I respectfully dissent. The majority finds no error in appellant being tried in jail clothes over his objection. They first reason that appellant had filed a motion for a speedy trial. The majority acknowledges that the motion for speedy trial was filed after the trial court began to hear motions immediately before jury selection. Consequently, the motion for speedy trial was of no practical effect since appellant was going to trial anyway. They next reason that appellant's counsel knew of the trial date. Thus, the majority implies that appointed counsel must have a duty to supply clothing to the client. Third, they discuss the court's suasponte voir dire of the jury on the issue of jail clothing. Fourth, they say appellant could have requested a continuance but did not. This requires appellant to unnecessarily choose between two valuable rights. He should not be forced to do so. Last, they infer that furnishing civilian clothing the next day is somehow curative.
Prior to Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh'g den'd, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976) our Court of Criminal Appeals in Ephraim v. State, 471 S.W.2d 798 (Tex.Crim.App. 1971) applied Hernandez v. Beto,443 F.2d 634 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971) wherein the Fifth Circuit held that trying a defendant in prison clothing infringed a fundamental right — the presumption of innocence. This was followed by Ex Parte Clark, 545 S.W.2d 175, 177 (Tex.Crim.App. 1977); Thompson v. State, 514 S.W.2d 275 (Tex.Crim.App. 1974) and Ex Parte Slaton, 484 S.W.2d 102 (Tex.Crim.App. 1972).
The majority cites Kimble v. State, 537 S.W.2d 254 (Tex.Crim.App. 1976). In Kimble, the court recognized the right of an accused not to be tried in jail clothes because of the possible infringement of the accused's presumption of innocence, but refused to extend the rule of Estelle v.Williams to cover instances when an accomplice is identified before the jury in jail clothing. The majority also relies upon Slaton, 484 S.W.2d at 102 and Marquezv. State, 725 S.W.2d 217 (Tex.Crim.App.), cert.denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987) for the proposition that it is "well within the discretion of the trial judge to permit" jail clothing. Slaton did hold the trial judge did not abuse his discretion *Page 588 in having handcuffs on the accused since he had attempted suicide. However, the court did hold that trying Slaton in jail clothing was error despite Slaton calling several jail inmates who testified about his bizarre acts. Marquez is a more recent case, but not on point. It involves the shackling of a defendant in a capital murder case during the punishment phase. Furthermore, the trial judge made extensive and specific findings justifying his actions. In the instant case, the only justifications were that the jail did not furnish civilian clothing, what clothing the court had available would not fit and neither appellant's counsel nor his family had furnished any civilian clothing.
While the majority finds "there were sufficient reasons to support and uphold the trial court's decision", I do not. In my opinion, the reasons given by the trial court only point out a bureaucratic problem; who is to furnish an indigent, jailed accused with trial clothing. Other than defense counsel having a week's notice, there is nothing in the record to indicate appellant occasioned his clothing dilemma. Certainly it was not appellant's fault that the jail did not furnish trial clothing. Nor can appellant be faulted for not being able to wear whatever clothing was made available by the court. (Apparently the court had furnished other defendants with clothing, if some clothing was available.) Furthermore, there is nothing in the record to indicate appellant was trying to delay the trial, had refused the offer of clothing or was doing anything concerning his trial attire other than wanting not to be tried in jail clothing.
As previously noted, the majority would apparently solve the clothing dilemma by placing the burden upon the accused or his counsel. The court had attempted to accept the burden, but the clothing did not fit. I believe the burden is best placed upon the correctional facility or the prosecutor. The most logical one to furnish trial clothing for inmates is the correctional facility. They have the immediate knowledge concerning which inmates need trial clothes. They have the ability to care for and store trial clothes since they must do the same for jail clothing. However, if the correctional officer refuses to do so, then the task is left to the prosecution. It rightly becomes their task in part because of TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp. 1991) which states that the primary duty of all prosecuting attorneys is not to convict, but to see that justice is done. Since 1971 there has been a body of law indicating justice requires that an accused not be tried in jail clothing. If, in 1990, there is no procedure in place to insure that, then the task falls to the prosecutor. In any event, appellant was in fact tried in jail clothing over his objection. The majority finds no error and affirms. Therefore, I respectfully dissent.