Culverhouse v. State

TEAGUE, Judge,

dissenting.

Because this Court errs grievously in denying David Leslie Culverhouse, henceforth appellant, relief, I respectfully dissent.

From my reading of this record, and the record in our P.D.R. cause number 0800-86, which P.D.R. was refused over my vote to grant, which cause is unrelated to this cause, I have concluded that appellant is one defendant who has been terribly mistreated by our criminal justice system. The majority opinion, by denying him relief, aggravates this mistreatment. I find that the basis for the majority opinion, in rejecting appellant’s first contention, is that it relies upon the trial judge’s erroneously taking “judicial notice” of what occurred when appellant was tried in Bowie County, on a change of venue from Rusk County. For reasons I will give, the trial judge clearly erred in taking judicial notice of what occurred in Bowie County. At no time did the trial judge testify under oath in this cause. The record makes it obvious to me that he does not care too much for appellant.

The facts relating to the Bowie County case reflect that appellant wanted to represent himself, but the trial judge refused his request. This record makes it sufficiently clear that this act of the trial judge, in overruling appellant’s request, was totally erroneous under our present law. The act was so devastating and demoralizing to appellant that it caused him to become so frustrated that he picked up a water pitcher and struck his court appointed attorney, as a result of which counsel sustained a broken nose, a broken cheek bone, and lacerations to his body. The record does not reflect whether criminal charges were filed against appellant for the assault on his attorney. ' Notwithstanding what appellant had done to his attorney, the trial judge amazingly forced counsel to remain on the case as standby counsel. It is clear by correspondence on file with this Court that'appellant did not care too much for his attorney and did not want him anywhere near him or the courtroom in which his case was tried.

*863Given the above and what I shall hereinafter state, I find that this Court has the audacity to hold that the trial judge did not abuse his discretion in causing appellant during his trial, in the presence of the jury, to be restrained by handcuffs, leg irons, and a belly chain. I further find that this Court has the audacity to hold that the trial judge did not err in dismissing his court appointed attorney from the case. I again stress that the record is clear that appellant did not want this attorney anywhere near him when his cause was tried before the jury, and the record is also clear that counsel did not want to be or get near appellant. Given the circumstances of what had previously occurred, this attorney should not have been permitted, much less forced, to get within a mile of appellant.

The facts before us reflect that for unknown reasons the appellant shot and killed his girlfriend in a Safeway Store that was located in Henderson, and thereafter, inside of the same store, when making his escape, he shot a store manager trainee. On April 29, 1983, the appellant was tried and convicted in Bowie County, on a change of venue from Rusk County, for killing his girlfriend, for which he received a life sentence. The record in this cause does not reflect whether that conviction was appealed.1

On July 19,1983, the appellant was tried and convicted by a jury in Walker County, on a change of venue from Rusk County, for attempting to murder the store manager trainee, which is this cause. Appellant defended himself, but, over objection, had available for consultation purposes court appointed “standby” counsel. The jury also assessed punishment at twenty years’ confinement in the Department of Corrections, which is the maximum number of years that could be assessed. The trial judge ordered this sentence “stacked” onto the life sentence that the appellant had sustained in Bowie County. In reference to the issue whether the trial judge was warranted in ordering the appellant restrained in the courtroom and in the presence of the jury during the trial of this cause, the record only reflects the following:

On June 20, 1983, the issue whether the appellant should be restrained through the use of handcuffs, leg irons, and a belly chain was raised, not by the prosecution, but by the trial judge himself. The trial judge, without conducting a hearing on the subject, summarily ordered that the appellant “be shackled throughout the course of the trial of this Cause No. 19,568.” The appellant personally requested that the trial judge give his reasons for such order. The trial judge only stated the following into the record: “Well, the reason is that in the trial of Cause No. 567,1 believe, on the docket of this court, it received another number when it was transferred to Bowie County, wherein you were tried in that cause and that court I believe last week in April of this year, and the incident of violence in connection with that trial that you displayed in making an assault upon a court official [his court appointed attorney] during the course of the trial ...” The appellant responded that the assault on his court appointed attorney had taken place only after his request to dismiss his court appointed counsel from the case was denied.

Although the record of the Bowie County trial is not in the record of this cause, thus, we are not privy to the details of the above assault, the record of this cause does, however, reflect or indicate that in the course of the assault, court appointed counsel sustained a broken nose, a broken cheek bone, and lacerations to the body. Notwithstanding the injuries that counsel had sustained, after it was determined that the appellant would represent himself pro se in this cause, counsel was again appointed to represent the appellant, but this time, except for a very short period of time near the close of the proceedings in this cause, he only represented the appellant as “standby” counsel.

*864On July 18, 1988, after announcements of ready were obtained from the parties, the appellant requested that “the handcuffs and this chain wrapped around my waist and these leg irons be taken off of me at this time.” The appellant also stated the following, which statement is neither controverted nor disputed: “Your Honor ... I have not caused any trouble in this court.” The appellant’s request was summarily denied. Before the jury panel was brought into the courtroom, the appellant again told the judge: “Your Honor, I give [you] my word I’m not going to cause any trouble.” His plea fell on deaf ears.

When the appellant personally voir dired the jury panel, he again requested the trial judge to order that “the shackles and handcuffs and leg irons be taken off at this time.” That request was ignored by the trial judge.

The record also reflects that when the appellant personally argued to the jury, in addition to being restrained with handcuffs, leg irons and a belly chain, he was accompanied to the jury box by a deputy sheriff.

Unfortunately, because the record does not contain a photograph of the way the appellant looked to the jury when he was in the courtroom and when he personally argued his case to the jury, I cannot actually say how he must have then looked to the jury.

Does this record support the drastic action of the trial judge in ordering that the appellant, at all times during his trial, be restrained through the use of handcuffs, leg irons and a belt in the form of a belly chain? Because I do not find that this record supported such drastic action on the part of the trial judge, I dissent to the majority opinion’s holding that the trial judge did not err by ordering appellant so shackled and manacled during his trial.

As previously pointed out, no hearing was ever conducted by the trial judge on why it was necessary for him to take the extreme and drastic measure in ordering that the appellant be at all times during his trial restrained through the use of handcuffs, leg irons, and a belly chain. The only support in the record for the trial judge’s order rests solely on the trial judge’s statements that he made that referred to what he had personally observed during the trial that took place in Bowie County.

What the trial judge may have personally observed during the trial that took place in Bowie County is, however, not “Judicial Notice” or “Judicial Knowledge”, as those terms are ordinarily understood by most members of the bench and bar. “Judicial Notice” or “Judicial Knowledge” is either notice or knowledge of that which is so notorious that everybody, including judges, knows it, and hence it need not be proved. Black's Law Dictionary, p. 761 (Fifth Edition, 1979).

Notwithstanding what a majority of this Court stated and held in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), and Bradley v. State, 608 S.W.2d 652 (Tex.Cr.App.1980), that in a revocation of probation proceeding the trial judge could, over objection, take “Judicial Notice” of the testimony of a prior trial conducted before him for the purpose of supporting the allegations of the State’s revocation motion, but because revocation proceedings are by their very nature not trials on the merits of a lawsuit, this causes those cases to be distinguishable from this cause. The usual rules governing “Judicial Notice” or “Judicial Knowledge” should be applicable to this cause.

In 1 Texas Practice 195-196, Ray, Law of Evidence (Third Edition), Section 152, the following is pointed out: “[I]t is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge. The judge may personally know a fact of which he cannot take judicial notice.” Also see Barrientez v. State, supra (Onion, P.J., dissenting opinion); Bradley v. State, supra (Onion, P.J., and Clinton, J., dissenting opinions); and Wilson v. State, 677 S.W.2d 518 (Tex.Cr.App.1984).

Thus, there is not any legal evidence or testimony in this record that might support *865the trial judge’s order restraining the appellant through the use of handcuffs, leg irons, and a belly chain.

It is now axiomatic that “[N]o person should be tried while shackled ... except as a last resort.” Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

This is because one of the most precious rights afforded an accused person is the right to be tried before an impartial jury with the presumption of innocence fully intact and free of prejudice. Concomitant with this right is the right of the accused to be “brought before the court with the appearance, dignity and self-respect of a free and innocent man.” From the above right flows the principle of law that no accused person should ever be subjected to physical restraints of any kind during the trial and in the presence of the jury — unless there is a showing of “exceptional circumstances” or a “manifest need” for such restraints. Gammage v. State, 630 S.W.2d 309, 313 (Tex.App.—San Antonio 1982) (State’s P.D. R. refused.)

In Gammage v. State, supra, Justice Cantu of the San Antonio Court of Appeals, the author of that opinion, pointed out that exceptional circumstances may exist when it is established that during the trial the accused might escape or attempt to escape from the courtroom; has made during the trial threats of physical violence on court personnel and officers of the court; has physically resisted during the trial being brought into or kept inside of the courtroom; has repeatedly during the trial interrupted the court proceedings; has during the trial physically assaulted one or more persons; has during the trial persisted in unruly conduct while in the courtroom; or has during the trial engaged in or threatened nonconforming conduct. (314) The record in this cause is clear that none of the above ever took place or occurred during the appellant’s trial in Walker County.

When an accused person must be restrained during the trial, in the courtroom and in the presence of the jury, the record should clearly reflect that such was absolutely necessary and that no other reasonable alternatives were available. This is because “the sight of shackles ... might have a significant effect on the jury’s feeling about the defendant, and the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Illinois v. Allen, 397 U.S., at 344, 90 S.Ct., at 1061, 25 L.Ed.2d, at 359. And that is why a hearing on the subject should always be held, because without such hearing the basis for such an order restraining the accused amounts only to speculation on the part of the trial judge as to what the accused might do during his trial.. Gammage v. State, supra. Unless the record clearly reflects justifiable reasons why the accused person should be restrained during his trial, as well as showing that no other alternatives were available, a trial judge should never resort to restraining the accused, because “no person should be tried while shackled ... except as a last resort.” Illinois v. Allen, supra.

The record of this cause is clear that at no time during the trial of this cause did the appellant engage in speech or conduct that might be considered noisy, disorderly, boisterous, or disruptive, nor is there anything in this record that might reflect or indicate that at any time the appellant was ever disrespectful to the trial judge. To the contrary, in representing himself, the appellant at all times conducted himself in a way that even “Miss Manners” might approve.

The trial judge in this cause clearly abused his discretion in this cause by ordering that appellant be restrained during his trial and in the presence of the jury, through the use of handcuffs, leg irons, and a belly chain. The appellant is clearly entitled to have his conviction set aside for this reason, if no other. To this Court’s upholding his conviction, I respectfully dissent.

. I have learned, however, that this conviction was appealed to the Texarkana Court of Appeals, which affirmed the conviction, and that appellant did not file a petition for discretionary review with that court.