In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00015-CV ______________________________
JAVIER D. CORONA, Appellant
V.
PILGRIM'S PRIDE CORPORATION, Appellee
On Appeal from the 276th Judicial District Court Camp County, Texas Trial Court No. CV-05-178
Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss
O P I N I O N
When Javier D. Corona personally guaranteed payment to Pilgrim's Pride Corporation of the accounts of his newly formed Centex Foods Corporation, (1) he expected Centex to be successful in distributing meat products in Austin and its environs. Business did not go as Corona expected, and Centex accumulated a debt to Pilgrim's Pride of $25,538.37, representing thirteen past due invoices.
Pilgrim's Pride filed a suit on a sworn account against Centex and Corona. (2) The trial court granted the motion for summary judgment filed by Pilgrim's Pride and dismissed Corona's counterclaims. Corona appeals pro se. (3)
We affirm the judgment of the trial court because we hold: (1) the trial court properly dismissed Corona's counterclaims, (2) the trial court properly excluded Corona's summary judgment affidavit as hearsay, (3) Corona failed to raise any fact issue on Pilgrim's Pride's claim for debt, (4) the trial court was not required to allow Corona to appear by telephone, (5) Corona's complaint about discovery was not preserved for appellate review, and (6) Corona's complaint about venue was not preserved for appellate review.
(1) The Trial Court Properly Dismissed Corona's Counterclaims
Corona claims the trial court erred by dismissing his counterclaims. In response to Pilgrim's Pride's lawsuit, Corona asserted counterclaims for breach of contract, negligence, fraud, conspiracy to commit fraud, conversion, and malicious prosecution against Pilgrim's Pride. Corona claims that Pilgrim's Pride employees allowed products to be ordered without authorization by Centex and redirected deliveries to unauthorized locations. Corona also claims the suit brought by Pilgrim's Pride was meritless.
With the exception of the malicious prosecution claim, all of the counterclaims alleged by Corona belong to Centex. The claims are all based on the allegation that Pilgrim's Pride employees delivered products to unauthorized locations and the products were charged to Centex's account. Corona sought damages for injuries allegedly caused to Centex, a corporation of which Corona is a shareholder. The Texas Supreme Court has repeatedly held a corporate shareholder cannot personally recover damages for wrongdoing against the corporation. Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990); Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1942) (corporation and its shareholders are distinct legal entities). Further, Texas courts have consistently held that a nonattorney may not appear pro se on behalf of a corporation. See, e.g., Kunstoplast of Am., Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex. 1996) (per curiam); Moore by & Through Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 324, 327 (Tex. App.--El Paso 1994, writ denied); cf. Am. Home Assur. Co. v. Unauthorized Practice of Law Comm., 121 S.W.3d 831, 839 (Tex. App.--Eastland 2003, pet. granted). Corona could not bring these counterclaims either personally or on behalf of the corporation. (4)
Corona failed to allege facts sufficient to plead a case of malicious prosecution. Corona claimed Pilgrim's Pride committed malicious prosecution by bringing suit against Corona on a meritless claim.
To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages.
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996). Corona's counterclaim for malicious prosecution fails to allege any facts sufficient to establish the above elements. Corona failed to allege any facts sufficient to constitute malice, lack of probable cause, or termination of the proceedings in Corona's favor. The trial court did not err in dismissing Corona's counterclaims.
(2) The Trial Court Properly Excluded Corona's Summary Judgment Affidavit as Hearsay
Corona submitted two affidavits as summary judgment evidence, one signed by Corona and one signed by Jorge Suchomlinow. The trial court overruled Pilgrim's Pride's objections to Suchomlinow's affidavit, but sustained the objections to Corona's affidavit. Corona argues the trial court erred in not considering his summary judgment affidavit. In the affidavit, Corona states:
I was informed by a previous employee of my corporation that some of my employees have been receiving merchandise deliveries billed to Centex Foods Corporation. I was told by witnesses that Pilgrim's Pride delivery drivers have been consistently delivering merchandise invoiced to my company to unauthorized locations.
At the summary judgment hearing, Corona stated the prior employee was not a legal resident and was afraid to sign an affidavit.
We review a trial court's rulings in admitting or excluding evidence under an abuse of discretion standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). Under an abuse of discretion standard, we cannot overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). The affidavit in question consists entirely of hearsay. The trial court did not abuse its discretion in excluding Corona's affidavit. See Tex. R. Civ. P. 166a(f); Tex. R. Evid. 802; Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.) (op. on reh'g) (affidavits based solely on hearsay inadmissible as summary judgment evidence).
(3) Corona Failed to Raise Any Fact Issue on Pilgrim's Claim for Debt
Corona argues the trial court erred in granting summary judgment in favor of Pilgrim's Pride because there are genuine issues of material fact. Corona alleged negligence, fraud, breach of contract, and conversion as affirmative defenses. The factual basis of the above defenses can be summarized as alleging Pilgrim's Pride employees conspired with Centex employees to order goods without authorization and to deliver said goods to unauthorized locations. In addition, Corona alleged the defense of partial satisfaction.
The standards of review for both a traditional motion for summary judgment and a no-evidence motion for summary judgment are well established. When reviewing a traditional summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). A nonmovant will defeat a no-evidence summary judgment motion if the nonmovant presents more than a scintilla of probative evidence on each element of his or her claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In a summary judgment hearing, the trial court's decision is based on written pleadings and written evidence rather than live testimony. See Tex. R. Civ. P. 166a(c).
To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1) the existence and ownership of the guaranty contract, (2) the performance of the terms of the contract by plaintiff, (3) the occurrence of the condition on which liability is based, and (4) guarantor's failure or refusal to perform the promise. Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex. Civ. App.--Waco 1978, no writ). Pilgrim's Pride introduced summary judgment evidence in the form of business records with the necessary business-records affidavit. Pilgrim's Pride's summary-judgment evidence conclusively established that Corona signed the guaranty agreement for payment of Centex obligations to Pilgrim's Pride, that Centex owed Pilgrim's Pride a balance of $25,538.37, that Pilgrim's Pride had demanded Corona pay the indebtedness of that debt, and that Corona failed to do so.
In response, Corona presented the trial court with two affidavits as summary judgment evidence. As referenced above, the trial court sustained Pilgrim's Pride's objections to Corona's affidavit because it was entirely hearsay. Corona's remaining summary judgment evidence consisted of the affidavit of Suchomlinow. Suchomlinow's affidavit provides in pertinent part:
I witnessed PILGRIM'S PRIDE CORPORATION's delivery trucks unload many cases of meat products at my place of business parking lot (El Dorado Meat Market, 5001 Airport Blvd[.], Austin, TX 78746). I witnessed the merchandise being personally handed to then CENTEX's employee Ismael Deleon. It was until [sic] on or about May 20th, 2005 that I approached the delivery drivers and emphatically prohibited them of making any further deliveries at my place of business since I finally realized there was some suspicious activity going on between PILGRIM's delivery drivers and Ismael Deleon. I told the delivery driver that I would report them if such behavior would continue.
Suchomlinow's affidavit merely provides some evidence that Centex employees received products from Pilgrim's Pride at an "unauthorized" location. Suchomlinow's belief that the activity was suspicious is less than a scintilla of evidence that the products delivered were not accepted and used by Centex or that Centex was invoiced for any products it did not receive. There is no evidence of negligence, fraud, breach of contract, (5) or conversion.
Corona also argues the debt was partially satisfied because he offered to tender assets of the corporation to satisfy the outstanding debt. (6) There is no evidence in the record that Pilgrim's Pride agreed to accept the corporate assets or received partial payment of the outstanding debt. Under the terms of the guaranty agreement, Corona was an absolute guarantor of payment. Absolute guaranties are conditioned solely on default of the principal debtor. Mid-South Telecomms. Co. v. Best, 184 S.W.3d 386, 391 (Tex. App.--Austin 2006, no pet.). An absolute guarantor is primarily liable and waives any requirement that the creditor take action against the principal obligor as a condition precedent to his or her liability on the guaranty. Hopkins v. First Nat'l Bank at Brownsville, 551 S.W.2d 343, 345 (Tex. 1977); Joseph Thomas, Inc. v. Graham, 842 S.W.2d 343, 345 n.2 (Tex. App.--Tyler 1992, no writ). Because Corona was an absolute guarantor, Pilgrim's Pride was not required to seek recovery from Centex before instituting suit against Corona.
Corona also argues there are genuine issues of material fact concerning whether Pilgrim's Pride permitted Centex to exceed the contractual credit limit. Corona, though, did not expressly plead a defense based on a material alteration of the contract. On its application for credit, Centex applied for a credit limit of $20,000.00, but Pilgrim's Pride allowed Centex to accumulate a debt of $25,538.37.
Corona did not adequately raise this issue in any response before the trial court. A summary judgment cannot be reversed on appeal due to an issue that was not expressly and timely presented to the trial court by written response or other document. Tex. R. Civ. P. 166a(c); see Clear Creek Basin Auth., 589 S.W.2d at 677. Corona mentions that the credit limit was exceeded while asserting negligence as an affirmative defense. The amended response provides as follows in pertinent part:
3. Defendants claim negligence as an affirmative defense and do not recognize the amount on the alleged defaulted invoices and claims that Plaintiff's negligent behavior created and compounded the alleged default. Additionally, during this alleged default the credit line amount was raised unilaterally by Plaintiff. Defendants never requested nor authorized such an increase so therefore it is not binding.
The fact the credit limit was exceeded is contained in a paragraph alleging negligence. Corona failed to provide any legal argument as to the effect of exceeding the credit limit.
The above quotation was insufficient to expressly present the defense for a material alteration of the contract to the trial court. While the quotation probably was sufficient to inform the trial court of the facts complained of, the quotation is insufficient to inform the trial court of any legal effect of those facts. We are prohibited from considering grounds the nonmovant failed to expressly present to the trial court in a written response. Brown v. Reeter, 170 S.W.3d 151, 154 (Tex. App.--San Antonio 2005, no pet.). To the extent Corona may have had a partial defense for a material alteration of the contract, this issue is not preserved for our review. Further, Corona has failed to provide this Court with any legal argument or authority as to the effect of exceeding the credit limit. As such, this issue was also inadequately briefed on appeal. See Tex. R. App. P. 38.1.
Because there are no genuine issues of material fact, the trial court did not err in granting summary judgment in favor of Pilgrim's Pride.
(4) The Trial Court Was Not Required to Allow Corona to Appear by Telephone
Corona argued that, because of his medical condition, he could not physically appear in Camp County. Although not bedridden, Corona argued extended stays in a wheelchair could pose a severe health risk because he is subject to decubitus ulcers. Corona argues the trial court was required to grant his request under the Americans with Disabilities Act (ADA). The trial court permitted Corona to attend the summary judgment hearing by telephone. At the hearing, the trial court informed Corona he would not be allowed to continue to appear by telephone.
The trial court did not abuse its discretion in denying Corona's motion to appear by telephone. The Texas Rules of Judicial Administration permit, but do not require, courts to allow parties to attend pretrial hearings via telephone. See Tex. R. Jud. Admin. 7a(6)(b). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. § 12132 (West 2007). To state a claim under Title II, Corona must allege that (1) he is a "qualified individual with a disability"; (2) he is being excluded from participation in or being denied the benefits of some "services, programs, or activities" by reason of his disability; and (3) the entity which provides the service, program, or activity is a public entity. See id.; Kiman v. N.H. Dep't of Corr., 451 F.3d 274, 283 (1st Cir. 2006); Soto v. City of Newark, 72 F. Supp. 2d 489, 492 (D.N.J. 1999). The ADA requires public entities to provide "meaningful access" to their programs and services. Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003); see also Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
Under regulations promulgated by the Department of Justice, public entities are required to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability . . ." 28 C.F.R. § 35.130(b)(7) (2003); see 42 U.S.C.A. § 12134(a) (West 2003). The regulations also provide:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity
shall give primary consideration to the requests of the individual with disabilities.
28 C.F.R. § 35.160 (2008). However, a public entity is not required "to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.164 (2008).
Corona has failed to cite any authority, nor are we aware of any, for the proposition that a violation of the ADA voids an otherwise valid judgment. A person alleging discrimination under Title II of the ADA has the remedies, procedures, and rights set forth in Section 505 of the Rehabilitation Act of 1973. 42 U.S.C.A. §§ 12131-65 (West 2003); 42 U.S.C.A. §§ 2000e-5, 2000e-16 (West 2003); 29 U.S.C.A. § 794a (West 2003); Am. Jur. 2d Americans with Disabilities Act Analysis and Implications § 307 (LEXIS 2007).
It is not necessary for us to decide whether Corona's due-process rights were violated by the alleged violation of the ADA. Assuming that a violation of the ADA could void a judgment, the First District Court of Appeals has held the claim is an affirmative defense that must be pleaded and proved to avoid waiver. In re C.M., 996 S.W.2d 269, 270 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Corona failed to plead an affirmative defense based on a violation of the ADA. Even if Corona's motion to transfer venue pled an affirmative defense based on a violation of the ADA and assuming a violation of the ADA would void a judgment, Corona has failed to prove the trial court's actions violated the ADA. The trial court took judicial notice the courthouse was wheelchair accessible, and Corona failed to prove he could not access the courtroom. Although Corona did provide some medical records to prove he is a paraplegic, Corona failed to provide the trial court with any evidence he could not travel to Camp County to attend court proceedings. A public entity is not required to grant the specific accommodation requested, so long as the accommodation granted is adequate. The record does not establish the accommodation provided, i.e., a wheelchair accessible courtroom, was inadequate. Further, the accommodation requested by Corona might fundamentally alter the proceedings. See McLaughlin v. Pyles, No. 99CA0013, 1999 Ohio App. LEXIS 5556 (Ohio Ct. App. 1999) (not designated for publication) (refusal to allow party to appear by telephone did not violate ADA). Corona has not shown the trial court abused its discretion in not granting his motion to appear by telephone.
(5) Corona's Complaint About Discovery Was Not Preserved for Appellate Review
Corona filed a motion to compel discovery March 1, 2006. According to Corona, Pilgrim's Pride ignored discovery requests made the prior November, including interrogatories, requests for disclosure, requests for production, and requests for admissions. Corona did not attempt to secure a ruling on his motion to compel. At the hearing for summary judgment, Corona complained about Pilgrim's Pride not responding to his discovery requests. The trial court noted there was no record Corona had ever requested a hearing. Corona admitted he had not requested a hearing and stated he "was under the impression that once you filed a motion that automatically the motion would be docketed." At the hearing, Corona did not explicitly request a ruling on the motion.
The Texas Supreme Court has held "the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct." Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). This is in accord with the general rule that, as a prerequisite to a complaint for appellate review, the record must show that the trial court, either expressly or implicitly, ruled on the motion. Tex. R. App. P. 33.1(a)(2)(A). Admittedly, there is a significant difference between a hearing on a motion for summary judgment and a trial. But the failure "to obtain a pre-trial ruling on any discovery dispute existing before commencement of summary judgment proceedings constitutes a waiver" of any claim for relief. White v. Cole, 880 S.W.2d 292, 296 (Tex. App.--Beaumont 1994, writ denied). We agree. Corona failed to present the motion to compel discovery to the trial court until the summary judgment hearing. At the hearing, Corona did not request the trial court rule on the motion. Further, Corona did not file a motion for continuance. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) ("When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance."). Corona did not preserve error, if any, for our review.
(6) Corona's Complaint About Venue Was Not Preserved for Appellate Review
Corona filed a motion to transfer venue October 17, 2005, alleging that defending himself in Camp County, Texas, was too burdensome because he is a paraplegic. According to Corona, extended stays in a wheelchair could pose a severe health risk because he is subject to decubitus ulcers. Corona states he filed, in December 2005, a copy of his medical discharge summary. The only medical discharge summary we have located in the record was attached to his amended motion to transfer venue, which was filed after the trial court had rendered summary judgment in favor of Pilgrim's Pride. The medical discharge corroborates Corona's medical condition, but it does not contain any information establishing Corona was medically unable to appear in Camp County.
Corona failed to preserve any error for our review. It was Corona's responsibility to request a hearing and obtain a ruling on the motion to transfer venue. See Tex. R. Civ. P. 87. Corona waived any issue concerning venue by not requesting a hearing or ruling. See, e.g., Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417, 418-19 (Tex. App.--Houston [1st Dist.] 1995, no writ).
Even if Corona had preserved error, Corona has not shown the trial court erred. The guaranty agreement contained a forum selection clause establishing Camp County, Texas, as the appropriate venue and waiving "any objections to the above-referenced jurisdiction and venue." The Texas Supreme Court has held "enforcement of a forum-selection clause is mandatory, absent a showing that 'enforcement would be unreasonable and unjust or that the clause was invalid due to fraud or overreaching.'" Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex. 2005); see In re Automated Collection Techs., 156 S.W.3d 557, 559 (Tex. 2004) (per curiam); In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (adopting the standards applied by the United States Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)). The party opposing enforcement of a forum selection clause bears the burden of showing enforcement would be unreasonable or unjust, or that the clause is invalid. Automated Collection Techs., 156 S.W.3d at 559. Camp County, Texas, is not "remote alien forum." See AIU Ins. Co., 148 S.W.3d at 114. Even if Corona had preserved error, he has not shown either that the forum selection clause is unenforceable or that he was medically unable to attend proceedings in Camp County.
The trial court did not err in dismissing Corona's counterclaims, and Corona raised no genuine issue of material fact on Pilgrim's Pride's claims against him. Even if a violation of the ADA would result in a void judgment, Corona failed to plead such a defense and failed to show that an ADA violation occurred. Because Corona's affidavit was entirely hearsay, the trial court did not abuse its discretion in sustaining Pilgrim's Pride's objection to it. Corona failed to preserve any error on his motions to compel discovery and to change venue.
For the reasons stated, we affirm the trial court's judgment. (7)
Josh R. Morriss, III
Chief Justice
Date Submitted: September 10, 2007
Date Decided: January 18, 2008
1. Corona formed Centex Foods Corporation with business partner Ismael DeLeon.
2. The suit against Centex was severed because Centex declared bankruptcy.
3. The law is well settled that "[a] party proceeding pro se must comply with all applicable procedural rules" and is held to the same standards as a licensed attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.--Texarkana 1997, no pet.). "On appeal, as at trial, the pro se appellant must properly present his or her case." Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.--Dallas 2004, pet. denied). We review and evaluate pro se pleadings with liberality and patience, but otherwise apply the same standards applicable to pleadings drafted by lawyers. Foster v. Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.--Texarkana 2002, pet. denied).
4. We also note Centex had declared bankruptcy. The record does not contain any indication that the bankruptcy trustee had authorized these counterclaims. Further, Centex had been severed from this lawsuit at the time the counterclaims were filed.
5. We note Corona claims Pilgrim's Pride deviated from the standard course of dealing between the parties by not notifying Corona by telephone of the past due invoices or the fact that Centex's credit limit had been exceeded. Corona, though, presented no evidence to support this allegation. "Pleadings do not constitute summary judgment proof." Clear Creek Basin Auth., 589 S.W.2d at 678. Even if there was evidence to support this allegation, Corona has failed to provide this Court with legal authority establishing this deviation as a defense to his obligations under the guaranty agreement. See Tex. R. App. P. 38.1.
6. We note Corona alleges the "bankruptcy trustee has offered payment in the form of the corporation's assets," but fails to provide this Court to a cite in the record in support of this statement. The record does contain a letter to Pilgrim's Pride where Corona offers to tender the corporation's assets to satisfy the debt. We will assume, without deciding, that the letter constitutes summary judgment evidence.
7. Corona also alleges the trial court engaged in ex parte communications with Pilgrim's Pride, but there is no support in the record for this claim.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00162-CR
______________________________
VAUGHN RAY BELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. CR-09-23218
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
Dissenting Opinion by Justice Carter
O P I N I O N
In light of the Texas Court of Criminal Appeals recent opinion in Snowden v. State, No. PD-1524-10, 2011 Tex. Crim. App. LEXIS 1321 (Tex. Crim. App. Sept. 28, 2011) (designated for publication), we have withdrawn our previous opinion in this case issued September 14, 2011, and substitute this opinion. See Tex. R. App. P. 19.1.
At some point during Vaughn Ray Bells Fannin County jury trial for possessing the drug Ecstasy[1]and without the record reflecting any action or threat by Bell that warranted such actionsome form of physical restraint was placed on his person for the remainder of his trial.[2]
On appeal, Bell asserts that the evidence is insufficient to link him to the contraband and that the trial court reversibly erred in shackling Bell during trial. We conclude (1) sufficient evidence links Bell to the Ecstasy and (2) shackling Bell during trial, without individualized evidence of danger from Bell, was error, but (3) the shackling error was harmless.
(1) Sufficient Evidence Links Bell to the Ecstasy
Bell argues the evidence is legally insufficient to link him to the contraband. The State responds that the evidence is sufficient to tend to connect Bell to the contraband.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial courts judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
At trial, the State was required to prove that Bell exercised control, custody, management, or care over the Ecstasy and that he knew the matter possessed was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Penal Code Ann. § 1.07(a)(39) (West 2011). Mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans, 202 S.W.3d at 162. Presence or proximity to drugs, however, when combined with other direct or circumstantial evidence, may be sufficient to establish control, management, custody, or care if the proof amounts to more than a strong suspicion or probability. Id. The affirmative links rule is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone elses drugs. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.
Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981).
One or more of the factors from the following nonexclusive list have been used to establish a persons possession of contraband:
(1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself or herself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances.
Muckleroy v. State, 206 S.W.3d 746, 748 n.4 (Tex. App.Texarkana 2006, pet. refd); see Evans, 202 S.W.3d at 162 n.12. The number of links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.Dallas 2003, no pet.).
While on patrol, Kevin Sanmann, a trooper with the Texas Department of Public Safety, noticed the vehicle driving immediately behind him lacked a front license plate and conducted a traffic stop. After initiating contact with the driver, Sanmann detected a moderate odor of marihuana in the vehicle. The driver of the vehicle informed Sanmann that he did not have a drivers license. After questioning the driver outside the vehicle, Sanmann approached Bell, who was still sitting in the passenger seat. Sanmann observed marihuana residue on both sides of [Bells] legs and a little bit right in the center, between his legs. Sanmann then requested Bell to step out of the vehicle and conducted a warrant check using Bells name and date of birth. The warrant check discovered the existence of a warrant for Bells arrest. Sanmann conducted a search of the vehicle and discovered marihuana residue on the passenger seat and passenger floorboard, as well as a pill bottle located between the console and the passenger seat. The pill bottles contained pills with a stamp resembling a fish. Sanmann testified pills containing stamps that resemble objects or images are usually Ecstasy. Neither Bell nor the driver accept[ed] responsibility for the pill bottle. Due to the position of the pill bottle, Sanmann arrested Bell.
In addition to Bells presence at the scene, there are multiple factors linking Bell to the Esctasy. Bell was closer to the contraband and the contraband was more accessible to Bell. The pill bottle was shoved down between the console and the passenger seat. The pill bottle was in plain view. Sanmann testified that the top quarter of the pill bottle was exposed and that it could be seen outside the vehicle. Bell possessed other contraband, marihuana, in the same vicinity as the Esctasy. Besides the small amount of marihuana residue observed on the passenger seat,[3] Sanmann testified [j]ust very little residue was on Bells clothes. Sanmann testified he did not discover any marihuana residue on the drivers side of the vehicle. The jury could have reasonably concluded Bell made furtive gestures. While questioning the driver, Sanmann observed Bell, who was a passenger in the vehicle, inside the car, moving around. Although the record does not conclusively establish these gestures were furtive, a rational juror could have concluded they were.[4] Bell owned or had a greater right of possession of the vehicle where the contraband was located. Sanmann testified that the car belonged to Bells wife, Tanya.[5]
Viewing these factors in the light most favorable to the verdict and since it was within the purview of the jury to weigh credibility and conflicts in the evidence, we conclude that a rational juror could find the essential elements of the offense beyond a reasonable doubt. The evidence supporting Bells conviction was sufficient to show Bell had control, management, custody, or care over the Esctasy.
(2) Shackling Bell During Trial, Without Individualized Evidence of Danger from Bell, Was Error
Bell also argues that his rights to due process and presumption of innocence were violated by his being restrained during trial. Bell asserts that the trial court has a routine practice of shackling all criminal defendants who are in custody.
After the trial on the merits began, but before the conclusion of the guilt/innocence phase, the trial court ordered Bell shackled. The trial courts statements on the record strongly suggest its routine practice is to restrain all criminal defendants who have not been released on bond. The trial court stated, Everybody who is in custody has the same necessity of restraint.[6] With admirable candor,[7] the State conceded at oral argument that the trial court routinely restrains all criminal defendants who have not been released on bond.[8]
In its brief, the State concedes the trial court erred by requiring Appellant to be shackled without finding a particularized reason for shackling that was specific to Appellant. There is a good reason for this concessionthe law is well established that routine shackling of criminal defendants is prohibited. The law has long forbidden routine use of visible shackles during the guilt phase. Deck v. Missouri, 544 U.S. 622, 626 (2005).
Almost ninety years ago, the Texas Court of Criminal Appeals stated:
[I]f the record discloses no good reason for having the prisoner manacled during the trial the same will be cause for reversal; 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.
. . . .
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.
Gray v. State, 268 S.W. 941, 94950 (Tex. Crim. 1924) (op. on rehg). This general rule has been reaffirmed repeatedly.
The Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the Texas Constitution guarantee criminal defendants the right to a fair trial. U.S. Const. amend. XIV; Tex. Const. art. I, § 19; Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.Houston [1st Dist.] 2006, no pet.). The use of restraints, such as shackles, cannot be justified based on a general appeal to the need for courtroom security or simple reference to the severity of the charged offense. Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991). The appearance of a defendant in shackles before a jury during the guilt/innocence portion of trial, as well as the punishment phase,[9] can violate the defendants Fifth and Fourteenth Amendment rights to due process. Deck, 544 U.S. at 62934 (2005). Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. Id. at 630. In addition to undermining the presumption of innocence, visible[10] shackling can interfere with the accuseds ability to communicate with his lawyer, ability to participate in his own defense[,] and affront[s] the dignity and decorum of judicial proceedings that the judge is seeking to uphold. Id. at 63031. For these reasons, shackling is called for only in rare circumstances, and the record must detail the grounds for such action. Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992); Gray, 268 S.W. at 950.
Before restraining a defendant at trial, a trial court must set forth with specificity the reasons supporting its decision to restrain the defendant. Cooks, 844 S.W.2d 722; Long, 823 S.W.2d at 282 (the record must clearly and affirmatively reflect the trial judges reasons therefor); Marquez v. State, 725 S.W.2d 217, 227 (Tex. Crim. App. 1987). Only in rare circumstances is shackling called for, and in such event, the record must detail the grounds for such action. Long, 823 S.W.2d at 282; Jacobs v. State, 787 S.W.2d 397, 407 (Tex. Crim. App. 1990); Marquez, 725 S.W.2d at 227. Even if a trial court does not err in ordering shackles, all efforts must be made to ensure the jury does not view the defendant in shackles. Long, 823 S.W.2d at 282; Ziolkowski v. State, 223 S.W.3d 640, 643 (Tex. App.Texarkana 2007, pet. refd).
On appeal, the role of an appellate court is to determine whether the trial court erred in ordering the restraints. Long, 823 S.W.2d at 282. Even in the face of error, reversal may not be called for if such was harmless. Cooks, 844 S.W.2d at 723; Long, 823 S.W.2d at 283. In this case, the record fails to reveal any reasons, other than a general concern for courtroom safety and general concern that a criminal defendant might flee, to justify the use of restraints. The trial court did not base its decision on any evidence that Bell had previously committed violent acts, that Bell was likely to flee, or that Bell had otherwise disrupted the trial.[11]
Certainly courtrooms are places where violence can occur.[12] Our role is not to second guess the trial courts discretion in controlling the courtroom and ensuring the safety of the litigants, participants, and witnesses in attendance. If a criminal defendant has acted in a manner providing justification for restraints, it is well within the trial courts sound discretion to order such defendant restrained during trial. A trial court, though, abuses its discretion when the court restrains a criminal defendant without reasons, on the record, specific to that defendant. Because the record in this case fails to contain any justification for the shackling beyond a general concern for courtroom safety, the shackling of Bell was error.
(3) The Shackling Error Was Harmless
Bell argues, citing Deck, 544 U.S. at 62934, that the State has the burden to establish beyond a reasonable doubt that the error was harmless. Because there is no evidence the error did not result in harm, Bell argues the error was reversible. In Deck, the United States Supreme Court concluded that the lack of evidence showing no harm mandated a reversal. Id. at 634. As noted above, Deck concerned visible restraints. The United States Supreme Court did not address whether the same standards for harmless error would apply if the restraints are not perceived by the jury. We conclude Deck is distinguishable from this case due to the fact that there is no evidence, in this case, that the restraints were perceived by the jury. To the extent the tests may differ, we will evaluate the effect of the error in this case under the Chapman test,[13] as codified by Rule 44.2(a) of the Texas Rules of Appellate Procedure as interpreted by Texas caselaw.
In our original opinion in this case, we used the factors announced in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). In Harris, the Texas Court of Criminal Appeals provided the following guidance:
[T]he court should examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Further, the court should consider how much weight a juror would probably place upon the error. In addition, the Court must also determine whether declaring the error harmless would encourage the State to repeat it with impunity.
Id. at 58788.
In Motilla v. State, the Texas Court of Criminal Appeals clarified that overwhelming evidence of guilt, while not determinative, is a factor that can also be considered. 78 S.W.3d 352, 35657 (Tex. Crim. App. 2002) (explaining discussion in Harris concerning weight a juror would probably place on the error factor). In Mason v. State, the Texas Court of Criminal Appeals held the factors announced in Harris are not applicable to Rule 44.2(b) of the Texas Rules of Appellate Procedure harmless error analysis of nonconstitutional errors. 322 S.W.3d 251, 258 n.10 (Tex. Crim. App. 2010) (noting that the Harris factors might still be applicable in Rule 44.2(a) analyses).
Since our original opinion was released, the Texas Court of Criminal Appeals has announced the elimination of two of the Harris factors: the source of the error and whether declaring the error harmless would encourage repetition of the error with impunity. Snowden, 2011 Tex. Crim. App. LEXIS 1321. The court reasoned that the above two factors were punitive and that Harris erred in including within its ambit any concern for the integrity of future trials. Id. at *17. The court emphasized the inquiry should adhere strictly to the question of whether the error committed in a particular case contributed to the verdict obtained in that case. Id. The Texas Court of Criminal Appeals, though, did confirm that the remaining Harris factorsthe nature of the error, whether the error was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the course of its deliberationscontinue to be valid considerations. Id. at *18. The court, though, noted these factors are not exclusive considerations in any particular case and our inquiry should be whether, or to what extent, the error may have contributed to the conviction. Id.
The first remaining factor is the nature of the error. The error in this case violates well established constitutional rights. Conducting a trial where the defendant is in shackles, without a particularized showing of the need for the shackles in that defendants case, is obnoxious to the spirit of our laws and all ideas of justice. Ziolkowski, 223 S.W.3d at 643 (quoting Gray, 268 S.W. at 950). We continue to believe that the violation of a well established constitutional right adversely affects the integrity of the process leading to a conviction. In the pre-Snowden analysis, this factor would strongly favor a finding of reversible error. Given the Snowden rationale, however, our harm analysis should assess just the effect of the error on this particular verdict or result. Although obnoxious to the spirit of our laws, the nature of this error did not contribute to the judgment in this case. This factor weighs neither for nor against a finding of harm.
The second factor is the extent the error was emphasized by the State. We have not been directed to anywhere in the record that the State emphasized the error in any manner. Bell argues the State moved one of the briefcases shielding the shackles from the jurys view when it used it as a demonstrative aid. The record does reflect that the State used a briefcase as a demonstrative aid, but the record does not reflect that this briefcase was one of the briefcases blocking the shackles from the jurys view.[14] We have not been directed to anywhere in the record the State made a reference to or otherwise drew attention to the defendants restraints. Our own review of the record has not revealed any such reference. Clearly, the State did not emphasize the error or seek in any way to benefit from the error. This factor weighs strongly in favor of a finding that the error is not harmful.
The third factor is the weight a juror would probably place on the error, assuming he or she was aware of the error. In this connection, we should also consider whether the evidence was overwhelming as well as the character of the error and how it might be considered in connection with other evidence in the case. Motilla, 78 S.W.3d at 359. Although the evidence of guilt was sufficient, the evidence linking Bell to the contraband was not overwhelming. The record, though, is silent on whether the jury perceived the shackles. In fact, the record does contain indications that steps were taken to keep the jury from perceiving the shackles. We conclude that this factor does not weigh for a finding of harm.
The fourth factor is the errors probable collateral consequences. This factor requires us to contemplate such things as the disparaging of a sole defense, as well as a probable affect on the harshness of the punishment. Higginbotham v. State, 807 S.W.2d 732, 737 (Tex. Crim. App. 1991). As noted above, the affirmative links, although sufficient, were not overwhelming. Bells main defense was that the contraband did not belong to him. It should be contemplated that the restraints, if perceived by the jury, could have alleviated some lingering doubts the jury had concerning whether Bell possessed the contraband. While Bell had an extensive criminal history, here he received the maximum sentence available. Again, though, because the record is silent on whether the jury perceived the shackles, and steps were taken to avoid the jury perceiving them, we do not weigh this factor for a finding of harm.
After careful consideration of the above factors, we conclude the error in this case did not result in harm to this defendant in this case. The lack of emphasis placed on the error by the State weighs strongly against a finding of harm, and the remaining factors do not suggest a finding of harm. The Texas Court of Criminal Appeals has instructed that our inquiry must be focused on whether the error may have contributed to this defendants conviction. We conclude, beyond a reasonable doubt, that the error by the trial court did not contribute to the judgment in this case.
For the reasons stated, we affirm.
Josh R. Morriss, III
Chief Justice
DISSENTING OPINION
What is the appellate courts duty when it is clear that a trial court deliberately and repeatedly violates well-known and established constitutional rights of those accused of a crime? We must eradicate the practice. The majority opinion fails to do this and has now reversed its course based on a recent Texas Court of Criminal Appeals opinion, Snowden v. State.[15] I believe this Courts original opinion is sound. The stated reason for this switch is that Snowden no longer allows an appellate court to consider, on the issue of harmfulness of error, whether the failure to reverse for an admitted constitutional error would encourage the State to repeat that error with impunity.
I do not think Snowden applies in this case. In Snowden, the error was committed by the States attorney, whereas here the action found to be a constitutional error (placing a chain connecting two iron ankle rings on the ankles of the defendant during jury trial) was the action of the trial court. In Snowden, the error was the improper argument of the States counsel which infringed on the defendants right to remain silentan action taken by one of the advocates in the proceeding; the trial court merely ruled. The acts which constituted the error in this case were solely and completely caused by the trial judge without involvement by the States counsel. The State never requested that the defendant be shackled during the trial, and the record reveals that the chain was placed on the defendant as a practice of this particular court for those who are in jail awaiting trial, but apparently not for those able to afford bail (everybody who is in custody has the same necessity of restraint). Apparently, shackling is required for all in custody with no judgment or discretion being exercised on an individual basis. It is the duty of the trial court to attempt to avoid error; only the appellate courts may determine, after a review of the entire case, if an error is of such a nature as to require another trial. In oral argument, States counsel conceded there was no basis for shackling the defendant and agreed that constitutional error occurred.
Generally, the trial court commits error by ruling on issues brought before it by one of the parties. It is a far different situation when the action which is a constitutional error is caused by the judge. If counsel seeks to continually violate well-established constitutional provisions, the trial judge is in a position to prevent or control it. Who prevents the judge from continually violating established constitutional rights? A basic premise of our system of justice is that the accused should be presumed innocent until proven guilty beyond a reasonable doubt. It is the function of the trial judge to institute procedures that will assure thisinstead, here, the judge, without any cause, ordered that a chain be placed on the defendants ankles during the jury trial. The record indicates this is a repeated practice in this trial court, but we are now holding that since we cannot know for sure if the jury saw the chain or heard it rattle, the trial courts deliberate violation of such a well-known constitutional right does not constitute reversible error.[16]
Additionally, it is important that our courts operate with dignity. The use of such devices undermines the dignity of judicial proceedings. Deck v. Missouri, 544 U.S. 622, 631 (2005). Even if we now believe that consideration of the prevention of continual violation of constitutional rights is irrelevant as to the propriety of the outcome, it is highly relevant to the the integrity of the process leading to the conviction.
As one who spent twenty-one years on the trial bench and has devoted most of his life attempting to provide fair operation of one small part of our system of law, it is deeply offensive to observe the sanctioning of this practice. In essence, this case saysJudge, you may continually violate the most basic constitutional rights of our citizens with impunity, the very Constitution you took an oath to protect and defend, and your case will be affirmed unless the defendant is clever enough to produce evidence, contrary to his best interest at trial, that the jury saw or heard the chains. Even if the jury saw or heard the chains and it is not reflected in the record, you are safe with the appellate courts, regardless of the harm your continual unconstitutional practice does to the perception of fairness and the integrity of the process in our courts.
Due to their very nature, constitutional errors require more scrutiny. When constitutional errors occur, our inquiry should be focused on the integrity of the process. In other words, did the defendant receive a fair trial. The restraints in this case were described as a chain connecting two iron ankle rings; our Texas Court of Criminal Appeals has found a trial with a prisoner in irons [is] obnoxious to the spirit of our laws and all ideas of justice. Gray v. State, 268 S.W. 941, 94950 (Tex. Crim. 1924) (op. on rehg). No trial can be considered a fair trial where a defendant, who has not been shown to be a threat, is literally tried in chains that may have been seen or heard by the jury; an error depriving a defendant of a fair trial cannot be considered harmless. The error here was of constitutional magnitude; it was knowingly committed and is an ongoing practice in this trial court; there is no basis to reasonably conclude that beyond a reasonable doubt, the error did not contribute to the defendants conviction or punishment. Tex. R. App. P. 44.2. It should be remanded for another trial.
I respectfully, but vigorously, dissent.
Jack Carter
Justice
Date Submitted: November 2, 2011
Date Decided: November 3, 2011
Publish
[1]Specifically, Bell was charged with possessing one gram or more, but less than four grams, of a controlled substance in penalty group 2, to-wit: Ecstasy. The controlled substance known as Ecstasy is 3-4 methylenedioxymethamphetamine. The State provided notice of intent to enhance Bells punishment, alleging two prior felony convictions. See Tex. Health & Safety Code Ann. § 481.116 (West 2010); Tex. Penal Code Ann. § 12.41(a)(3) (West 2011).
[2]The jury found Bell guilty, found both enhancements to be true, and assessed punishment at twenty years imprisonment. The trial court sentenced Bell accordingly.
[3]We note the record contains a dismissal which states that the quantity was not a useable quantity. At oral argument, Bell argued we should not consider the presence of marihuana because it was not a useable quantity. We disagree; the presence of contraband is an affirmative link even if not a useable quantity.
[4]On cross-examination, Sanmann testified that he had asked Bell to look for the proof of insurance and conceded that Bell could have been following his instructions and that the movements did not factor into his decisionmaking of whether or not [Bell] possessed something. On direct examination, Sanmann testified, based on his experience as a police officer, when someones moving around a lot in the vehicle, that theyre hiding stuff.
[5]On cross-examination, Sanmann testified that, on one occasion, Bell said wife and on another, Bell said girlfriend. The record at guilt/innocence does not clearly establish the specific relationship of the parties. Regardless of whether Tanya was Bells wife or girlfriend, the jury could reasonably deduce that Bell had a greater right of possession of the vehicle than the driver. We note that, during the punishment phase, Tanya testified she had been married to Bell for four years.
[6]During the guilt/innocence phase of trial, the following exchange occurred outside the presence of the jury:
[Defense Counsel]: . . . . I understand that we took a break because my client didnt have any leg irons on him and, currently, for the record, he has a chain that is linked between his two ankles, if Ive described that correctly. We would object to that being used as a device in front of the jury. I think he has the right to a presumption of innocence and this chain, even though we will do the best to keep the jury from seeing it, if they do see it, thats going to destroy this presumption of innocence and deny him his right to a fair trial.
We already have a sheriffs deputy standing within arms reach of him, which should be sufficient amount of security. We have a bailiff thats been present. I believe we have two bailiffs now and -- in addition to -- two or three highway patrolmen right outside. I dont think the chain is necessary. I think its going to deprive him of a fair trial and his rights under the United States and Texas Constitution. So, were going to object to that.
THE COURT: Any response from the State?
[The State]: Yes, Your Honor. I would just ask the Court to have the bailiff provide a report as -- sitting in the various seats of the jurors seats -- as to whether he can see the defendants seat as the -- as hes currently configured and if he can see that the defendant is chained, making an obvious attempt to see that.
THE BAILIFF: No, maam, you cant. You can see the pants leg and the pants leg covers the cuffs up, so you cannot see the chains.
[Defense Counsel]: But that presupposes hes not allowed to move and, if he moves any, theyre going to hear a chain rattle and theyre going to look over here and go, whos rattling a chain, whos chained up, and it can only be my client thats chained up. Ive been getting up, walking around; the bailiff has; everybodys been getting up except Ray. They hear that chain going, theyre going to think he must have been doing something that got him chained up. Theres really no need to have him chained up, Judge.
I dont think any of his offenses are escapes or failure to appears. Im not swearing to that, but, as I remember off of his criminal history, he doesnt have anything like that, Judge. I dont think theres any evidence of any intent to flee.
THE COURT: [Defense Counsel], your objection is noted. It will otherwise be overruled. The bailiffs obligation is to the jury, not to an inmate. There is a person here to handle that. Everybody who is in custody has the same necessity of restraint. The difficulty is, the sheriffs office has one discreet and, therefore, we only have the one thats been available. We have allowed for yall to position briefcases, and somebody went down and got an extra one so you have two. The State also has one under there. So, its the Courts opinion that there is no impact on the presumption, and the defendant will just be mindful about movement of his legs, and we will be sure to give breaks for everybody to use the restroom and he can move his legs at that time.
(Emphasis added.)
[7]We appreciate the States professionalism and integrity in making this concession and commend the State for clarifying the record in this regard.
[8]The State represented to this Court that a more discreet restraint is normally used than the restraint in this case. However, as this Court stated in Austin v. State, No. 06-07-00161-CR, 2008 Tex. App. LEXIS 8630 (Tex. App.Texarkana Nov. 18, 2008, no pet.) (mem. op., not designated for publication), whether a restraint such as a leg brace was visible is not the correct question. While a restraint which is not visible may result in less harm, a trial court errs if it restrains a criminal defendant without specific reasons for the restraints in the record.
[9]In Deck, the United States Supreme Court announced that a trial court errs in shackling a defendant during the punishment phase of a trial when there is no evidence that the defendant was violent, likely to flee, or had otherwise disrupted the trial. Deck, 544 U.S. at 63031.
[10]Deck concerned restraints that were only visible. See id. at 628. The law, though, is well-established that any form of restraints requires the record to reflect reasons specific to the criminal defendant. See Austin, 2008 Tex. App. LEXIS 8630. This case presents an additional issue not discussed by the United States Supreme Court in Deck. The record contains some evidence the restraints may have been audible. In this case, Bells trial counsel stated the chains would be audible. The trial court did not take exception to this statement and instructed the defendant to be mindful about movement of his legs . . . . On appeal, Bell directs our attention to numerous references to the record where the jury entered and exited the courtroom. Bell argues he was required to rise for the jury, which resulted in the rattling of the chains. The record does not reflect the defendant rose and does not reflect the chains rattled, but the record also does not reflect that the defendant did not rise and does not reflect that the chains did not rattle. In Wiseman v. State, the First District Court of Appeals considered, among other factors, the defense counsels statement on the record that the chains were audible. Wiseman v. State, 223 S.W.3d 45 (Tex. App.Houston [1st Dist.] 2006, no pet.).
[11]The State directs our attention to its notice of intent to introduce evidence of extraneous offenses and bad acts. We note that, at punishment, the State introduced evidence of Bells extensive criminal history. Although the vast majority of the offenses were for possession of controlled substances, the State did introduce evidence of misdemeanor convictions for evading arrest, resisting arrest, and terroristic threat. At the time Bell was ordered restrained, the record did not contain evidence of these prior offenses, and the trial court did not reference these prior offenses when deciding to restrain Bell.
[12]On July 1, 1992, a gunman opened fire in the courtroom of the Fort Worth Court of Appeals killing two attorneys and wounding at least two others, including a former law clerk to this Court. See Davis v. State, 890 S.W.2d 489, 491 n.1 (Tex. App.Eastland 1994, no pet.).
[13]The Chapman test is codified in Texas Rule of Appellate Procedure 44.2(a), which provides that constitutional error requires reversal of the judgment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (quoting Tex. R. App. P. 44.2(a)).
[14]The State represented at oral argument that the briefcase used as a demonstrative aid was not the same briefcase used to block the shackles from the jurys view. This representation, though, is not part of the record. Regardless, as noted above, the record does not demonstrate the briefcase used as a demonstrative aid was one of the briefcases shielding the shackles from the jurys view.
[15]Snowden v. State, No. PD-1524-10, 2011 Tex. Crim. App. LEXIS 1321 (Tex. Crim. App. Sept. 28, 2011) (designated for publication).
[16]Defense counsel objected that any movement by Bell would cause the jury to hear a chain rattle. The court admonished Bell to be mindful about movement of his legs . . . .