TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-07-00483-CR
Kenric Leal Marshall, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-07-202057, HONORABLE FRED A. MOORE, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Kenric Leal Marshall of unauthorized use of a motor
vehicle, enhanced to a third-degree felony by three prior convictions, and the trial court assessed
punishment at five years’ imprisonment. See Tex. Penal Code Ann. §§ 12.42(a)(1) (West Supp.
2009), 31.07 (West 2003). On appeal, Marshall raises five complaints: (1) the trial court erred in
not giving the jury an instruction on necessity; (2) the State misstated the law during voir dire, which
resulted in an impermissible shifting of the burden from the State to Marshall; (3) the trial court
should have granted Marshall’s Batson challenge; (4) Marshall received ineffective assistance of
counsel at trial; and (5) Marshall’s rights were violated when he was required to appear before the
jury in shackles. We affirm the trial court’s judgment of conviction.
Factual Summary
Between 9:00 and 10:00 p.m. on April 16, 2007, siblings Eneda and Manuel Espinoza
were at their apartment in north Austin. Manuel was outside the apartment when he saw someone
running toward him. Concerned, Manuel started to go inside, but the person, identified at trial as
Marshall, pushed by him and ran into the apartment. The siblings testified that Marshall told them
that he had been beaten and chased and asked them to let him stay for a few minutes. Eneda said
Marshall seemed very upset and frightened. The Espinozas said several times that they should call
the police to report the attack, but Marshall asked them not to, explaining that “he had had problems
with the police and he didn’t want to go to jail.” Marshall did not ask for a ride, to use the phone,
or to have the Espinozas call anyone on his behalf and asked only if he could use the bathroom.
After about ten minutes, Marshall asked the siblings to see if his attackers were still there. The
Espinozas went outside but did not see anyone, so Marshall left the apartment. Manuel testified that
he watched Marshall leave and that he crossed the street, walking normally, and disappeared
through some trees.
About ten minutes after Marshall left, Manuel went out to the parking lot because he
had go to the store for an errand. He heard his sister’s Jeep’s alarm going off and saw two people
inside the vehicle. The Jeep drove away, so Manuel got into his truck and started to follow, calling
the police as he drove. He discontinued his pursuit when instructed by the police that it might be
dangerous. Manuel testified that no one was chasing the people who took his sister’s vehicle. Eneda
said she did not realize Marshall had taken the car until the next day, when she realized her keys
were missing from her apartment. Officer Juan Mata testified that he spotted the stolen vehicle about
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three miles from the Espinozas’ apartment complex at about 3:45 a.m. on April 17. Marshall was
driving and had a female passenger with him; Mata arrested Marshall and let the passenger go.
Eneda said her vehicle was not damaged and nothing was missing from inside.
Marshall testified that on the evening of April 16, he accidentally threw away his bus
day-pass and had used up all of his money at a restaurant. When he tried to call friends for a ride,
he only reached one person, and that friend was unable to come get him. Marshall then waited at
a bus stop, trying to solicit bus fare to get home. As he waited, two young men, about fourteen or
fifteen years’ old, turned their attention to Marshall. Marshall testified that he was worried because
they were talking “how young black guys talk, N this, N that, what’s up,” and because they were
wearing blue and black clothing, which Marshall said identified them as members of the Crips gang.
Marshall told the young men that he did not want any trouble, but they pulled out a cell phone to
summon two friends, one of whom “just straight hit” Marshall in the mouth. Marshall tried to fight
them off, but then heard the phone “chirp” again and saw two more men approach. Marshall turned
and ran, chased by the six men, who yelled that they were going to “F you up.” Marshall broke
through a fence and picked up a board, but when two of the pursuers did the same, Marshall dropped
the board and ran into a nearby apartment complex. He saw Manuel Espinoza and started to run
toward him. Marshall said he ran past Espinoza into the apartment because he had recently had
stitches and was afraid of being beaten up. Marshall said he asked the Espinozas not to call the
police because of bad past experiences.
Marshall testified that he took Eneda’s keys on an impulse, saying that while the
siblings were outside looking for Marshall’s attacker, he noticed the keys and picked them up to use
3
as a weapon if necessary. He left the apartment and figured out which vehicle went with the keys
by beeping the alarm; he testified, “I just checked to see which one it was just in case I needed it.
I didn’t intend to actually take it.” Marshall saw two of his attackers on the other side of the street,
and when they saw him, they started “coming at me, not chasing me, coming at me,” so he got into
the Jeep and drove off. Marshall testified that after taking the car, he drove for about twenty minutes
and then parked near a friend’s house for about two hours, thinking about what to do. He decided
to go home to ask his mother’s advice, but he was stopped by Officer Mata before he got there.
Marshall said he picked up his passenger later, shortly before Mata arrested Marshall.
He admitted that he told Mata a friend had loaned him the car. Marshall said he was not planning
to sell or steal anything from the car but that “all I could think about was getting to safety, sir.”
Marshall said Manuel Espinoza “wasn’t being honest” in his testimony that he watched Marshall
cross the street and walk away and denied that there was anyone with him when he took the Jeep.
Discussion
In his first issue, Marshall asserts that the trial court erred in refusing to give a jury
instruction on the defense of necessity. He contends that, when viewed in a light most favorable to
his defense, the evidence sufficiently raised each element of necessity.
Generally, a criminal defendant is entitled to a jury instruction on any claimed defense
if the evidence is sufficient to raise each element of the defense. Granger v. State, 3 S.W.3d 36, 38
(Tex. Crim. App. 1999); Stefanoff v. State, 78 S.W.3d 496, 499 (Tex. App.—Austin 2002,
pet. ref’d). If the evidence is such that a rational juror could accept it as sufficient to prove an
element of the defense, it is considered to “raise” that element. Stefanoff, 78 S.W.3d at 499. The
4
credibility, source, or strength of the evidence is not material, and the defendant’s testimony alone
is sufficient to raise a defensive issue. Id. If the evidence does not raise every element of a defense,
the trial court may refuse an instruction properly and timely requested by the defendant. Id. at 500.
In our consideration of whether a trial court erred in denying a requested instruction, we view the
evidence supportive of the defensive issue in the light most favorable to the defense. Id.
The defense of necessity excuses otherwise illegal conduct if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid
imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to
ordinary standards of reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not
otherwise plainly appear.
Tex. Penal Code Ann. § 9.22 (West 2003). Thus, to be entitled to an instruction on the defense of
necessity, a defendant must first bring forth evidence that he reasonably believed a specific harm was
imminent. Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d).
“‘Harm’ means anything reasonably regarded as loss, disadvantage, or injury,” “‘[i]mminent’ means
something that is immediate, something that is going to happen now,” and “imminent harm
contemplates a reaction to a circumstance that must be the result of a ‘split-second decision [made]
without time to consider the law.’” Stefanoff, 78 S.W.3d at 500-01 (quoting Tex. Penal Code Ann.
§ 1.07(a)(25) (West Supp. 2009); Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.—Houston
[14th Dist.] 1994, pet. ref’d)); see Pennington, 54 S.W.3d at 857 (imminent means “impending, not
5
pending; something that is on the point of happening, not about to happen,” “[h]arm is imminent
when there is an emergency situation and it is ‘immediately necessary’ to avoid that harm,” and
evidence must show that “a split-second decision [was] required without time to consider the law”).
If evidence of a specific, imminent harm is presented, the defendant must next present
evidence that he reasonably believed his criminal conduct “was immediately necessary to avoid the
imminent harm.” Pennington, 54 S.W.3d at 857. “‘Reasonable belief’ means a belief that would
be held by an ordinary and prudent man in the same circumstances as the actor.” Id. (citing
Tex. Penal Code Ann. § 1.07(a)(42)). If there is evidence raising every element of the defense,
regardless of the source or strength of the evidence, the question of necessity should be submitted
to the jury, and the State must disprove the defense beyond a reasonable doubt. Tex. Penal Code
Ann. § 2.03(d) (West 2003); see Stefanoff, 78 S.W.3d at 500.
When the facts are viewed as a whole, at the time Marshall took Espinoza’s car keys,
he was safe inside the Espinozas’ apartment and in no immediate danger. He had numerous options
open to him, including calling the police, calling a friend or family member for a ride, asking the
Espinozas to drive him somewhere, or asking the Espinozas to give him bus fare to get home. He
did none of those things and instead took the keys while the Espinozas, on Marshall’s request, went
outside to check for danger, and then went looking for her vehicle. At the time he took the vehicle,
Marshall’s testimony was that he saw two gang members “coming at” him but that they were across
the street and were not chasing him. Thus, when Marshall took Eneda’s keys, got into her vehicle,
and drove away, there was no evidence that he was in danger of imminent harm and that he could
not simply have returned to the Espinozas’ apartment to ask them for further help. In other words,
6
there was no evidence to show that Marshall was required by the circumstances to make a split-
second decision to take the car without taking the time to consider the law. See Stefanoff, 78 S.W.3d
at 500-01 (quoting Smith, 874 S.W.2d at 272-73).
We further note that Marshall was indicted for unauthorized use of a motor vehicle
on or about April 17, the day he was arrested and the day after he initially took the car. Marshall
testified that his confrontation with the gang members occurred between 9:00 and 10:00 p.m. on
April 16, and he was arrested about six hours later, at 3:45 a.m. on April 17. By that point, any
danger was long passed, yet Marshall was still using Eneda Espinoza’s Jeep Cherokee. There was
no evidence to support a jury charge on necessity for April 17, as charged in the indictment.
Under these facts, the trial court did not err in refusing to include an instruction on
necessity in the jury charge. We overrule Marshall’s first issue on appeal.
In his third issue, Marshall, who is African-American, complains that the trial court
erred in overruling Marshall’s Batson1 challenge to the State’s striking of an African-American
venire member. At trial, Marshall objected to the State’s striking of panelist number 18, noting that
of two black males within the strike zone, the State had struck one of them. The State responded that
the panelist was struck because “we have in our criminal history of him that he was arrested for
burglary” and “also he was wearing an earring in the courtroom.” The State explained that its
records showed that a person with the same name and date of birth was arrested for attempted
burglary in 1980. The trial court asked if Marshall had any questions, and counsel said he had no
questions but argued that “the State certainly had an opportunity to bring that juror up before the
1
See Batson v. Kentucky, 476 U.S. 79 (1986).
7
Court” but “did not avail itself of that opportunity to talk to him, which leaves the fact that he had
an earring. But we feel that the strike was because he is a black male. The State did not even
question him about whether or not he was the same individual.”
“There is a three-step process for advancing a Batson claim: (1) The objecting party
must make a prima facie case of discrimination, (2) once a prima facie case is made, the striking
party must tender race-neutral reasons for the strike, and (3) if race-neutral reasons are tendered, the
objecting party must prove purposeful discrimination.” Johnson v. State, 68 S.W.3d 644, 649 (Tex.
Crim. App. 2002). “The trial court’s determination is accorded great deference and will not be
overturned on appeal unless it is clearly erroneous.” Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim.
App. 2001); see Johnson, 68 S.W.3d at 649 (“Appellate courts must give great deference to
credibility and demeanor determinations made by the trial court in connection with a Batson
inquiry.”). “‘Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.’” Purkett v. Elem, 514 U.S. 765, 768 (1995) (quoting
Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality op.)).
After Marshall objected that one of two black, male panelists had been struck by the
State, the State provided two reasons: an old arrest record for someone with the same name and
birthday and the fact that the panelist was wearing an earring. Neither of those reasons is inherently
discriminatory. After hearing the State’s explanations, Marshall argued that the State should have
questioned the panelist further to determine whether it was the same person, but it was not the State’s
burden to prove its race-neutral explanation. Instead, it was Marshall’s burden to negate the State’s
proffered explanations, proving purposeful discrimination in the State’s strike. See Johnson,
8
68 S.W.3d at 649 (State gave several race-neutral reasons for strike, including records showing that
person with same name and birthday was arrested for driving while license was suspended, and
defendant complained that State should have been required to inquire further and ask panelist
whether had been arrested; court held that, “[a]s the party making the Batson challenge, appellant
had the burden to show that the explanation given was merely a pretext for discrimination. It is not
enough merely to show that a proffered explanation turns out to be incorrect. . . . Here, appellant has
failed to prove that the prosecutor’s explanation was incorrect, much less that it was a pretext for
discrimination.” (footnotes omitted)). Marshall did not carry his burden of rebutting the State’s race-
neutral reasons for striking panelist number 18. Deferring to the trial court’s determinations of
credibility and demeanor, we hold that the court did not err in overruling Marshall’s Batson
challenge. We overrule Marshall’s third issue.
In his second issue, Marshall argues that the State misstated the law during voir dire,
which resulted in an improper shifting of the burden of proof. However, Marshall’s trial attorney
did not object to the prosecutor’s statements, and, therefore, this argument is waived.2 See Tex. R.
App. P. 33.1(a); Norris v. State, 902 S.W.2d 428, 446 (Tex. Crim. App. 1995). We overrule
Marshall’s second issue.
2
Marshall contends that the error rose to “constitutional dimensions” and should be
evaluated even though counsel did not object at trial. We disagree. Generally, a defendant’s failure
to make a timely objection waives an alleged error. Tex. R. App. P. 33.1(a). Only in the case of
fundamental or structural error is an unobjected-to error preserved for appeal. See Arizona
v. Fulminante, 499 U.S. 279, 309-10 (1991); Rey v. State, 897 S.W.2d 333, 344-45 (Tex. Crim. App.
1995); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Marshall does not explain
how the prosecutor’s fairly minor statements amounted to structural or fundamental error. Marshall
also asserts that if we find this alleged error was waived, we should consider that waiver in our
consideration of his fourth issue, which asserts that he received ineffective assistance of counsel.
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In his fourth issue, Marshall contends that he received ineffective assistance of
counsel at trial. Specifically, he attacks counsel’s failure to object to the State’s voir dire statements
comparing the information a criminal defendant can acquire from the State to the information the
State may acquire from the defense and counsel’s failure to object to the trial court’s refusal to allow
Marshall to testify about his mental health background.3
During voir dire, the prosecutor stated:
The difference is that the defendant can look at my file, and our policy in Travis
County is they can look at everything I have in my file. Does anyone think that I
have the same right to look in his file? . . . That’s right, I don’t. I don’t know what
defense they are going to bring. I don’t have the right to look at his attorney’s file,
but they have the right to look at ours. So it is a little bit different than civil law
where there are rules that people get to look at what the defenses might be, what their
cause of action might be. In criminal, we don’t have that same right to look at their
discovery, we call it, but they can look at everything in our file. And it’s our policy
at the Travis County DA’s Office to let them do that.[4]
Counsel did not object to the prosecutor’s statements and thus waived any error, and Marshall argues
that this shows he received ineffective assistance of counsel. Marshall contends that the prosecutor’s
3
Marshall also asserts ineffective assistance related to counsel’s failure to cite to case law
or statute in arguing for a necessity instruction in the jury charge. However, counsel’s argument
related to the instruction, which we have already addressed, sufficiently preserved error, and we will
not consider Marshall’s argument in reviewing counsel’s effectiveness.
4
Marshall argues that because the prosecutor stated that a criminal defendant can subpoena
witnesses just before his misstatement about what the defendant and State can obtain from each
other, the State “impl[ied] that the Defendant had an unfair advantage over the state.” He argues that
the “improper burden shifting” was compounded when the defense did not call any witnesses other
than Marshall himself, leading the jury to believe the State’s case was stronger than Marshall’s. We
disagree and see nothing in the prosecutor’s true statement about a defendant’s subpoena power that,
whether read in isolation or in context of the entire voir dire or the entire trial, leads to an erroneous
implication or shifting of the burden of proof.
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statements tainted the jury pool because it falsely implied that Marshall had an unfair advantage over
the State and amounted to improper burden shifting. The State admits that “[t]his is not quite what
the law is in this jurisdiction regarding discovery” but argues that the prosecutor was merely
“explaining the ‘policy’ of the Travis County Prosecutor’s Office,” which is an “open file policy.”
Marshall further complains about his attorney’s failure to object to the trial court’s
refusal to allow Marshall to testify about his mental health background. After the State rested,
Marshall testified on his own behalf. During cross-examination, the following exchange occurred:
State: How soon after you stole the car were you actually safe?
Marshall: I guess when I decided to go to that street because—I really don’t want to
bring this up because I don’t want people to try to feel sorry for me, but I’m paranoid
schizophrenic.
State: I object as nonresponsive.
Marshall’s attorney: It is responsive, your Honor. He is answering the question
directed to him.
Court: What is the question, how far were you away when you felt you were safe?
State: Yes.
Court: That implies you need to tell us some distance or measurement of time.
During redirect by defense counsel, the following exchange took place:
Counsel: You have been diagnosed as a paranoid schizophrenic?
Marshall: Yes, sir.
Counsel: How long ago were you diagnosed?
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Marshall: I have been diagnosed since I was 12 years old up until the point last
year—
State: Objection. Irrelevant, your Honor.
Court: It’s sustained.
Counsel: No further questions.
Marshall argues on appeal that his mental health could have been an important defensive issue and
“a basis for a variety of defenses, including insanity or mistake of fact—or could have been used as
an imperfect defense that could have pulled Mr. Marshall’s mens rea down from the required
intentionally or knowingly to recklessly or negligently.” He insists that there could have been no
strategic reason for not seeking the admission of his mental health evidence.
To show ineffective assistance, a defendant must show (1) that counsel’s performance
fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced
the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State,
9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Blevins v. State, 18 S.W.3d 266, 271
(Tex. App.—Austin 2000, no pet.). The defendant has the dual burdens of overcoming a strong
presumption that counsel’s performance fell within the range of reasonable professional assistance
and presenting a record showing that counsel’s performance was not based on sound trial strategy.
Thompson, 9 S.W.3d at 813; Blevins, 18 S.W.3d at 271. If there is no evidentiary hearing on the
issue of counsel’s effectiveness, the defendant’s burden is difficult to meet, and we will rarely find
ineffective assistance.5 Blevins, 18 S.W.3d at 271-72 (quoting Thompson, 9 S.W.3d at 813). We
5
In most direct appeals, the record is undeveloped and does not reflect counsel’s strategies
or motives, and seeking a writ of habeas corpus is the better means of complaining of ineffective
assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
12
evaluate the effectiveness of counsel’s performance in its totality, rather than focusing on isolated
acts or omissions, and from counsel’s perspective at trial, rather than in hindsight. Mayhue v. State,
969 S.W.2d 503, 510 (Tex. App.—Austin 1998, no pet.).
In this case, Marshall’s motion for new trial did not assert ineffective assistance, and
the record is silent as to counsel’s strategies. Viewed in whole, counsel’s representation of Marshall
was more than adequate—he conducted substantial voir dire of the potential jurors, making a Batson
objection to one of the State’s strikes, and actively participated in trial, cross-examining witnesses,
calling Marshall in his own defense, appropriately objecting to questioning by the State, raising a
successful objection related to whether Marshall was read his rights before being questioned, and
presenting a professional closing argument.
With regard to the State’s voir dire statements about a defendant’s access to the
State’s file, the statement was made in passing and, as argued by the State, was not presented as part
of the criminal law of Texas. Instead, it was presented as what the procedure is in Travis County.
Even if it had been presented as an absolute rule in Texas, it is unlikely that the panelists would have
absorbed that information as somehow shifting the burden of proof to Marshall, especially in light
of the State’s voir dire explanation that Marshall should be considered innocent until proven guilty,
trial counsel’s closing statement emphasizing the reasonable-doubt standard, and the court’s charge,
which clearly explains that the State bears the burden of proving its allegations.
As for counsel’s brief attempt to introduce Marshall’s psychological history to the
jury during guilt/innocence, counsel managed to introduce Marshall’s schizophrenia to the jury,
although he was not allowed to explore it in detail. Although counsel could have attempted further
13
argument when the State objected to Marshall’s testimony about his mental health, it is possible that
counsel had already considered whether to argue that Marshall’s schizophrenia rendered him insane
when he took the vehicle or at least incapable of acting knowingly and decided against it.
Without a record to show what counsel knew and considered about Marshall’s mental
health, we cannot hold that his decision not to attempt to introduce more detailed information about
Marshall’s mental condition was such as to bring counsel’s overall performance below a reasonable
standard of effectiveness. See Thompson, 9 S.W.3d at 813; Blevins, 18 S.W.3d at 271; Mayhue,
969 S.W.2d at 510. Similarly, counsel’s decision not to argue about and risk emphasizing the State’s
passing remark about what information a defendant may view from the State’s file in a criminal trial
cannot be considered to have rendered counsel ineffective. We overrule Marshall’s fourth issue.
Finally, in his fifth issue, Marshall argues that his constitutional right to due process
was violated because the trial court allowed him to appear in court and testify “while wearing leg
braces for security purposes.”6 Trial counsel did not raise any complaints related to Marshall’s
restraints, and appellate counsel does not assert that trial counsel’s failure to object amounted to
ineffective assistance. Thus, the complaint is waived. See Tex. R. App. P. 33.1(a). However, even
if the complaint had been preserved, although the trial court did not make findings that would justify
6
On appeal, Marshall argues that he was “wearing a shackle,” but the record does not reflect
what Marshall wore on his leg. When Marshall began to testify, he was asked, “Kenric, when you
walked up, you were hobbling. You are wearing a leg brace?” Marshall answered that he was, and
counsel asked whether he had anything wrong with his legs. Marshall said, “No, sir,” and counsel
asked, “This is just a security thing that you wear and you are in custody at the jail; is that right?”
Marshall said, “Yes, sir, I am.” This testimony does not explain what it was Marshall wore and
whether it was shackles or some other form of restraint. Further, it is not clear whether the restraint
was visible, and the State argues that without proof of that visibility, there was no harm. However,
because the jury was informed that Marshall was wearing a restraint or brace, it is fair to assume the
jury was aware of it on some level.
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the use of visible restraints, see Deck v. Missouri, 544 U.S. 622, 629 (2005), the error was harmless.
See Davis v. State, 195 S.W.3d 311, 316-17 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
(holding that non-structural constitutional error should be analyzed for harm under Tex. R. App. P.
44.2(a)); see also Tex. R. App. P. 44.2(a) (in conducting harm analysis, we should reverse unless we
determine “beyond a reasonable doubt that the error did not contribute to the conviction”).7 Marshall
admitted to having taken Eneda Espinoza’s Jeep without her permission, and there was additional
evidence to support a guilty verdict, including the Espinozas’ testimony about Marshall’s arrival at
their apartment and the corresponding disappearance of the car keys and Mata’s testimony that
Marshall was arrested in the vehicle about six hours later. If error had been preserved, we would still
conclude beyond a reasonable doubt that any sighting by the jury of the restraint or “leg brace” did
not contribute to Marshall’s conviction. See Tex. R. App. P. 44.2(a).
Having overruled Marshall’s issues on appeal, we affirm the judgment of conviction.
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: January 8, 2010
Do Not Publish
7
Although improper restraint of a defendant is constitutional error, generally it is not
structural error. See Davis v. State, 195 S.W.3d 311, 316 (Tex. App.—Houston [14th Dist.] 2006,
no pet.) (citing Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim. App. 2005)) (“only federal
constitutional errors can be structural and then only if the Supreme Court has labeled them so”).
15