Opinion issued May 5, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00320-CR
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Anthony Karl Brown, Appellant
V.
The State of Texas, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1237111
MEMORANDUM OPINION
A jury found appellant Anthony Karl Brown guilty of possession of a controlled substance and, after finding true two enhancement paragraphs, assessed the punishment at twenty-five years’ confinement. See Tex. Health & Safety Code Ann. §§ 481.102(8) and 481.115(d) (West 2010). On appeal, appellant contends that the trial court erred by (1) denying his motion for continuance and authorization of funds to allow him to conduct an independent analysis of the alleged controlled substance and (2) requiring him to wear shackles during his jury trial. We conclude that appellant’s request for a continuance and authorization of funds was untimely and failed to comply with the Code of Criminal Procedure and that appellant was not harmed by the trial court’s error in requiring him to wear shackles during the trial. We therefore affirm.
Background
The police stopped appellant in a red Pontiac after he ran a stop sign and failed to use his turn signal. During the traffic stop, the police smelled a strong odor of phencyclidine, or “PCP,” and marijuana. The police arrested appellant for his two traffic violations and for driving without insurance. They also arrested a passenger in the car because a check revealed that he had outstanding warrants. The police then searched the vehicle at the scene, discovering a travel-sized Scope bottle containing a light brown liquid and a white grocery bag containing marijuana. A Houston Police Department chemist analyzed the substance in the Scope bottle. She determined that the bottle contained 0.04 ounces of marijuana and 31.5 grams of PCP, including adulterants and dilutants. Appellant admitted that the PCP and marijuana was his.
The trial court set appellant’s case for trial on April 9, 2010, then carried it over each day until April 15. On that day, appellant’s counsel orally moved for a continuance of the trial setting. He requested more time and the approval of an expenditure of county funds for the purpose of re-verifying the weight and substance of the liquid in the Scope bottle. The trial court denied the motion and proceeded to trial. Appellant remained shackled in the courtroom. Appellant’s counsel requested that appellant be unshackled during the trial. The trial court observed that, “[a]s long as he’s seated and doesn’t make a show of it, I don’t think [the jury] can see the shackles,” and took the issue under advisement. Later, the trial court ruled that appellant would remain shackled during the trial but instructed the bailiff to “make every effort to see that the jury panel — or the jury does not see that.” The jury found appellant guilty.
Continuance for Independent Testing
Appellant first contends that the trial court erred by failing to grant his day-of-trial request for a continuance and funds to conduct independent testing of the substance alleged by the State to be PCP.
A. Applicable Law
Under Article 39.14, upon notice and a showing of good cause by the defendant, a trial court must order the State to permit inspection of tangible evidence, such as the substance in appellant’s Scope bottle. Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2010). A defendant has the burden of showing good cause for inspection, and the decision is left to the discretion of the trial court. McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App. 1992); Bell v. State, 866 S.W.2d 284, 288 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Generally, an indigent defendant has a right to appointment of an independent chemist to inspect the controlled substance alleged in the indictment if his case is reasonably certain to proceed to trial. McBride, 838 S.W.2d at 252 (citing Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 1092 (1985)). The burden is on appellant to show that the trial court abused its discretion in denying appellant’s request for appointment of a chemist. Mann v. State, 754 S.W.2d 371, 373 (Tex. App.—San Antonio 1988, no pet.) (citing Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App. 1987) (en banc); Myre v. State, 545 S.W.2d 820 (Tex. Crim. App. 1977)).
Under Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, a party seeking a continuance must do so in a sworn, written document that sets forth sufficient cause. See Tex. Code. Crim. Proc. Ann. arts. 29.03 (“A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.”), 29.08 (“All motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance.”) (West 2006). The Court of Criminal Appeals has held that a defendant must comply with these statutory requirements to preserve for appellate review the trial court’s denial of a motion for continuance seeking additional time to perform independent testing of evidence. Anderson v. State, 301 S.W.3d 276, 278–81 (Tex. Crim. App. 2009). In Anderson, the Court of Criminal Appeals held that a criminal defendant’s right to a meaningful opportunity to present a complete defense is subject to forfeiture by the accused, and that Anderson failed to preserve an appellate challenge to the trial court’s denial of his motion for continuance to perform independent DNA testing by failing to comply with Articles 29.03 and 29.08. Id. at 277, 280–281.
B. Analysis
Appellant was charged with possession of a controlled substance on October 15, 2009. He was appointed legal counsel the following day and was indicted on November 5. His case was set for arraignment on November 19, disposition on December 15, and pretrial motions were set for January 27, 2010. Pretrial motions were subsequently carried over to January 29, then February 1. At that time, more than two months before trial, the trial court ordered the State to furnish, among other things, inspection of all contraband seized or obtained by the State in its investigation. Three weeks before trial, the trial court ordered appellant to disclose any expert he intended to present at trial. The State filed a notice that it intended to present testimony from the police department chemist and a fingerprint expert.
Under the trial court’s order, the State was required to make the alleged controlled substance seized from appellant available to him for inspection at least ten days prior to trial. See Tex. Code Crim. Proc. Ann. art. 39.14(a). Appellant does not complain that the substance was unavailable to him, nor does the record reflect a request for funding for an independent expert prior to the day of trial. Although appellant asserts that he made such a request, neither that request nor any trial court ruling are in the record. Accordingly, we may not consider this assertion on review. Tex. R. App. P. 33(a). With respect to the request that is in the appellate record, this request was neither timely nor accompanied by a proper motion for continuance. See Tex. Code. Crim. Proc. Ann. arts. 29.03, 29.08 (requirements for motion for continuance). Even had appellant’s motion for continuance complied with the statutory requirements, appellant has not offered a reason to suggest that the time allotted for testing prior to trial was insufficient. By March 22, the State had notified appellant that it intended to present testimony from its chemist. We hold that the trial court did not abuse its discretion by denying appellant’s day-of-trial motion for a continuance and appointment of a chemist. See Anderson, 301 S.W.3d at 277, 280–81 (affirming denial of oral, unsworn motion for continuance to allow time for independent DNA testing).
Use of Shackles at Trial
Prior to trial, appellant’s counsel objected to having appellant shackled during trial on the ground that it could prejudice the jury against appellant. The trial court nonetheless required that appellant remain shackled throughout his trial.
A. Applicable Law
Shackling of a criminal defendant during trial proceedings threatens the defendants’ presumption of innocence, right to a fair trial, and ability to effectively communicate with counsel. See Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991); Wiseman v. State, 223 S.W.3d 45, 49–50 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013 (2005); Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976)). Thus, a trial court must not use visible shackles during the guilt phase of a trial. Wiseman, 223 S.W.3d at 50 (citing Deck, 544 U.S. at 626, 125 S. Ct. at 2010). Courts have recognized a narrow exception to this rule if a trial court determines that there is a particular need for shackling the defendant, such as a demonstrated propensity to attempt escape or assault others in the courtroom. Id. (citing Deck, 544 U.S. at 627, 632, 125 S. Ct. at 2011–12; Long, 823 S.W.2d at 282. The trial court’s determination is reviewed under an abuse of discretion standard. Long, 823 S.W.2d at 282; Wiseman, 223 S.W.3d at 50.
Improperly shackling a defendant during the guilt phase of his trial is constitutional error. Thus, we review the record for harm under Rule 44.2(a) of the Texas Rules of Appellate Procedure. Wiseman, 223 S.W.3d at 51; see also Tex. R. App. P. 44.2(a). Under this standard, the court of appeals must reverse a conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). We examine “whether there is a reasonable possibility that the error might have contributed to the conviction and, without evidence that the shackles were visible to the jury or that the shackles unduly restricted appellant’s ability to communicate with trial counsel, binding precedent compels the conclusion that the trial court’s error is harmless.” Yglesias v. State, 252 S.W.3d 773, 778 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (citing Canales v. State, 98 S.W.3d 690, 697–98 (Tex. Crim. App. 2003); Grayson v. State, 192 S.W.3d 790, 792–93 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Ramirez v. State, No. 14–05–00435–CR, 2006 WL 2345952, at *3 (Tex. App.—Houston [14th Dist.] Aug. 15, 2006, no pet.) (mem. op., not designated for publication)); see also Cooks v. State, 844 S.W.2d 697, 723 (Tex. Crim. App. 1992).
B. Analysis
The trial court erred in requiring that appellant be shackled during his trial. She failed to make the necessary findings to support her ruling and nothing in the record indicates that appellant exhibited a propensity to commit violence or try to escape during trial. However, we conclude that the record establishes beyond a reasonable doubt that the shackling did not contribute to appellant’s conviction.
Appellant does not expressly assert that any juror was aware of his shackles or point to any evidence in the record that would support such an argument. Instead, appellant argues that the trial court’s statement that she did not “think” the jury would be able to see the shackles is insufficient to establish that the jury did not see the shackles. This statement, in combination with the trial court’s instruction to the bailiff to “make every effort to see that the jury panel — or the jury does not see [the shackles,]” is sufficient, because no contrary indication in the record exists that the jury was aware of them. Absent any basis in the record from which we could reasonably infer that a juror saw or was otherwise aware of the shackles, we cannot find that appellant was harmed in this respect. Compare Canales, 98 S.W.3d at 697–98 (“Nothing in the record indicates that the jury ever saw or heard or was otherwise aware that the appellant was wearing shackles. Assuming, therefore, that the appellant preserved this claim for appeal, he makes no showing of harm or prejudice.”) and Cooks, 844 S.W.2d at 723 (“Absent evidence that the jury actually saw the shackles, we will not conclude that the defendant has been harmed.”) and Grayson, 192 S.W.3d at 792–93 (holding that appellant was not harmed by trial in shackles when there was nothing in the record indicated that the jury saw appellant’s shackles) and Grant v. State, 255 S.W.3d 642, 650 (Tex. App.—Beaumont 2007, no pet.) (holding that appellant was not harmed where appellant did not identify anything in appellate record reflecting that appellant’s shackles were visible) with Wiseman, 223 S.W.3d at 51 (“On its face, the bailiff’s statement indicates that appellant’s shackles were exposed.”).
Appellant further argues that “even if the restraints are not visible to the jury . . . [b]eing shackled may still confuse and embarrass the defendant and interfere with the defendant’s thought process,” citing Davis v. State, 195 S.W.3d 311, 316 (Tex. App.—Houston [14th Dist.] 2006, no pet.). In Davis, the Fourteenth Court of Appeals found harmful error when the trial court required the criminal defendant to be handcuffed during trial, because the record indicated that the handcuffs interfered with the defendant’s ability to communicate with his counsel. Id. at 317 (“The record does show some interference with attorney-client communication.”). The record in that case also showed that, when the judge ordered the defendant handcuffed, he also instructed the bailiff to remove from the defendant’s hand the pen his attorney had given him to write notes. Id.
We agree that shackling a defendant may cause harm to the defendant by interfering with the defendant’s ability to communicate with his counsel, regardless of whether the jury is aware of the shackles. See Wiseman, 223 S.W.3d at 49–50. We cannot find harm, however, when the record is devoid of anything that supports an inference that appellant’s shackles actually interfered with his ability to communicate with his counsel. Cf. Davis, 195 S.W.3d at 317 n.3 (distinguishing other cases on basis that record before the court contained evidence that handcuffs interfered with defendant’s ability to communicate with his counsel).
Absent any basis in the record for inferring that the defendant’s shackles were known to the jury, interfered with his ability to communicate with his counsel, or otherwise interfered with his right to a fair trial, we must conclude, beyond a reasonable doubt, that appellant was not harmed by the trial court’s error in ruling that he remain shackled during the trial. See Yglesias, 252 S.W.3d at 777 (“[A] trial court’s error in ordering a defendant to be shackled is harmless if the shackles are not visible to the jury and if they do not unduly restrict a defendant’s ability to communicate with counsel.”) (citing Canales, 98 S.W.3d at 697–98; Davis, 195 S.W.3d at 317–18)); Ziolkowski v. State, 223 S.W.3d 640, 644–45 (Tex. App.—Texarkana 2007, pet. ref’d) (finding no evidence that the jurors ever saw the shackles or that the shackles interfered with the defendant’s communication with counsel and concluding, beyond a reasonable doubt, that defendant did not suffer harm) (citing Canales, 98 S.W.3d at 697–98; Cooks, 844 S.W.2d at 723; Long, 823 S.W.2d at 283).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justice Bland and Wilson.[1]
Do not publish. Tex. R. App. P. 47.4.
[1] The Honorable Randy Wilson, 156th Civil District Court of Harris County, Texas, sitting by assignment.