Texas Department of Criminal Justice.
Appellant gave timely and proper Notice of Appeal on October 6,
2014 and the Trial Court Certified Appellant's right to appeal.
Page 5 of 27 STATEMENT OF FACTS As must be done in accordance Fernandez v. State, 564 SW2d
771 (Tex. Crim. App. 1978) and Nixon v. State, 572 SW2d 699 (Tex. Crim.
App. 1978), viewed in the light most favorable to the verdict, the record
reflects the following:
State's Witnesses
Victor Ramirez, Harris County Sheriff's Office Deputy
Deputy Ramirez Testified that he responded to a call initially thought
to be an Aggravated Assault at 942 Fruitvale, Houston, Tx. Upon arrival he
met with the witness and home owner Cheryl Roberson and the Complainant
Audra Shannon. Deputy Ramirez stated that he further learned that the case
was a Burglary of a Habitation with intent to commit an assault. He also
determined that the suspect had broken into the house and assaulted the
Complainant. Entry into the house was gained by throwing a five gallon
paint can through the front window. Deputy Ramirez took photos of the
broken window, the paint can and the injuries sustained by the Complainant.
the photos were admitted without objection as State's Exhibits 2, 3, 4, 5, 6, 7,
8, 9 and 10. [Reporter's Record, Vol. 5, Pg. 16 - 18]. Deputy Ramirez further
testified that after he spoke to Ms Roberson and the Complainant he
searched the general area to locate the suspect and found him at a Dollar
Page 6 of 27 Store. The Appellant was taken into custody. [Reporter's Record, Vol. 5, Pg
20, 21].
Deputy Ramirez was shown State's Exhibit 11 which he identified as
the medical report of the North East Medical Center. Having been on file 14
days prior to trial, the State offered State's Exhibit 11 and it was admitted
without objection. [Reporter's Record, Vol. 5, Pg. 22-23]. The State
requested and was granted permission to orally publish State's Exhibit 11 to
the jury:
MR. GILLIAM: State's Exhibit No. 11 are medical records from the
Houston Northwest Medical Center. The notes indicate that the patient
states that she was assaulted by a fist, that she had injuries to her head
and face. The diagram on the records indicate a contusion to her face
and possibly to her neck.
Included in these records are records from the Harris County
Emergency Corps. The records state that the medic was dispatched to
a possible assault and upon arrival to the scene the complainant was
noted to be sitting upright outside sitting in a chair saying that she was
beaten up by her boyfriend. The boyfriend came over to talk and she
did not let him. He broke the window and assaulted the patient. She
states that she was hit with his fist and denies him using anything
Page 7 of 27 other than a fist. She states she is having neck pain and that her head
hurts. [Reporter's Record, Vol. 5, Pg. 23-24].
Cheryl Roberson
Ms. Roberson testified that she knew Appellant from work at Wal-
Mart where she was employed as a cook in the deli department and he was
thought to be a stocker. She also met the Complainant, Appellant's
girlfriend, who she knew as Shay. This witness made an in-court
identification of the Appellant. Ms Roberson went on to testify that she had
known the Complainant and Appellant a short time; approximately two
weeks. [Reporter's Record, Vol. 5, Pg. 37, 38].
Ms Roberson further testified that the Complainant began to live with
her for about 4 or 5 days at her residence at 914 Fruitvale, Houston, Harris
County, Texas, when the alleged incident occurred. The Complainant began
to live with Ms Roberson because she was told by Appellant that she had no
place to go. The Complainant moved in bringing her belongings with her
and was allowed to sleep on a couch. [Reporter's Record, Vol. 5, Pg 38 - 39].
The witness went on to state that on October 12, 2013 while the
Complainant was living with her they came in contact with the Appellant.
She described how Appellant first knocked on the door and asked for Shay.
When Appellant was told Shay wouldn't come in there because she was
Page 8 of 27 scared, he said "I'm going to count to ten." At that time Appellant did not
have permission to enter the home. When I shut the door he got the paint can
and hit it through the window and went in and beat her up. [Reporter's
Record, Vol. 5, Pg. 40 - 43].
When the window was broken Ms Roberson, her three grandkids ages
5, 6 and 8 as well as the Complainant were in the living room. Ms Roberson
told appellant to get out of her house. The appellant walked to the
Complainant and beat her up; he kicked her, hit her in the face. The beating
lasted for 15 minutes according to the witness. Ms Roberson kept telling him
to "Get out of my house." [Reporter's Record, Vol. 5, Pg. 45 -47].
When Appellant left leaving blood all over her floor, Ms Roberson
and her next-door neighbor went to find him and found him by the General
Dollar Store. She knew where to look because the busses do not run late on
weekends so she decided to look near the General Dollar Store where he was
probably trying to get back on the bus. When they saw the Appellant she
called the police. When they arrived she told the Deputy what had happened.
[Reporter's Record, Vol. 5, Pg. 47 - 50].
Audra Shannon
Ms Shannon testified that she is also known by her nickname Shay
and that the Appellant was her ex-boyfriend who she identified in court. She
Page 9 of 27 said that she and the Appellant dated for about six to nine months after
meeting at a homeless shelter downtown called the Bread of Life. They
were still dating on October 12, 2013. They were not living together on
October 12, 2013 and she was living with Cheryl Roberson. The
Complainant was uncertain of the length of time she was living with Ms
Roberson and expressed the time as one to two weeks. [Reporter's Record,
Vol. 5, Pg 60 - 63]
Complainant testified that she had a conversation with Appellant on
the morning of October 12, 2013. She stated:
"I received a call from the Defendant. He was extremely upset
because prior to that morning we had made an agreement since he
was too busy and couldn't obtain his work badge -- his nametag
before he left his job, his co-worker had given it to me to give to him.
But before I could give it to him, he had already gotten on the bus
and went to do other things.
So I took the name badge home with me, and we had agreed that the
morning in question we were supposed to meet so that he could take
his name badge and go to work."
She went on to explain that she did not agree to allow him to come
over to get his badge:
Page 10 of 27 "Because the conversation that we had the time he called me and we
were in the conversation he was already upset and told me forget
it, that he was just going to call off -- call in and call off of work and
not to worry about it. The whole time that we were on the phone in
conversation he was telling me that he was on his way to work,
which really his initial intentions and his ending goal was he was on
his way to the residence where I was living at."
She explained that the initial lengthy conversation ended when he said
he had to call someone and he would call back. The second conversation
was short and ended right before he arrived at the house. During the second
conversation he was calling her a "B" and a "H" and accused her of turning
against him; that she was letting people get into her head and he wanted her
to gather her belongings and leave with him immediately. She learned
Appellant was at the residence when he unexpectedly knocked on the door .
[Reporter's Record, Vol. 5, Pg 64 - 67].
Complainant explained that she, Ms Roberson and Ms Roberson's
three grandchildren were in the room when Appellant knocked on the door
and wanted her to come out. She refused to go out to meet Appellant
because she didn't trust him. She said that she had seen him mad before; that
he had serious anger and aggression issues so she was not going to put
Page 11 of 27 herself in a position for him to do bodily harm to her. Appellant was given
his name badge and was asked to leave the residence. [Reporter's Record,
Vol. 5, Pg. 68 - 69].
Complainant continued stating that she heard Appellant say "you got
to the count of three or I'm coming in." All of a sudden they heard a crash
and Appellant came charging around the corner with a look she had never
seen before. There was no emotion, no expression. She described it as "…
what you would consider a stone cold killer if you watch movies." Appellant
came at her quickly giving her no time to react and started pounding on her
with his fists knocking her to the floor continuing to hit her head and face
seven or eight times before kicking her in her back her butt check and head. .
[Reporter's Record, Vol. 5, Pg 69 - 71].
While she was being beaten Ms Roberson and her grandchildren were
in the room. The oldest grandchild was curled up in a fetal position under the
coffee table right next to where Complainant was laying while being beaten.
Complainant also estimated she was beaten over a 15 to 20 minute period.
Appellant stopped beating her, got up, took one step and turned around and
took her wallet and cell phone and left. [Reporter's Record, Vol. 5, Pg 71 -
72].
Page 12 of 27 Complainant identified herself in State's Exhibit 5 showing bruises
and contusions resulting from the beating she received at the hands of the
Appellant, Weylin Alford. [Reporter's Record, Vol. 5, Pg. 76].
Defense Witnesses
The pro se Appellant produced no evidence in his defense. No
witnesses were called by the Defense, nor did the Appellant take the witness
stand to testify in his own defense. He simply rested and closed.[Reporter's
Record, Vol. 5., Pg 85-85].
Summary This Brief is prepared pursuant to the requirements for frivolous
appeals as set forth in Anders v. California, 386 US 738,744, 18 LEd.2d
493, 87 S Ct. 1396 (1967); Currie v. State, 516 SW 2d 684, 685 (Tex. Cr.
App. 1974); and High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978).
Appellate counsel sets forth three issue dealing with the Court's
revocation of the appellant's right to self representation under Federal and
State law; ordering the Appellant shackled during the punishment phase of
the trial.
Page 13 of 27 Issues Presented
Issue Number 1
APPELLANT WAS DEPRIEVED OF HIS CONSITIUTIONAL RIGHT
TO REPRESENT HIMSELF DURING THE PUNISHMENT PHASE OF
THE TRIAL IN VIOLATION OF THE U.S. Const. amend. 6TH AND
14TH.
Argument and Authority
"The Sixth and Fourteenth Amendments of our Constitution guarantee
that a person brought to trial in any state or federal court must be afforded
the right to the assistance of counsel before he can be validly convicted and
punished by imprisonment. This clear constitutional rule has emerged from a
series of cases decided here over the last 50 years. The question before us
now is whether a defendant in a state criminal trial has a constitutional right
to proceed without counsel when he voluntarily and intelligently elects to do
so. Stated another way, the question is whether a State may constitutionally
hale a person into its criminal courts and there force a lawyer upon him,
even when he insists that he wants to conduct his own defense. It is not an
easy question, but we have concluded that a State may not constitutionally
do so." Faretta v. California, 422 U.S. 806 (1975). "Although the right to
self-representation is absolute, a waiver of the right to counsel will not be
Page 14 of 27 lightly inferred, and the courts will indulge every reasonable presumption
against the validity of such a waiver." Manley v. State, 23 S.W.3d 172, 173
(Tex.App.--Waco 2000, pet. ref'd)(internal quotations omitted); see Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 1023, 82 L.Ed. 1461 (1938),
and Jordan v. State, 571 S.W.2d 883, 884 (Tex.Crim.App. 1978).
"The defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction. It is the defendant, therefore, who must be
free personally to decide whether in his particular case counsel is to his
advantage. And although he may conduct his own defense ultimately to his
own detriment, his choice must be honored out of 'that respect for the
individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337,
350 -351 (BRENNAN, J., concurring)", Faretta v. California 422 U.S. 806.
If the record indicates a clear expression of the defendant's desire to
proceed pro se, accompanied by careful and thorough admonishments from
the trial court, the reviewing court should conclude that sufficient evidence
exists to support allowing for waiver of counsel. See Barras v. State, 902
S.W.2d 178, 180-81 (Tex.App.--El Paso 1995, pet. ref'd); Ford v. State, 870
S.W.2d 155, 158 (Tex.App.--San Antonio 1993, pet. ref'd); Hobbs v. State,
778 S.W.2d 185, 186-87 (Tex.App.--Beaumont 1985, no pet.); Logan v.
State, 690 S.W.2d 311, 313-14 (Tex.App.--Dallas 1985, pet. ref'd). Although
Page 15 of 27 there has been no exact line of questioning set out to establish a knowing
and intelligent waiver of the right to counsel, the trial court should at least
inquire into the accused's age, background, education and experiences, in
addition to making the accused aware of the advantages and disadvantages
of self-representation. Calcarone v. State, 675 S.W.2d 785, 786 (Tex.App.--
Houston [14th Dist.] 1984, no pet.). Moreover, the court should make the
accused aware of the general nature of the offense charged, aware that the
accused must comply with the rules of evidence and criminal procedure, and
aware that the accused will receive no special consideration by the court. Id.
All of these admonishments should be sufficiently reflected within the
record to enable the appellate court to make an accurate assessment of the
decision of the accused. Johnson v. State, 760 S.W.2d 277, 279
(Tex.Crim.App. 1988). See also Faretta v. California, 422 U.S. 806 (1975).
The trial court conducted a Faretta Hearing and complied with all of
the above making the record in this case indicate a clear expression of the
Appellant's desire to proceed pro se. Accordingly, the trial court granted
Appellant his right to proceed pro se. [Reporter's Record, Vol. 3, Pg 5-33;
Clerk's Record 112].
Page 16 of 27 While the jury was deliberating the Appellant's guilt or innocence on
the morning of October 2, 2014, the court addressed the Appellant out of
their presence:
THE COURT: Have a seat, Mr. Alford.
All right. Mr. Alford, it's my understanding that when you were
brought up this morning Deputy Ojeda, who is one of my regular
court bailiffs, found on you what appears to be some pills, a piece of
wire, about a, I would say, 5 to 6-inch homemade jail shank, in
addition to some other torn clothing that was used to secure it to your
leg and other things like that.
In addition, speaking with Deputy Ojeda, he told me that your
statement to him is that you've had it on you all of your court
settings, which was -- I don't know if that's true because I know,
according to Deputy Ojeda, he personally searches you when he --
when you've been on our docket, but you also stated that you had it
on you yesterday.
Based on that statement, sir, you have now forfeited your right
to represent yourself. You are now in the courtroom as a regular
defendant.
Page 17 of 27 You now have your leg shackles on you.
Mr. Alford, I'll get to you in a moment.
You now have leg shackles on you. The leg shackles, you need
to be careful that the jury does not hear them while you move around;
but Mr. Aguirre is now your attorney.
If you would like to take this issue up on appeal, you're
welcome to do so. But at this time you are considered a very high
risk and a very high threat to the safety of the people in this
courtroom. I am not going to tolerate any outbursts from you, any
movements that are not necessary or anything else.
Do I make myself explicitly clear, Mr. Alford?
THE DEFENDANT: Yes, sir.
THE COURT:
In addition, the ERT deputies will be in here. Whatever they
feel is appropriate for the level of security now that they feel is
necessary to protect everyone in this courtroom, including Mr.
Aguirre, who was sitting next to you yesterday.
Page 18 of 27 So have a seat, sir. We have some read back. Mr. Aguirre has
gone over that with you.
THE DEFENDANT: May I --
No, you may not. You are now represented by Mr. Aguirre. If
you have any questions, you may address them through him. Have a
seat.
Let's bring in the jury, please.
[Reporter's Record, Vol. 6, Pg 6 - 8].
Subsequently, a portion to the testimony of Ms. Roberson was read to
the jury in response to their question, The jury retired and returned with a
verdict of guilty. The trial continued to the punishment phase. Appellant
made no further request or assertion of his right to self representation neither
personally or through his attorney.
Courts had been told that many criminal defendants representing
themselves may use the courtroom for deliberate disruption of their trials.
But the right of self-representation has been recognized from our beginnings
Page 19 of 27 by federal law and by most of the States, including The State of Texas, and
no such result has thereby occurred. Moreover, the trial judge may terminate
self-representation by a defendant who deliberately engages in serious and
obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337 Faretta v.
California 422 U.S. 806 (1975) Of course, a State may - even over
objection by the accused - appoint a "standby counsel" to aid the accused if
and when the accused requests help, and to be available to represent the
accused in the event that termination of the defendant's self-representation is
necessary. See Faretta v. California 422 U.S. 806 (1975).
In United States v. Long, 597 F.3d 720 (5th Cir. 2010 No negative
treatment in subsequent cases) in discussing the waiver of the right of self
representation said, " [A] defendant can waive his Faretta rights, either by
expressly requesting standby counsel's participation on a matter or by
acquiescing in certain types of participation by counsel, even if the
defendant insists that he is not waiving his Faretta rights .... [O]nce a pro se
defendant invites or agrees to any substantial participation by counsel,
subsequent appearances by counsel must be presumed to be with the
defendant's acquiescence, at least until the defendant expressly and
unambiguously renews his request that standby counsel be silenced ....
Page 20 of 27 [S]tandby counsel's participation [must] be ‘ over the defendant's objection’
in order to erode the defendant's Faretta rights."
In the case at bar the court terminated the Appellant's right of self
representation based on the discovery of a "shank" on the person of the
Appellant. This discovery was made while the Appellant was in the custody
of the Harris County Sheriff's Office in the holdover cell and not in the
courtroom. The weapon was taken from the Appellant and represented no
threat to anyone in the courtroom. During the entire trial proceedings
appellant was respectful to the court and his conduct was normal, reserved
and appropriate to the circumstances in the courtroom. His conduct was not
obstructionist in any manner. His conduct in the courtroom did not rise to
the level of deliberately engaging in serious and obstructionist misconduct
authorizing termination of Appellant's constitutional right to self
representation under the U.S. Const. amend. 6th and 14th, and Tex. Const.
art. 1 § 10.
However, Appellant placed himself inside the courtroom with the
shank based on his alleged statement to Deputy Ojeda that he, Appellant,
"…had it on him yesterday…" thereby raising his conduct to the level of
deliberately engaging in serious and obstructionist misconduct authorizing
termination of Appellant's constitutional right to self representation.
Page 21 of 27 Appellant's right of self representation under the U.S. Const. amend. 6th and
14th, and Tex. Const. art. 1 § 10 were waived.
Issue Number 2
THE TRIAL IN VIOLATION OF THE Tex. Const. art. 1 § 10.
The foregoing argument and authority presented above in the
Argument and Authority for Issue Number 1 is incorporated herein with
particular attention to the Texas case law cited.
Issue Number 3
APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE U.S.
CONST. AMEND. 5TH AND 14TH WERE VIOLATED WHEN THE
TRIAL COURT ORDERED HIM TO BE SHACKLED IN FRONT OF
THE JURY DURING THE PUNISHMENT PHASE.
Page 22 of 27 Argument and Authority The United States Supreme Court has held that the appearance of a
defendant in shackles before a jury during a trial can violate the defendant's
Fifth and Fourteenth Amendment rights to due process. Deck v. Missouri,
544 U.S. 622, 629–34 (2005). The Court reasoned that "visible shackling
undermines the presumption of innocence and related fairness of the
factfinding process[, ] . . . can interfere with the accused's ability to
communicate with his lawyer" and "participate in his own defense, " and
"affronts the dignity and decorum of judicial proceedings that the judge is
seeking to uphold." Id. at 630–31.
'[A]ll efforts should be maintained to prevent the jury from seeing the
defendant in shackles, except where there has been a showing of exceptional
circumstances or a manifest need for such restraint.' Long v. State, 823
S.W.2d 259, 282 (Tex. Crim. App. 1991). It is within the discretion of the
trial judge as to whether a defendant shall be tried in handcuffs or shackles,
and the trial court's decision is reviewed for abuse of that discretion. Id.
(noting that "the record must clearly and affirmatively reflect the trial judge's
reasons therefor").
Courts have recognized a narrow exception to this rule if a trial court
determines that there is a particular need for shackling the defendant, such as
Page 23 of 27 a demonstrated propensity to attempt escape or assault others in the
courtroom. Id. (citing Deck, 544 U.S. 622, 627, 632 (2005), Long v State,
823 S.W.2d 259, 282. The trial court’s determination is reviewed under an
abuse of discretion standard. Long, 823 S.W.2d at 282.
A trial judge confronted by a defendant's disruptive conduct can exercise
discretion to meet the circumstances of the case, and though no single
formula is best for all situations, there are at least three constitutionally
permissible approaches for the court's handling of an obstreperous
defendant: (1) bind and gag him as a last resort, thereby keeping him
present; (2) cite him for criminal or civil contempt; or (3) remove him from
the courtroom, while the trial continues, until he promises to conduct himself
properly. Illinois v. Allen, 397 U.S. 337 (1970).
The Fifth and Fourteenth Amendments of the United States
Constitution prohibit the use of physical restraints visible to the jury unless
the trial court in its discretion finds that they are justified by an essential
State's interest such as physical security, escape prevention, or courtroom
decorum. Deck v. Missouri, 544 U.S. 622, 628, 125 S.Ct. 2007, 161 L.Ed.2d
953 (2005) . Courts have held that some circumstances justify the use of
restraints during trial, including situations where an accused expressed his
intention to escape, made threats of physical violence, resisted being brought
Page 24 of 27 to court, repeatedly interrupted the court proceedings, attempted to leave the
courtroom, or engaged in other egregious conduct. Cedillos v. State, 250
S.W.3d 145 (Tex.App.-Eastland 2008) .
When an appellant complains of the use of shackles, it is first
determined if the trial court abused its discretion by allowing appellant to be
shackled. If so,it must then be determine whether appellant suffered harm as
a result. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App.1991) .
In the case at bar, Court choose to employ the first of the Illinois v
Allen options; to bind and gag him as a last resort, thereby keeping him
present in the court room. The court choose not to gag Appellant. The court
also utilized the services of the ERT deputies as a security precaution.
The chief feature that distinguishes the use of identifiable security
officers from courtroom practices that might be found inherently prejudicial
is the wider range of inferences that a juror might reasonably draw from the
officers' presence. While shackling and prison clothes are unmistakable
indications of the need to separate a defendant from the community at large,
the presence of guards at a defendant's trial need not be interpreted as a sign
that he is particularly dangerous or culpable. Jurors may just as easily
believe that the officers are there to guard against disruptions emanating
Page 25 of 27 from outside the courtroom, or to ensure that tense courtroom exchanges do
not erupt into violence. Indeed, it is entirely possible that jurors will not infer
anything at all from the presence of the guards. If they are placed at some
distance from the accused, security officers may well be perceived more as
elements of an impressive drama than as reminders of the defendant's special
status. Our society has become inured to the presence of armed guards in
most public places; they are doubtless taken for granted so long as their
numbers or weaponry do not suggest particular official concern or alarm.
See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978). U.S. v. Burch, 48
F.3d 1233 (10th Cir. 1995 No negative treatment in subsequent cases). See
also Holbrook v. Flynn, 475 U.S. 560, 106 (1986), Deck v Missouri, 544
U.S. 622, 658-659 .
By his own statement to Deputy Ojeda Appellent admitted that he had
had the shank on him in court the previous day. The court was then
authorized to employ the extra ordinary use of shackles and the ERT
deputies for increased security and protection of all those in the court room.
There was no violation of Appellant's constitutional rights.
CONCLUSION Based of the undersigned attorney’s review of the record in this case,
including the many misguided rambling motions filed by the appellant, legal
Page 26 of 27 research conducted by said attorney and the arguments presented
hereinabove, the appeal filed in this cause is wholly lacking in meritorious
issues and is frivolous.
Respectfully submitted
_________________________ Glenn J. Youngblood Attorney at Law 5555 West Loop South, Ste. 395 Bellaire, Texas 77401 (713) 432-1013 [Voice/FAX] SBOT 22217400 glenlaw@att.net
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