Affirmed and Majority and Dissenting Opinions filed April 24, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00144-CR
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RAUL ENRIQUE YGLESIAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1023639
D I S S E N T I N G O P I N I O N
The majority concludes that although Judge Harmon abused his discretion, appellant suffered no harm. Because I believe Judge Harmon=s shackling appellant caused harm, I respectfully dissent.
I begin with a brief history of Judge Harmon’s routine policy of shackling defendants. Judge Harmon apparently learned through the news media that an inmate in San Francisco stabbed his counsel with a sharpened toothbrush, and in response, announced a new security policy. See Davis v. State, 195 S.W.3d 311, 314 -15 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Judge Harmon explained:
The Court is of the opinion this is going to be a general change in courtroom security, where people who are accused of felony offenses . . . facing a minimum of fifteen years in prison to life . . . are to be secured during trial . . . this is a general plan by the court to increase the security in the courtroom while jurors are present.
Id.
This type of routine shackling is specifically prohibited both by the United States Supreme Court and the Court of Criminal Appeals. See Deck v. Missouri, 544 U.S. 622, 626-27 (2005); Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991) (stating that the fact a person is charged with a serious felony cannot override that person=s constitutional right not to be shackled). As noted by the majority, appellant had not threatened harm or escape and was medically unable to commit violence due to his diabetic condition. Still, the trial court judge ordered that appellant be shackled during trial. The majority finds no harm because the trial court judge told defense counsel that the jury could not see the shackles.[1] Both the United States Supreme Court and Court of Criminal Appeals have recognized that the accused may suffer harm even when the jury is unaware of shackles. Factors we consider in determining harm include: (1) its probable collateral implications; (2) the source and nature of the error; and (3) whether declaring it harmless would encourage its repetition with impunity. Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990).[2]
This type of needless restraint has significant collateral implications. Restraining the accused offends the dignity and decorum of judicial proceedings. See Deck, 544 U.S. at 631 (stating that routine shackling undermines the courtroom=s formal dignity and respectful treatment to defendants); Brown v. State, 877 S.W.2d 869, 871 (Tex. App.CSan Antonio 1994, no pet.) (stating that physical restraints insult the court and its proceedings). Moreover, restraints are distracting and embarrassing for the accused and potentially impair his ability to participate in his own defense. Deck, 544 U.S. at 631 (citing People v. Harrington, 42 Cal. 165, 168 (1871) (noting that shackles impose physical burdens, pains, and restraints that tend to confuse and embarrass the accused and materially abridge and prejudicially affect his constitutional rights)); Brown, 877 S.W.2d at 871 (stating that less overt, but just as harmful, is the interference that a physical restraint causes with the accused=s thought processes, the use of his mental faculties, and his ability to communicate with counsel during trial).
The nature and source of this error is the trial court, which is of great significance in our harm analysis. Davis, 195 S.W.3d at 319; Ex parte Werne, 118 S.W.3d 833, 837 (Tex. App.CTexarkana 2003, no pet.) (stating that it is of substantial importance when the source of the error is the court itself). Judge Harmon, in this case and at least five other cases, shackled defendants in the face of well-established constitutional law. See Grayson v. State, 192 S.W.3d 790, 792 (Tex. App.CHouston [1st Dist.] 2006, no pet); Davis, 195 S.W.3d at 318-19; Boone v. State, 230 S.W.3d 907, 911 (Tex. App.CHouston [14th Dist.] 2007, no pet); Ramirez v. State, No. 14-05-00435-CR, 2006 WL 2345952, at *3 (Tex. App.CHouston [14th Dist.] August 15, 2006, no pet.) (mem. op., not designated for publication); Wiseman v. State, 223 S.W.3d 45, 50-51 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d). He continued a practice and policy of needlessly restraining defendants contrary to the law=s repugnance of such restraints. I fear that the majority=s finding of harmless error will encourage the practice of needlessly restraining a defendant so long as a judge carefully protects the record. See Garcia v. State, 919 S.W.2d 370, 381 (Tex. Crim. App. 2004) (finding error harmful based in part on fear of encouraging repetition); Davis, 195 S.W.3d at 315; Kelly v. State, 903 S.W.2d 809, 812 (Tex. App.CDallas 1995, pet. ref=d) (finding harm based solely on need to prevent repetition of error that was committed at least two other times in past year). Accordingly, I would find error in this case, and reverse and remand for a new trial.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Majority and Dissenting Opinions filed April 24, 2008.
Panel consists of Chief Justice Hedges, Justice Frost, and Senior Chief Justice Murphy.* (Frost, J. Majority).
Publish C Tex. R. App. P. 47.2(b).
*
[1] Though in certain circumstances Texas courts have found that no harm results from restraining the accused when the restraints were not visible, this case goes beyond an affirmative showing of visible shackles. Contrary to the majority=s analysis, our Court has held that a trial court=s error in ordering a defendant be shackled is not exclusive to cases involving visible shackles or the defendant=s inability to communicate with counsel. See Davis, 195 S.W.3d at 318-19. A defendant=s right not to be shackled also encompasses: (1) the courtroom=s formal dignity; (2) the respectful treatment of defendants; (3) embarrassment and distraction to the defendant; (4) the physical burden and pain of restraints; and (5) interference with a defendant=s thought process. Id. at 318 (citing Deck, 544 U.S. at 626-27; Brown v. State, 877 S.W.2d 869, 871 (Tex. App.CSan Antonio 1994, no pet.); People v. Harrington, 42 Cal. 165, 168 (1871); United States v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002)).
[2] The majority concludes that these factors are irrelevant in our harm analysis because the instant case does not entail visible restraints or impaired communication. Our Court held in Davis that these factors are considered in any non-structural constitutional error analysis, such as the appeal before us. Davis, 195 S.W.3d at 317.
* Senior Chief Justice Paul C. Murphy sitting by assignment.