COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-236-CV
IN THE INTEREST OF L.A., A.R., S.A.H.,
AND D.S.L.H., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellants Latacha R. and Byron H. appeal from the trial court’s order
terminating Latacha’s parental rights to her four children, L.A., A.R., S.A.H.,
and D.S.L.H., and Byron’s rights to his two children, S.A.H. and D.S.L.H. We
affirm.
1
… See T EX. R. A PP. P. 47.4.
Factual and Procedural Background
L.A., A.R., S.A.H., and D.S.L.H. are ten, seven, five, and four years of
age, respectively. Latacha is the biological mother of all four children. Byron
is the biological father of S.A.H. and D.S.L.H. Latacha is married to Izell R. 2
Latacha and Izell separated in May or June of 2002. Latacha met Byron in early
2002, and they began living together in the summer of 2002.
L.A. suffers from what one psychologist diagnosed as mild mental
retardation, and she has an IQ of 63. 3 In 2002, when L.A. was four years old,
she made a sexual abuse outcry to her maternal grandmother, Estella B. Estella
testified that L.A. told her that Byron had touched her “goochie” or privates.
About a week later, L.A. moved in with Estella’s son, Devarius B., and his
girlfriend, Natasha G., in Austin. Natasha testified that L.A. told her that her
“goochie” hurt, that Byron hurt her, and that she did not want to go back to the
“blue house” where Byron lived. Natasha and Devarius took L.A. to a Child
Advocate Center. The Department eventually “ruled out” the allegation for
physical abuse and sexual abuse.
2
… Izell is the presumed father of A.R., S.A.H., and D.S.L.H. The trial
court terminated Izell’s parental rights, and Izell did not appeal the trial court’s
order.
3
… But L.A.’s special-needs teacher testified that L.A. scored a 74 on
another IQ test, which is four points above the cutoff for mental retardation.
2
Eric Franklin, the supervisor of investigations for Travis County Child
Protective Services, testified that the Department received four other referrals
for the family in the eight months after December 2002. In February 2004, the
Department received a risk referral regarding allegations that Byron had sexually
abused his ten-year-old biological daughter, who lived in Montana. In May
2004, the Department received another referral regarding Byron’s abuse of one
of L.A.’s younger siblings. The Department recieved two more referrals in
2005 for physical abuse and physical neglect.
In July 2006, Byron’s mother, Salome H., received a voicemail message
on which she thought she heard L.A. crying out for help (a Department
caseworker testified that subsequent analysis of the voicemail showed
Salome’s interpretation to be unfounded). Concerned about L.A.’s and the
other children’s safety, Salome retrieved all four children from Byron’s home.
L.A. told Salome that “my daddy took me in the bedroom and pulled my pants
down, . . . he had a long brown thing between his legs, and he put it in my
butt.” Salome reported L.A.’s outcry to the police. In a videotaped interview,
L.A. told a Department investigator that Byron told her to bend over and that
he “poked” her “bottom” with an object she called a “ranus.” When asked by
the Department interviewer to draw a picture of Byron and his penis, she drew
the penis separate and detached from his body. Latacha consented to a search
3
of the apartment she shared with Byron, and in the apartment police found and
photographed a vibrator and a dildo. The trial court admitted the photographs
into evidence over Latacha’s and Byron’s objections. Dr. Jamye Coffman,
director of the child abuse program at Cook Children’s Medical Center, testified
that L.A. told her that her daddy “put his penis in [her] butt”; that her mom was
just standing there watching; that she told her mom that it hurt, but her mom
didn’t do anything; and that she passed blood with a bowel movement
afterwards.
Based on L.A.’s outcry, the Department removed the children and placed
them with Byron’s mother. The State charged Byron with sexually assaulting
L.A. in 2002, and Byron remained in jail awaiting trial when the termination
case went to trial. A jury found that Latacha and Byron had endangered the
children and that termination was in the children’s best interest, and the trial
court terminated their parental rights.
4
Discussion
1. Admission of photographs of sexual device
Latacha, in her first issue, and Byron, in his second issue, both argue that
the trial court erred by admitting into evidence two photographs of the dildo
police found in their apartment because the danger of unfair prejudice
substantially outweighed the photograph’s probative value.
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence. T EX. R. E VID. 403. A Rule 403 analysis
should include consideration of (1) how probative the evidence is; (2) the
potential of the evidence to impress the jury in some irrational, but nevertheless
indelible way; (3) the time the proponent needs to develop the evidence; and(4)
the proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d 782,
787 (Tex. Crim. App.), cert. denied, ___ U.S. ___ (2006). When considering
photographs admitted over a Rule 403 objection, the reviewing court should
also consider the number of photographs, the size of the photographs, whether
they are in color or black and white, and the detail shown in the photographs.
Id. (also listing considerations not applicable here).
5
The admissibility of photographs over a challenge is within the sound
discretion of the trial court. In re J.B.C., 233 S.W.3d 88, 94 (Tex. App.—Fort
Worth 2007, pet. denied). Because Rule 403 favors admissibility of relevant
evidence, the presumption is that relevant evidence will be more probative than
prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App.
1990) (op on reh’g). The burden is on the opponent of the proffered evidence
to demonstrate the prejudicial attributes of the evidence and to show how these
attributes substantially outweigh the probative value of the evidence. Goldberg
v. State, 95 S.W.3d 345, 367 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d), cert. denied, 540 U.S. 1190 (2004).
In this case, the photographs of the dildo found in Latacha and Byron’s
apartment was probative evidence that supported L.A.’s outcry that Byron had
penetrated her anus with an object she described as a “ranus.” The
photographs certainly had the potential to impress the jury in a way that was
unfavorable to Latacha and Byron and possibly indelible, but we cannot say that
the impression so formed would be irrational, particularly in a case where a key
question for the jury was the credibility of L.A.’s testimony that she had been
sexually assaulted with a foreign object. The Department spent little time
developing the evidence. As both Latacha and Byron point out, there was
ample testimony about L.A.’s outcry that she had been sexually assaulted with
6
a “ranus,” and a police officer described finding the dildo, but the testimony
was inadequate to describe the device itself; this case proves the time-worn
cliché that a picture is worth a thousand words. Thus, the Department had a
need for the evidence.
One of the photographs is approximately eight by ten inches and the
other is approximately five by seven inches. The first photograph was taken
outside a closet and depicts the areas both inside and outside the closet, and
the dildo is just visible though the closet door. The second photograph presents
a wide-angle view of the closet floor. In both photographs, the image of the
dildo itself is occupies a small portion—less than one percent of the five by
seven and about 1/10 of one percent of the eight by ten—of the whole
photograph. The copies filed in this court are black and white; presumably, the
original exhibits are in color, but neither Latacha nor Byron suggest that the
color of the photographs presented a danger of unfair prejudice.
We hold that Latacha and Byron have failed to show how the
photographs’ prejudicial attributes outweighed their probative value and that the
trial court did not abuse its discretion by overruling their Rule 403 objections.
We overrule Latacha’s first issue and Byron’s second issue.
7
2. Legal and Factual Sufficiency
Latacha, in her second issue, and Byron, in his third issue, challenge the
legal and factual sufficiency of the evidence to support the jury’s grounds-for-
termination and best interest findings. As grounds for termination, the jury
found that Latacha violated paragraphs (D) and (E) of family code section
161.001(1) with regard to all four children and that Byron violated the same
paragraphs with regard to S.A.H. and D.S.L.H.
a. Standard of review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). In a termination case, the State seeks not just to limit parental
rights but to end them permanently—to divest the parent and child of all legal
rights, privileges, duties, and powers normally existing between them, except
for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b) (Vernon
Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly
scrutinize termination proceedings and strictly construe involuntary termination
statutes in favor of the parent. Holick, 685 S.W.2d at 20–21; In re E.M.N.,
221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.).
8
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish at least one
ground listed under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001
(Vernon Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both
elements must be established; termination may not be based solely on the best
interest of the child as determined by the trier of fact. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
9
When reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
When reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the verdict with our
10
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated the relevant conduct provision of
section 161.001(1) and that the termination of the parent’s parental rights
would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). If, in light of the entire record, the disputed evidence that a reasonable
fact-finder could not have credited in favor of the finding is so significant that
a fact-finder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. H.R.M., 209
S.W.3d at 108.
b. Endangerment as grounds for termination
Paragraph (D) of family code section 161.001(1) authorizes termination
if a parent knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child’s physical or emotional well-
being, and paragraph (E) authorizes termination if a parent engaged in conduct
that endangers the child’s physical or emotional well-being. T EX. F AM. C ODE
A NN. § 161.001(1)(D), (E).
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
Under subsection (D), it is necessary to examine evidence related to the
11
environment of the child to determine if the environment was the source of
endangerment to the child’s physical or emotional well-being. In re D.T., 34
S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied). Conduct of a
parent in the home can create an environment that endangers the physical and
emotional well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex.
App.—Fort Worth 1995, no writ). For example, abusive or violent conduct by
a parent or other resident of a child’s home may produce an environment that
endangers the physical or emotional well-being of a child. See id. at 776–77;
Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex.
App.—Fort Worth 1984, writ ref’d n.r.e.).
Under subsection (E), the relevant inquiry is whether evidence exists that
the endangerment of the child’s physical well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. In re R.D., 955
S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83–84 (Tex.
App.—Dallas 1995, no writ). Additionally, termination under section
161.001(1)(E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at 634; In re
K.M.M., 993 S.W .2d 225, 228 (Tex. App.—Eastland 1999, no pet.). Under
12
either subsection (D) or (E), it is not necessary that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d
at 533.
Because the evidence concerning these two statutory grounds for
termination is interrelated, we consolidate our examination of it. See In re
J.T.G, 121 S.W.3d 117, 126 (Tex. App.— Fort Worth 2003, no pet.); In re
B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing
the link between a parent’s conduct and a child’s conditions and surroundings).
i. Grounds for termination: Latacha
Latacha argues that the evidence is legally and factually insufficient to
support the jury’s paragraph (D) and (E) endangerment findings because she
testified that she knew nothing about Byron’s abusing L.A. Latacha testified
that she did not learn of L.A.’s 2002 outcry until June 2003. She testified that
when she did learn of L.A.’s outcry, she asked both L.A. and Byron about the
alleged abuse; she testified that they both denied that anything had happened.
On the other hand, Dr. Jamye Coffman testified that L.A. told her that Latacha
watched as Byron abused her, that she told Latacha that it hurt, and that
Latacha did nothing in response. We must defer to the jury’s determinations
of the credibility of the witnesses, the weight to be given the testimony, and
the resolution of evidentiary conflicts. City of Keller v. Wilson, 168 S.W.3d
13
802, 819, 822 (Tex. 2005). A reasonable jury could have formed the firm
belief or conviction that Latacha witnessed or knew about the abuse and did
nothing to stop it. We therefore hold that the evidence is both legally and
factually sufficient to support the jury’s endangerment findings.
In addition, Daniel Green, a psychotherapist who provided counseling
services to Latacha as part of her service plan, testified that she told him that
she had “relapsed” and used marijuana and cocaine after the Department
removed her children. Department caseworker Tikishia Lusk-Wilkerson likewise
testified that Latacha tested positive for cocaine and marijuana a few months
before trial and that Latacha said that she did not consider marijuana to be a
drug. A parent’s decision to engage in illegal drug use during the pendency of
a termination suit, when the parent is at risk of losing a child, supports a finding
that the parent engaged in conduct that endangered the child’s physical or
emotional well-being. In re R.H., No. 02-06-00130-CV, 2006 WL 3627176,
at *4 (Tex. App.—Fort Worth Dec. 14, 2006, no pet.) (mem. op.); In re J.J.O.,
No. 02-03-00267-CV, 2004 WL 966317, at *4 (Tex. App.—Fort Worth May
6, 2004, no pet.) (mem. op.). Latacha denied having used cocaine and testified
that she only told Green that she had tested positive for cocaine, not that she
had relapsed. Again, the jury was free to believe Green and Lusk-Wilkerson and
disbelieve Latacha. See City of Keller, 168 S.W.3d at 819, 822. We hold that
14
the evidence of Latacha’s drug use during the pendency of the termination suit
is also legally and factually sufficient to support the jury’s endangerment
findings. We overrule the portion of Latacha’s second issue that pertains to the
jury’s findings on grounds for termination.
ii. Grounds for termination: Byron
Byron argues that the evidence is legally and factually insufficient to
support the jury’s endangerment findings because there is no evidence that he
sexually abused his biological children, S.A.H. and D.S.L.H. It is beyond
question that sexual abuse is conduct that endangers a child’s physical or
emotional well-being. In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort
Worth 2004, pet. denied). Evidence of sexual abuse of one child is sufficient
to support a finding of endangerment with respect to other children. Id. Most
of the evidence at trial concerned the allegations that Byron sexually abused
L.A. We therefore hold that the evidence was legally and factually sufficient
to support the jury’s endangerment findings with regard to Byron, and we
overrule his third and fourth issues.
15
c. Best interest
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and
in the future;
(3) the emotional and physical danger to the child now and
in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
16
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
i. Best interest: Latacha
Ruth Ann Patsel, a court-appointed special advocate who attended some
but not all of the supervised visitations, testified that she saw very little
interaction between Latacha and the children during the visitations. Latacha
appeared happy to see the boys but had little to do with the girls. She
occasionally brought gifts for the children but usually for just the boys. She
allowed S.A.H. to bully the other children and take toys away from them.
Patsel testified that the girls were not strongly bonded to Latacha.
Caseworker Lusk-Wilkerson testified that Latacha refused to attend non-
offender sexual abuse classes and was discharged from a CATS drug treatment
program for noncompliance.
Jacqueline H.—Byron’s aunt—testified that Latacha is doting, playful, and
very affectionate towards the children. She said that the children cried for
17
Latacha when she was absent. Latacha’s mother testified that Latacha is a
caring and loving mother who can be protective. Byron’s mother testified that
the children were bonded to Latacha.
Latacha testified that she doubted that Byron sexually abused L.A.
because Latacha’s mother was living with them at the time of the alleged
abuse; but she also admitted that she, herself, had been sexually assaulted as
a minor when living in her mother’s home and had ultimately been placed in
foster care. Green, the psychologist who counseled Latacha, testified that
Latacha was supportive of Byron and that she said she would stand by him until
the State proved that he sexually abused L.A. Latacha said that she was no
longer in a relationship with Byron and would not resume it if Byron were
released from custody. She denied that the two had exchanged letters while
Byron was in jail, but she later spoke of writing to him in jail. Latacha testified
that she allows people with whom she is comfortable to be around her children,
and she said she was comfortable around Byron.
Considering the evidence relevant to the Holley factors, we hold that a
fact-finder could rationally have formed a firm belief or conviction that
termination of Latacha’s parental rights is in the children’s best interest;
therefore, the evidence is legally sufficient to support the jury’s best-interest
findings. Considering all of the evidence, including the evidence that
18
contradicts the jury’s best-interest findings, we hold that it is also factually
sufficient. We therefore overrule the remainder of Latacha’s second issue.
ii. Best interest: Byron 4
Patsel testified that during supervised visitations, Byron had very little to
do with the children and once spent three-quarters of a visitation reading a
magazine. Lusk-Wilkerson testified that he refused to attend sex offender
counseling classes. He attended only three parenting classes (due to lack of
cooperation, not because his incarceration prevented his attendance) and did
not submit to a psychological evaluation. Like Latacha, he was discharged from
a CATS drug treatment program for noncompliance.
Latacha testified that prior to the children’s removal, Byron was the main
economic provider for the family. But when asked about his relationship with
the children, she testified, “Really, he semi-played with them sometimes, but
most of the time he was . . . in his back room messing with” his music records
and turntables.
Considering all of the evidence relevant to the Holley factors, including
the evidence that contradicts the trial court’s best-interest findings, we hold
that a fact-finder could rationally have formed a firm belief or conviction that
4
… Byron challenges only the factual sufficiency of the evidence to
support the jury’s best-interest findings.
19
termination of Byron’s parental rights is in S.A.H.’s and D.S.L.H.’s best interest;
therefore, the evidence is factually sufficient to support the jury’s best-interest
findings. We therefore overrule Byron’s fifth issue.
3. Denial of Byron’s motion to appear in personal clothing and without
restraints
Byron—who was awaiting trial on sexual assault charges stemming from
L.A.’s outcry—appeared throughout the trial of this case in a prison jumpsuit
and leg shackles. In his first issue, Byron argues that the trial court abused its
discretion by denying his motion to appear in personal clothing and without
restraints. The Department tacitly concedes that the trial court erred by
compelling Byron to appear in shackles and prison garb but argues that the error
was harmless.
The issue of shackling a party during trial naturally arises more often in
criminal cases. The United States Supreme Court has admonished that a
criminal defendant should not be shackled in the sight of the jury except as “a
last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061 (1970).
Our court of criminal appeals has echoed that shackling should be avoided
“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), cert. denied, 505 U.S. 1224 (1992). A trial judge must set
20
forth with specificity the reasons supporting the decision to restrain the
defendant. Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992),
cert. denied, 509 U.S. 927 (1993).
Compelling a defendant to appear for trial in prison clothes is similarly
disfavored. “If a defendant objects to being put to trial while dressed in prison
clothes, he should not be compelled to stand trial in that attire.” Randle v.
State, 826 S.W.2d 943, 944–45 (Tex. Crim. App. 1992). Compelling a
defendant to appear in jail clothes during trial bears the indicia of incarceration
that subvert a defendant’s right to a presumption of innocence. Scott v. State,
80 S.W.3d 306, 307 (Tex. App.—Fort Worth 2002, no pet.).
When a trial court erroneously compels a respondent in a parental-rights
termination case to appear in shackles, the reviewing court must apply the
harmless error rule. In re K.R., 63 S.W.3d 796, 800 (Tex. 2001), cert. denied,
536 U.S. 941 (2002). “If the Fourteenth Amendment does not prevent the
application of the ‘harmless error’ rule to shackling in criminal cases, then we
do not see how it can be held to do so in civil cases, even those involving
matters as important as the parent-child relationship.” Id.
In In re K.R., the trial court, without stating its reasons in the record,
compelled the respondent father—who had been convicted of reckless injury to
a child that resulted in the death of one of his two children—to remain
21
handcuffed throughout the parental-rights termination trial. Id. at 798. The
trial court instructed the jury not to infer anything from the fact that the father
was handcuffed other than the fact that he had been convicted of an
unspecified crime requiring incarceration. Id. The supreme court applied the
harmless error rule and concluded that “we must assume, absent any evidence
to the contrary, that [the jury] could . . . follow the trial court’s instruction and
draw no improper conclusions from seeing [the father] sitting in handcuffs.
Nothing in the record even hints that they would have reached a different
verdict had they not seen [the father] in shackles.” Id. at 800–01.
In this case, the trial court apparently considered and denied at a pretrial
hearing Byron’s motion to appear in street clothes and without shackles; there
is no record of the hearing or the trial court’s ruling. On the first day of trial,
Byron briefly re-urged his motion to the visiting judge who tried the case. No
other party offered argument on the motion, and the trial court denied the
motion without explaining why exceptional circumstances or a manifest need
justified Byron’s restraint during trial. In the absence of any such explanation,
and none being apparent from the record, we hold that the trial court erred by
requiring Byron to appear in prison garb and shackles. See Cooks, 844 S.W.2d
at 722.
22
We must now determine whether the error harmed Byron. See In re K.R.,
63 S.W.3d at 800. Unlike In re K.R., the trial court in this case did not instruct
the jury regarding what inferences it could or could not draw from the fact that
Byron was shackled and wearing a jail jumpsuit. But during voir dire, his
counsel made the following explanation to the panel:
I guess we should talk about the elephant in the room before
we go any further. My client is wearing a green jumpsuit. . . . My
client has not been convicted of anything. He’s not in, he’s not in
the Texas Department of Criminal Justice. He’s not been
convicted. He is innocent. He is, however, poor. He cannot make
bail, so he sits here today in a green jumpsuit. . . . He’s not had a
criminal day in court, okay? That has not happened in this case.
There has, however, been an accusation, and ultimately, . . . the
reason we are here is because of that accusation. They do go hand
in hand.
W e have already considered the evidence presented at trial and
determined that it is legally and factually sufficient to support the jury’s verdict
with regard to Byron’s parental rights. As in In re K.R., nothing in the record
suggests that the jury would have arrived at a different verdict had they not
seen Byron in shackles and jail garb. We therefore hold that the trial court’s
error in requiring him to do so was harmless, and we overrule his first issue.
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4. Conclusion
Having overruled all of Latacha’s and Byron’s issues, we affirm the trial
court’s termination order.
PER CURIAM
PANEL F: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
DELIVERED: May 22, 2008
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