Clifford James Gratton v. State

Opinion issued July 11, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-10-00615-CR
———————————
CLIFFORD JAMES GRATTON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1231782

MEMORANDUM OPINION

A jury convicted appellant, Clifford Gratton, of the offense of capital

murder. 1 Because the State did not seek the death penalty, the trial court

1
See TEX. PENAL CODE ANN. § 19.03(a)(7)(A) (Vernon Supp. 2012) (providing that
person commits capital murder when he murders more than one person during
same criminal transaction).
automatically assessed punishment at confinement for life. In two issues, appellant

contends that (1) the State failed to present sufficient evidence of identity and

(2) the trial court abused its discretion when it required his alibi witness to testify

in jail clothing without making any findings of fact or conclusions of law

concerning this decision.

We affirm.

Background

In May 2007, Joseph Brown lived near the corner of Fondren and the

Southwest Freeway, by the Arena Towers, in southwest Houston. Around 7:30 or

8:00 p.m. on May 11, 2007, Brown was standing in the doorway of his garage

talking on his cell phone. Across the street, Brown saw a car stopped at the

intersection of Fondren and the driveway from the Arena Towers, waiting to turn

left onto Fondren. Brown then saw a person run from behind a nearby fence to the

car and shoot into the front passenger window of the car. The shooter then ran

back behind the fence. The car rolled across two lanes of Fondren and stopped at

the grassy median. Brown called 9-1-1. He then saw a man, later identified as

John Wells, climb out of the rear driver’s side door, “stagger” across Fondren to a

parking lot, and collapse. Brown walked over to the car and saw a passenger, later

identified as Demonceon Coleman, sitting motionless and the driver, later

identified as Ralph Houston, “gasping for breath.” Coleman and Houston both

2
died of multiple gunshot wounds. Brown testified that “[a]ll [he] saw [of the

shooter] was a person with black clothing, and [he] couldn’t even see skin or the

face.” It appeared to Brown that the shooter was wearing a hood and something to

cover his face.

Kenya Hutchins testified that he was walking into a business on Fondren

with two friends, Tiara Warren and Lashanda Reid, when he heard a loud bang

followed a few seconds later by a series of several bangs. Hutchins ducked into

the store and waited for several seconds before looking outside. Hutchins started

walking toward Fondren. As he did so, he saw a car moving at a crawl toward the

median, where it stopped. Hutchins then saw Wells climb out of the rear driver’s

side door of the car. Wells, holding both of his sides, hobbled across Fondren.

Hutchins and his friends helped Wells over to the front of a nail salon. The only

thing he heard Wells say to them was, “Please don’t let me die.” Hutchins brought

towels out from the nail salon to try to stop Wells from bleeding. Hutchins left

Wells with Reid, who was trying to bandage him, and he went back over to the car

to check on its occupants.

Lashanda Reid testified in a prior proceeding in this case. Because she was

unavailable to testify at the trial that is the subject of this appeal, her prior

testimony was read into the record. Reid stated that she was standing in front of a

business when she heard gunshots. Reid turned in the direction of the gunshots

3
and saw a “flash” and a “figure.” Reid recalled telling the police in her statement

that she saw the shooter and that she could tell the shooter was a man. She told the

police that the man was “dark-skinned,” and she clarified in her testimony that she

meant that the man was African-American. She stated that the shooter was too far

away for her to be able to tell what his actual complexion was. Reid also spoke

with Wells, who appeared in shock, as she was assisting him. Reid testified that

she asked Wells if he knew who shot him, and Wells responded, “No.”

John Wells testified that he met Coleman and Houston when they started

working for a company called Bargain Network, which had its office in the Arena

Towers, in early 2007. Wells, Coleman, and Houston were part of a training group

that met in the afternoon. The three of them became friends, and they would

carpool home after work. Appellant had also recently started working at Bargain

Network and was attending the morning training session. Appellant and Coleman

knew each other from high school, and, occasionally, as appellant was leaving

training for the day and Coleman was beginning, appellant would pass by

Coleman’s work station and call him derogatory names. At work on the day of the

shooting, appellant walked over to Coleman and started talking to him. The

conversation turned into an argument, during which appellant again called

Coleman derogatory names. Appellant then told Coleman, “Meet me outside,”

and, as he was walking away, appellant said, “I got you.”

4
 Around 8:00 p.m., Wells, Coleman, and Houston left work in Houston’s car.

They were sitting at an intersection waiting to turn onto Fondren when Wells heard

a “big bang.” Wells, who was sitting in the back seat of the car, ducked down. He

looked over and saw appellant, who was wearing a black hooded sweatshirt and

something covering his mouth, standing at the front passenger window and

shooting into the car. Wells tried to reach for the gun and open the car door, and as

he did this, he was shot as well. After appellant stopped shooting, he said to

Coleman, “I told you I’d get you.” Wells recognized the voice as appellant’s.

Appellant then ran over to a car that was parked nearby and left the scene.

After appellant left, Wells managed to get out of the car and go to a nearby

parking lot. Wells remembered speaking to a woman in the parking lot, but he did

not remember her asking who shot him. When asked by the prosecutor if he knew,

at that point in time, who had shot him, Wells responded, “Yes.”

Wells spoke to the police twice at the hospital. The first time, he told the

officer that “[a] guy at work” had shot him, because he did not know appellant’s

name. The second time, two days later, Wells viewed three photo-arrays. He did

not identify anyone in the first photo-array, but he did identify appellant in the

second photo-array. When asked who he was identifying, Wells responded, “I was

identifying a person who shot me.” Wells stated that he “knew exactly who shot

[him].” Wells later gave a recorded statement to police, in which he described

5
what had happened earlier in the day at work and what had happened in the car.

He again identified appellant as the shooter.

Lauren Philmon also worked at Bargain Network. She testified that she was

in the same training group as Coleman, Houston, and Wells, which met in the

afternoon. She testified that she had seen appellant at work and that he was part of

the morning training group. She stated that, on the day of the shooting, appellant

and Coleman started arguing while at work. She heard appellant tell Coleman that

he “would be waiting for them after work.” She stated that neither appellant nor

Coleman was belligerent during this altercation, but she could tell from their

attitudes and their tone of voice that they did not like each other.

Houston Police Department (“HPD”) Sergeant J. Roberts was assigned to

investigate the shooting. Sergeant Roberts testified that after he assisted in

processing the scene he saw John Wells at Ben Taub Hospital. Wells was heavily

sedated at the time, so Sergeant Roberts had only a brief conversation with him

before Wells went into surgery. After this conversation, Sergeant Roberts received

a telephone tip from Shelly Houston, Ralph Houston’s sister, and she gave him the

names of three potential suspects, including appellant. Sergeant Roberts obtained a

photograph of appellant, and another homicide investigator prepared three photo-

arrays, each one containing a picture of one of the possible suspects Shelly

Houston had named. Sergeant Roberts then visited Wells in the hospital on May

6
13, 2007, and showed him the photo-arrays. 2 The first and third photo-arrays did

not contain a picture of appellant, and Wells did not identify anyone in these

arrays. The second photo-array contained appellant’s picture, and Wells pointed to

appellant’s picture and “identified him as Cliff who works with them at Bargain

Network and also as the person who shot them.” Sergeant Roberts testified that

Wells “immediately” pointed to appellant’s picture and that, when asked whether

he was sure about his identification, Wells responded, “Yes.” Sergeant Roberts

was not able to speak with Wells about the details of the shooting at that time

because Wells was still too weak from surgery, but Roberts interviewed Wells

approximately two weeks later.

Appellant called Demarco Coleman, who was not related to the complainant

Demonceon Coleman, as an alibi witness. At the time of the trial, Demarco was

incarcerated on an unrelated offense and was dressed in the orange jumpsuit of the

Harris County Jail. Before defense counsel called Demarco, he objected to

requiring Demarco to testify in his jail clothes. Counsel stated:

We believe that the fact that [Demarco is] in an orange jumpsuit and
clearly known to be in custody would be—would create an impression
of untruthfulness and would take away from the witness’ testimony. I
feel like if he could be dressed in street clothing, he would be put on
equal footing with all other witnesses that have appeared so far, Your
Honor.

2
Sergeant Roberts attempted to speak with Wells on May 12, 2007, but Wells was
still unconscious after surgery.
7
The trial court stated, “That ruling is denied.” On direct-examination of Demarco,

defense counsel called attention to his attire, and Demarco testified that he was

currently in custody. He stated that he had previously been convicted of burglary

of a habitation and that he had violated the terms of his probation, leading to his

present incarceration.

Demarco testified that he arrived at appellant’s apartment between 5:30 and

6:00 p.m. on May 11, 2007, and that he remained at the apartment for the entire

evening. About four hours after he arrived, Demarco received text messages

concerning the shooting. Demarco testified that appellant was at the apartment

when he arrived and that appellant did not leave the apartment before he received

the text messages concerning the shooting.

Appellant testified on his own behalf. Appellant acknowledged that he and

Demonceon Coleman were affiliated with rival gangs. He agreed that he had a

conversation with Houston and Coleman on the day of the shooting, but he stated

that he never threatened anyone during the course of that conversation. Appellant

testified that he took a bus home from work and arrived back at his apartment

around 4:30 or 5:00 p.m. He testified that he did not go back to the Arena Towers

area that night; rather, he stayed at his apartment the entire evening. He stated that

he later found out about the shooting via text message. Appellant testified that he

8
has never owned or carried a gun, and he denied shooting Coleman, Houston, and

Wells.

Appellant testified that, the night after the shooting, he and one of his friends

were asleep in his apartment when two men broke into the apartment and accused

appellant of being involved in the shooting. Appellant responded that he was not

involved in the shooting. In response, the men forced appellant and his friend out

of the apartment. The men tried to force appellant and his friend into the trunk of a

car and threatened to kill them. Appellant testified that he then ran away. The

men shot at appellant, but he escaped unharmed. The next day, appellant left

Houston to stay with his father in Chicago.

Ultimately, the jury found appellant guilty of capital murder, and the trial

court automatically assessed his punishment at confinement for life. See TEX.

PENAL CODE ANN. § 12.31(a)(2) (Vernon 2011).

Sufficiency of the Evidence

In his second issue, Appellant contends that the State failed to present

sufficient evidence that he was the one who shot Coleman and Houston. 3

3
Appellant also contends that his conviction was contrary to the overwhelming
weight of the evidence, and he cites law relevant to factual sufficiency challenges.
In Brooks v. State, the Court of Criminal Appeals overruled Clewis v. State and its
progeny and held that evidence is to be reviewed solely under the sufficiency
standard described in Jackson v. Virginia. 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) (“[W]e decide that the Jackson v. Virginia standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient to
9
 A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted). We may not re-evaluate the weight and credibility of the

evidence or substitute our judgment for that of the fact finder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete

deference to the jury’s determinations of credibility. See Lancon v. State, 253

support each element . . . beyond a reasonable doubt.”); Ervin v. State, 331 S.W.3d
49, 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority
holding in Brooks).
10
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (“When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the prosecution and therefore defer to

that determination.”).

B. Capital Murder

To establish that appellant committed capital murder, the State was required

to prove that appellant intentionally and knowingly caused the death of

Demonceon Coleman and Ralph Houston by shooting them with a deadly weapon,

namely, a firearm, during the same criminal transaction. See TEX. PENAL CODE

ANN. §§ 19.02(b)(1) (Vernon 2011), 19.03(a)(7)(A) (Vernon Supp. 2012). The

State must prove, beyond a reasonable doubt, that the accused is the person who

committed the charged crime. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim.

App. 1984); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet.

ref’d). Identity may be proved by direct or circumstantial evidence, and it may be

proved by inferences. Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d); Roberson, 16 S.W.3d at 167. Direct and

circumstantial evidence are equally probative, and proof by circumstantial

evidence is not subject to a more rigorous standard than proof by direct evidence.

11
Roberson, 16 S.W.3d at 167 (citing McGee v. State, 774 S.W.2d 229, 238 (Tex.

Crim. App. 1989)); see also Clayton, 235 S.W.3d at 778 (“Circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.”).

Positive identification of a defendant by a victim of the crime is sufficient to

establish the defendant’s identity as the perpetrator. See Kesaria v. State, 148

S.W.3d 634, 641 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279

(Tex. Crim. App. 2006); see also Williams v. State, 34 S.W.3d 587, 590 (Tex.

App.—Eastland 2000, pet. ref’d) (holding eyewitnesses’ identification of

defendant sufficient to establish identity even though defendant disputed

eyewitnesses’ identifications); Davis v. State, 831 S.W.2d 839, 842 (Tex. App.—

Dallas 1992, pet. ref’d) (holding victim’s identification of defendant sufficient

even though defendant presented five witnesses who testified he was in another

state at time of offense). The victim’s positive, unequivocal in-court identification

of the defendant as the perpetrator is also sufficient to establish identity. See Jones

v. State, 687 S.W.2d 430, 432 (Tex. App.—Houston [14th Dist.] 1985, no pet.).

The inability of other eyewitnesses to the offense to identify the defendant does not

prove that the defendant did not commit the offense. See Santos v. State, 116

S.W.3d 447, 459 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also

Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005,

12
pet. ref’d) (“[The complainant’s identification] testimony standing alone is

sufficient to support appellant’s conviction.”).

John Wells testified that appellant had had verbal altercations at work with

Demonceon Coleman, in which appellant called Coleman derogatory names. On

the day of the shooting, appellant approached Coleman at work and started arguing

with him, and, at the end of the conversation, appellant said “Meet me outside” and

“I got you” to Coleman. Wells testified that, later that evening, while he, Coleman,

and Houston were waiting in Houston’s car at an intersection, he heard a “big

bang” and ducked down in the back seat of the car. Wells saw appellant standing

at the window and shooting inside the car. Wells testified that, during the

shooting, appellant said, “I told you I’d get you.” Wells recognized appellant’s

voice.

The first time Wells spoke to the police, he did not know appellant’s name,

so he told Sergeant Roberts that “[a] guy at work” shot him. The next time Wells

spoke to Sergeant Roberts, he looked at three photo-arrays. He testified that a

picture of the “person who shot [him]” was not contained in the first photo-array,

but it was contained in the second photo-array. When asked how much doubt he

had when he pointed out appellant’s picture in the photo-array, Wells responded, “I

knew exactly who shot me.” In a later interview, after he had been discharged

from the hospital, Wells provided details of the incident at work and the shooting,

13
and he again identified appellant as the shooter. Wells also identified appellant in

court as the shooter.

Sergeant Roberts testified that the second photo-array that he showed to

Wells contained a picture of appellant, and Wells pointed to appellant’s picture,

identified him as “Cliff” from work, and stated that he was the person who shot

him. Wells looked at all of the pictures in the photo-array and then immediately

pointed to appellant’s picture. When asked if he was sure about his identification,

Wells responded “Yes.” This identification occurred on May 13, 2007, two days

after the shooting, because this was the first time that Sergeant Roberts stopped by

when Wells was awake and coherent enough after surgery to view the photo-

arrays. 4 Wells’ identification of appellant as the shooter, both from a photo-array

and in court, is sufficient to establish appellant’s identity as the perpetrator of the

charged offense. See Kesaria, 148 S.W.3d at 641; Jones, 687 S.W.2d at 432.

As further evidence of identity, the State presented Lauren Philmon’s

testimony that appellant and Coleman had a confrontation at work the day of the

shooting. She heard appellant tell Coleman that he “would be waiting for them

after work.” Philmon testified that appellant and Coleman were not belligerent

during this conversation, but she could tell from their attitudes and their tone of

4
Contrary to appellant’s assertion, there is no indication that Wells’ delayed
identification of appellant was at all connected to appellant’s attempted
kidnapping by associates of Coleman or Houston on May 12, 2007.
14
voice that they did not like each other. Appellant, testifying on his own behalf,

acknowledged that he and Coleman were affiliated with rival gangs.

In contending that the evidence was not sufficient to establish identity,

appellant points to Lashanda Reid’s testimony from a prior proceeding that, as

Wells was lying in front of the nail salon, she asked him who had shot him and he

stated that he didn’t know. Wells testified that he did not remember Reid asking

him this question, and he agreed with the prosecutor that “at that point” in time, he

knew who had shot him. Appellant also pointed to the testimony of triage nurse

Theresa Thomas, who testified that when Wells arrived at Ben Taub she asked him

what had happened and he said that the gunshots came from another vehicle.

Wells did not recall telling a nurse at Ben Taub that the gunshots had come from

another vehicle, and he affirmatively testified that that was an inaccurate

description of what had happened at the scene.

Appellant also points out that, in her statement to police, Reid stated that the

shooter was dark-skinned, “a description that does not match the Appellant.”

However, when Reid was told of this statement during her previous testimony, she

clarified that by “dark-skinned” she meant African-American and that she was “too

far away” to determine the shooter’s actual complexion. It is the province of the

jury to believe or disbelieve all or any part of a witness’s testimony, and we

15
resolve any conflicts in the evidence in favor of the verdict. See Curry, 30 S.W.3d

at 406; Sharp, 707 S.W.2d at 614.

When the evidence is viewed in the light most favorable to the verdict, we

conclude that a rational fact finder could have found beyond a reasonable doubt

that appellant committed the charged offense. We hold that the State presented

sufficient evidence to establish appellant’s identity as the shooter of Coleman and

Houston.

We overrule appellant’s second issue.

Witness Testifying in Jail Clothes

In his first issue, appellant contends that the trial court abused its discretion

when it required his alibi witness to testify in jail clothes and failed to make

findings of fact and conclusions of law on the record concerning this decision.

Requiring a defendant to attend trial in jail clothing infringes upon his

fundamental right to the presumption of innocence. Estelle v. Williams, 425 U.S.

501, 512, 96 S. Ct. 1691, 1697 (1976); Gibson v. State, 233 S.W.3d 447, 453 (Tex.

App.—Waco 2007, no pet.). This constitutional consideration does not apply,

however, to witnesses testifying at a hearing other than their own. See Gibson, 233

S.W.3d at 453; see also Gordon v. State, 260 S.W.3d 205, 210 (Tex. App.—

Texarkana 2008, pet. ref’d) (holding same). The Court of Criminal Appeals has

held that “it is within [the trial court’s] discretion to require that witnesses be

16
dressed in [jail] uniforms and be shackled, if the circumstances so warrant.”

Thompson v. State, 514 S.W.2d 275, 278 (Tex. Crim. App. 1974); Gordon, 260

S.W.3d at 210; Gibson, 233 S.W.3d at 453. On appeal, we must determine

whether the trial court abused its discretion by requiring the witness to appear

before the jury in jail clothes. Thompson, 514 S.W.2d at 278; Gordon, 260 S.W.3d

at 210; Gibson, 233 S.W.3d at 453. If we conclude that the trial court abused its

discretion, we must conduct a harm analysis pursuant to Texas Rule of Appellate

Procedure 44.2(a) and determine whether we believe, beyond a reasonable doubt,

that the error “did not contribute to the conviction or punishment.” TEX. R. APP. P.

44.2(a); Gordon, 260 S.W.3d at 210–11.

For an appellate court to review the trial court’s action on appeal, “the

record should contain the factual matters on which the trial court’s discretion was

based. It must appear in the record that in exercise of its discretion the trial court

had a fair knowledge and understanding of all such factual matters.” Thompson,

514 S.W.2d at 278. The appellate record should contain the trial court’s reasons

for requiring the witness to testify in jail clothing, and the court should instruct the

jury not to consider this fact in rendering its verdict. See Gordon, 260 S.W.3d at

211; see also Thompson, 514 S.W.2d at 278 (“The trial judge should give his

reasons where objections are made to a witness testifying for a defendant in jail

17
clothing or in handcuffs and instruct the jury to not consider the restraint in

assessing the proof and determining guilt.”).

Here, outside the presence of the jury, defense counsel informed the trial

court that he intended to call Demarco Coleman, who was in custody in the Harris

County Jail and was dressed in an orange jumpsuit. Defense counsel objected to

requiring Demarco to testify while in jail clothing. He stated:

We believe that the fact that [Demarco is] in an orange jumpsuit and
clearly known to be in custody would be—would create an impression
of untruthfulness and would take away from the witness’ testimony. I
feel like if he could be dressed in street clothing, he would be put on
equal footing with all other witnesses that have appeared so far, Your
Honor.

The trial court responded, “That ruling is denied.” The court did not make findings

of fact and conclusions of law concerning this decision, and it did not explain its

rationale in overruling defense counsel’s objection. The trial court also did not

instruct the jury, either at the time that Demarco testified or in the jury charge, that

it should not consider the fact that he appeared in jail clothing when rendering its

verdict. When Demarco testified, defense counsel called attention to the fact that

Demarco was wearing an orange jumpsuit, and he asked Demarco whether he was

in custody. 5 Demarco testified that he had previously been convicted of burglary

5
There is no indication in the record that Demarco was also shackled when he
testified.
18
of a habitation and that he was currently incarcerated because he had violated the

terms of his probation.

We conclude that the trial court erred when it required Demarco to testify in

jail clothing without stating its rationale for this decision on the record and without

instructing the jury not to consider this fact when reaching its verdict. See Gordon,

260 S.W.3d at 211 (“We conclude such a rationale [requiring a witness to testify

shackled and in jail clothes because it was ‘sheriff’s department’s policy’], absent

additional considerations expressly supported by the appellate record, is

insufficient to support a trial court’s decision to require an inmate to wear jail

clothing while testifying on behalf of the accused.”); Groh v. State, 725 S.W.2d

282, 285 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) (holding that trial court

erred “in allowing the witness to first appear before the jury in jail clothing,

without apparent justification for doing so”).

We now must determine whether we believe, beyond a reasonable doubt,

that the trial court’s error “did not contribute to the conviction or punishment.”

TEX. R. APP. P. 44.2(a); Gordon, 260 S.W.3d at 210–11; Groh, 725 S.W.2d at 284.

On direct examination, Demarco admitted that he had been previously convicted of

the felony offense of burglary of a habitation and that he was incarcerated at the

time of appellant’s trial because he had violated the terms of his probation. This

testimony would have been “a proper matter of impeachment by the State on cross-

19
examination, regardless of the witness’ attire.” Gordon, 260 S.W.3d at 211; see

also TEX. R. EVID. 609 (permitting impeachment of witness with evidence of prior

felony conviction); Groh, 725 S.W.2d at 285 (finding error harmless because

witness testified concerning circumstances of his arrest). In Gordon, the

Texarkana Court of Appeals reasoned that it was “inevitable” that the jury would

learn that the witness was a convicted felon and had been brought from prison to

testify on the defendant’s behalf. 260 S.W.3d at 211. The court noted that it was

“quite doubtful that [the witness’] appearance in jail clothing would have had any

greater impact on the jury’s credibility determination than simply hearing [the

witness] himself admit to being a convicted drug dealer.” Id.

Similarly, we conclude beyond a reasonable doubt that, because Demarco

admitted to both a prior felony conviction and his subsequent violation of the terms

of his probation, leading to his incarceration at the time of trial, the trial court’s

decision to require Demarco to testify in jail clothing did not contribute to

appellant’s conviction. See TEX. R. APP. P. 44.2(a); Gordon, 260 S.W.3d at 210–

12; see also Groh, 725 S.W.2d at 284 (noting that “[n]o Texas court has found

reversible error where a witness for the defense was presented to the jury in jail

clothes”).

We overrule appellant’s first issue.

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 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, dissenting in an opinion to follow.

Do Not Publish. TEX. R. APP. P. 47.2(b).

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