Opinion
No. 06-11-00239-CR
06-13-2012
LANCE EDMOND GLASSCOCK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 27,396
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
Concurring Opinion by Justice Carter
MEMORANDUM OPINION
In this appeal, Lance Edmond Glasscock complains of proceedings in the punishment stage of his trial for evading arrest with a vehicle. On the second day of punishment testimony, Glasscock was brought into the courtroom in his jail jumpsuit and made to wear handcuffs. Glasscock objected to these circumstances, as well as to hearsay testimony presented by a law enforcement officer connecting Glasscock to a methamphetamine laboratory near Glasscock's residence. Although we find some error in the court below, we find such error harmless and affirm the trial court's judgment and sentence.
See TEX. PENAL CODE ANN. § 38.04 (West Supp. 2011). The State alleged and proved Glasscock had previously been convicted of this offense, making it a third-degree felony.
The guilt/innocence phase of Glasscock's trial concluded in just about five hours. The same afternoon, after the jury found Glasscock guilty, the State began presenting punishment evidence. A law enforcement officer identified Glasscock's fingerprints and convictions for seven prior felonies, and those judgments were admitted to evidence.
Three of these prior felony convictions had been alleged in the indictment as enhancements. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2011). The various prior convictions included a burglary of habitation; three controlled substance offenses, one of which was a state-jail felony; an unauthorized use of motor vehicle offense; a forgery offense; and the prior evading arrest with vehicle offense (state-jail felony) proved at guilt/innocence to elevate the primary offense to a third-degree felony.
The next morning, the punishment phase resumed, and Glasscock's attorney objected that Glasscock was being made to wear a jail jumpsuit and handcuffs:
[Defense attorney]: I would like to raise two motions. One, Your Honor, I am objecting to the dress of the defendant, Mr. Glasscock. He does have a suit available. We're objecting that he's here in jail [sic] in a jumpsuit. And also we're objecting, Your Honor, that he's handcuffed and unable to write notes and assist me in the preparation of the presentation of this case.Glasscock's first two points of error complain, respectively, about the trial court's acts which resulted in Glasscock's appearing before the jury in jail clothes and handcuffs.
So we would ask that he be unhandcuffed.
THE COURT: I'm going to defer to transport, whatever they think is necessary for courtroom safety. And if he can be uncuffed safely for courtroom security, I'll allow that. If he's required to be handcuffed, I'm going to make sure he's in handcuffs.
No Error Preserved Regarding Jail Clothes
The objection quoted above, and the trial court's ruling, contains the extent of the on-the-record discussion about Glasscock's attire and restraints. Following the quoted ruling, the defense presented objections to the State's punishment evidence. The trial court did not rule on Glasscock's complaint about the jail clothes, and Glasscock did not insist upon a ruling. Therefore, Glasscock's appellate complaint about being made to appear before the jury in jail clothes was not preserved for our review. TEX. R. APP. P. 33.1(a)(1); Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009) (complaining party must have raised his complaint in form of objection, request, or motion in trial court and secure ruling). We overrule the first point of error.
Although not relevant because of the failure to preserve error, we observe that the record shows (through statements of trial counsel) that Glasscock wore a suit during the first morning of testimony, and after lunch, he seems to have changed into a grey shirt and jeans, apparently in an effort to cross-examine or impeach the arresting officer about his recollection of what Glasscock was wearing at the time of arrest. During redirect examination, the State made reference to the change of attire, stated Glasscock had not been in a suit when arrested, then posed this question: "So it would be fair to say that obviously his family was able to bring him clothes while he's in custody?" Glasscock made no objection. We point this out just to note that to some extent the jury had already been made aware that Glasscock was in custody during trial.
Handcuffs Harmless Error
The trial court did, however, rule on Glasscock's objection to being handcuffed during the punishment phase of trial: although not explicit, the trial court overruled the handcuff objection. Whether a defendant shall be tried in restraints is within the discretion of the trial court. Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). However, absent specific reasons to necessitate, an accused may not be made to stand trial in handcuffs, shackles, or other physical restraints. A trial court may order a defendant restrained during trial where there is some indication restraints are necessary for the safety of the accused, bystanders, or officers of the court; or if there is a suggestion the defendant poses a danger of escaping. See Gray, 268 S.W. at 949 (op. on reh'g). Where the trial court fails to make specific findings on the need for restraints, that court abuses its discretion. Ziolkowski v. State, 223 S.W.3d 640, 643 (Tex. App.--Texarkana 2007, pet. ref'd).
"We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a case to proceed under such circumstances, he should be very sure of his ground." Gray v. State, 268 S.W. 941, 950 (Tex. Crim. App. 1924) (op. on reh'g).
See also Simms v. State, 127 S.W.3d 924, 928 (Tex. App—Corpus Christi 2004, pet. ref'd) (trial court abused discretion by failing to make record reasons for restraint of defendant); Cox v. State, 931 S.W.2d 349, 352 (Tex. App.—Fort Worth 1996), pet. dism'd, improvidently granted, 951 S.W.2d 5 (Tex. Crim. App. 1997); Brown v. State, 877 S.W.2d 869, 871 (Tex. App.—San Antonio 1994, no pet.) (generalized concerns about nature of defendant's prior sentences insufficient to support restraint).
Here, the trial court made no specific findings of its own regarding the need for Glasscock to be handcuffed. The trial court simply said it was deferring to "transport," presumably the sheriff's department officer(s) responsible for bringing Glasscock to and from the courthouse. There was no indication in the record that Glasscock had been violent, presented a danger to himself, officers of the court, witnesses, or attendees of the trial. Nor was there any evidence Glasscock posed a flight risk or had threatened to escape. It is true that the day before, Glasscock had received his second conviction for evading arrest with a vehicle.
When a jury sees a defendant in handcuffs or shackles, the defendant is harmed because his constitutional presumption of innocence is infringed. Long, 823 S.W.2d at 282. There are, though, other relevant concerns: shackling may also impede a defendant's ability to assist in his defense; and the dignity of the judicial process may suffer. Deck v. Missouri, 544 U.S. 622, 630-31 (2005). The State claims that there is no presumption of innocence at the punishment phase of a trial. This is true to some extent. For example, the United States Supreme Court made this very observation in Deck, noting that "the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption." Id. at 632. Texas cases have also stated that the presumption of innocence does not apply at the punishment phase. Marquez v. State, 725 S.W.2d 217, 227 (Tex. Crim. App. 1987) ("Appellant's right to a presumption of innocence terminated after he was found guilty of capital murder."); Lewis v. State, 866 S.W.2d 272, 277 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd).
There is one particular circumstance present in Glasscock's case, however, which we do not find clearly addressed in cases holding there is no presumption of innocence in the penalty phase: at least part of the State's punishment evidence against Glasscock alleged previously unproved extraneous offenses, to-wit, that a methamphetamine laboratory was being run on the property where Glasscock lived; and that methamphetamine was being sold from the home, either by Glasscock or members of his family. Glasscock still had a presumption of innocence as to these allegations, and to the prior felony convictions alleged by the State. The cases we have found stating there is no presumption of innocence at the punishment phase seem to be saying that presumption has been conclusively resolved as to the underlying offense. For example, in Deck, the issue of handcuffing arose when the case was remanded for a new punishment phase. There are indications in the opinion that in addition to the murders and robbery for which Deck was convicted, evidence was introduced about other murders that Deck committed, and that he had assisted other prisoners with an escape attempt. Deck, 544 U.S. at 648 (Thomas, J., dissenting). There is nothing in the opinion about what elements of those other offenses had to be proved at Deck's sentencing, if those acts had been tried and proved, or if they were unproven extraneous offenses. Likewise, in Marquez, when the Texas Court of Criminal Appeals' opinion described all the incidents in the record justifying restraining Marquez during the punishment phase, the opinion seems to suggest those matters were being introduced to prove future dangerousness. Marquez, 725 S.W.2d at 222. As far as the rebutted presumption of innocence, we construe the court's language to refer to the primary offense: "Appellant's right to a presumption of innocence terminated after he was found guilty of capital murder. Thus, at the time appellant was shackled he had no right to a presumption of innocence." Id. at 227. Factors leading a jury to conclude a defendant would pose a continuing threat to society (i.e., future dangerousness), like extraneous offenses offered for consideration regarding punishment, must be proved beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. arts. 37.071, § 2(c), 37.07, § 3 (West Supp. 2011).
Article 37.071 has undergone revisions over the years, but the requirement of an affirmative finding, shown beyond a reasonable doubt, on the issue of future dangerousness, has remained constant.
We do not disagree with the cited cases that following conviction, a defendant's presumption of innocence has been rebutted--as to the charges for which he has just been convicted. But we do not construe these cases to have dispensed with a defendant's presumption of innocence for crimes or extraneous bad acts for which that defendant has not stood trial (or, in the case of prior convictions, which may or may not have been sufficiently proved). Therefore, if the handcuffs were visible, there could still be an infringement upon Glasscock's presumption of innocence regarding the extraneous offenses and former convictions alleged by the State.
Deck also clearly stated that the considerations that preclude routine shackling of defendants at the guilt/innocence stage of criminal trials are equally relevant during sentencing of a capital trial: "The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital case." Deck, 544 U.S. at 632. The State argues that Deck is limited to capital cases, but we are unconvinced. The Court did point out that a jury in the punishment phase of a capital case is deciding between life and death. Id. But we have not been presented with any compelling reason why Deck's considerations are not just as relevant in a noncapital case, specifically one, as here, where the defendant faces a possible punishment range of twenty-five years to life in prison.
In his dissent, Justice Thomas pointed out that a jury in the sentencing phase of a capital case knows the defendant has been convicted of a dangerous crime; thus, Thomas reasoned, no harm could befall a convicted inmate if the jury saw him in shackles. Deck, 544 U.S. at 652-53 (Thomas, J., dissenting). We find this relevant to Glasscock's situation, where even though he had been found guilty, evading arrest with a vehicle is not inherently dangerous, at least as compared to capital crimes. The majority also noted that appearing in shackles is likely to signal to the jury that the defendant is dangerous: "The appearance of the offender during the penalty phase in shackles . . . almost inevitably implies to a jury . . . that court authorities consider the offender a danger to the community. . . ." Id. at 633.
Deck's second two considerations are less quantifiable in this case. After the jury retired to deliberate, the trial court made the following finding on the record:
I want the record to reflect [Glasscock's] left hand was available for writing notes.Glasscock's attorney acknowledged Glasscock had been able to communicate with him; no further record was made of this issue. Nothing in the record suggests Glasscock wanted to take the stand at punishment, and there is no indication the restraints played any part in his decision not to take the stand (i.e., there is nothing to suggest Glasscock did not testify for fear of making his shackles evident to the jury). Therefore, we do not find anything in the record establishing that the shackles worn by Glasscock had a negative impact on his right to assist and receive effective representation of counsel. See id. at 631.
He was able to communicate; is that correct, Mr. Shelton [Glasscock's attorney]?
It is difficult to assess what effect Glasscock's handcuffs had on the dignity of the judicial proceedings. There is nothing in the record showing the handcuffs were visible to the jury. Where there is no evidence the jury saw a defendant's restraints, the error will be held harmless. Long, 823 S.W.2d at 283 (Long charged with brutal capital murder, but no evidence of violence during trial; trial court acknowledged he had been well-behaved; absence of specific findings on need for shackling made restraints abuse of discretion; but harmless where nothing in record establishing jury saw restraints); see also Canales v. State, 98 S.W.3d 690, 697-98 (Tex. Crim. App. 2003) (no harm shown where no evidence jury aware of/saw defendant's shackles). However, as cited above, making a defendant stand trial while shackled is "obnoxious to the spirit of our laws," and should only occur where the record shows the reasons for such restraints. Gray, 268 S.W. at 950.
We find the trial court abused its discretion to allow Glasscock to attend the punishment phase of trial while wearing handcuffs without making specific findings on the record to justify the restraints. Because this error, infringing Glasscock's presumption of innocence, is of constitutional dimension, we must reverse unless we find beyond a reasonable doubt this error did not contribute to Glasscock's punishment. TEX. R. APP. P. 44.2(a); Long, 823 S.W.2d at 282 (jury seeing defendant in handcuffs or shackles violates constitutional presumption of innocence).
Our harm review for constitutional errors is dictated by the analysis in Harris v. State, as modified by Snowden v. State We consider (a) the nature of the error, (b) the extent emphasized by the State, (c) the probable collateral implications, and (d) the weight jury may have given the error in their deliberations. See Snowden, 353 S.W.3d at 822. These factors are not exclusive; other considerations may logically inform our harm analysis. Id. Snowden stressed that the prevailing consideration in reviewing constitutional error was whether the error contributed to the verdict--here, punishment--in the instant case. Id. at 821.
790 S.W.2d 568 (Tex. Crim. App. 1989).
353 S.W.3d 815 (Tex. Crim. App. 2011); see also Bell v. State, 356 S.W.3d 528 (Tex. App.—Texarkana 2011, pet. granted).
"On the other hand, not every remaining Harris factor will invariably have logical application with respect to every conceivable constitutional error that may be subject to an analysis for harm. At bottom, an analysis for whether a particular constitutional error is harmless should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether 'beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment.'" Snowden, 353 S.W.3d at 822 (quoting TEX. R. APP. P. 44.2(a)).
The nature of the error is the danger of infringement on Glasscock's presumption of innocence as to the alleged extraneous bad acts of manufacturing and selling methamphetamine, as well as the prior felony convictions which had to be proved by the State for the jury to consider them in deciding punishment. However, the State did not emphasize the error—no mention was made during examination of witnesses or during closing arguments about Glasscock's handcuffs. As for possible collateral consequences of handcuffs, and the weight possibly given by the jury, we again observe there is nothing in the record suggesting the jury ever saw the handcuffs. There is no harm where the record does not show the jury saw the restraints. Long, 823 S.W.2d at 283; Canales, 98 S.W.3d at 697-98.
We conclude beyond a reasonable doubt the trial court's error in having Glasscock attend his punishment trial in handcuffs, without stating sufficient reasons on the record, did not contribute to Glasscock's punishment.
We contrast this situation with that in Wiseman v. State, 223 S.W.3d 45 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd), where the appellate court found the trial court's reasons for ordering the defendant "mere generalities" and, thus, an abuse of discretion. Id. at 50. The court could not find, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. There was some indication in the record the jury could have seen and/or heard the restraints; the reviewing court was "unable to conclude from the record that appellant's shackles were not heard or seen by the jurors and did not constrain appellant's ability to communicate with counsel, thus affecting the jury's assessment . . . ." Id. at 51.
No Error in Admission of Hearsay
In his third point of error, Glasscock argues the trial court erred in allowing hearsay testimony from one of the State's witnesses. The complained-of testimony asserted Glasscock was seen running away from a methamphetamine laboratory found on the property where Glasscock lived. During its presentation of punishment evidence, the State presented testimony from Deputy Rusty Grimes. Grimes was investigating reports that Glasscock was selling drugs from his home. Grimes organized at least one controlled buy of methamphetamine from Glasscock's house property. In January 2011, Grimes went to the home, where he observed two men run from a building behind the home. Grimes contacted Glasscock's wife, Karen, who allowed Grimes to look around. Grimes found evidence of a methamphetamine laboratory; he asked Karen about it, and she acknowledged that Glasscock was one of the men Grimes had seen running from the building and that she knew there was a drug laboratory in the building.
Grimes testified Glasscock, his wife, and their daughter lived on a rural property consisting of a house and two other buildings; the property was owned by Glasscock's mother. The methamphetamine laboratory was found in one of the two buildings; 28 grams of methamphetamine was found in Glasscock's bedroom.
Here is Grimes' testimony, relating to Karen's statements:
Q. [By the State] Now, after you found the things in the house and the building behind, did you speak to Karen Glasscock again --On appeal, Glasscock complains statements attributed to Karen stating Glasscock and another man ran from the building with the methamphetamine laboratory were used as evidence Glasscock was running the methamphetamine laboratory.
A. [By Grimes] Yes.
Q. -- about what you found? And did she make statements about who those things belonged to?
. . . .
[Defense objects to hearsay; State argues the testimony is admissible as Karen's statements against her own interest; the objection is overruled]
Q. So what did Karen tell you about the -- what --
A. The second time we interviewed her after, you know, what was found, she admitted she knew what was going on out there. She admitted it was Lance and an individual named Bo. She didn't know his last name at that time. He lives in Payne Springs.
Q. Okay. And that it was Lance doing what?
A. She said they was [sic] out there. She knew there was a drug lab out there.
Q. And did she say if she knew who was running from the lab when the officers arrived?
A. Yes, she [sic]. Said that's who was out there, them two individuals.
Q. Karen told you that it was the defendant and another person who were running from the lab when the officers arrived?
A. Yes.
The State argues Glasscock failed to preserve this point for our review, because Glasscock did not object each time Grimes offered a statement of Karen. Based on the context of the objection and the span of time involved, we find the objection was sufficient to apprise the trial court of the complaint and sufficient to preserve the matter for review. See TEX. R. APP. P. 33.1(a)(1)(A).
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Glasscock argues Karen's statements that "it was Lance and an individual named Bo" and "that's who was out there, them two individuals" shifted blame toward Glasscock and away from her, and, therefore, were not against Karen's interest. See Walter v. State, 267 S.W.3d 883, 899-900 (Tex. Crim. App. 2008). There, the witness, a co-defendant, made statements to a relative which tended to put more or most of the blame for the killing on defendant Walter, and thus were inadmissible. The Texas Court of Criminal Appeals' decision focused on the trial court's obligation to parse out inculpatory from exculpatory statements.
We need not decide whether Karen's statements were sufficiently against her interest to qualify as an exception to the hearsay rule. The crux of Glasscock's complaint is that the statements of Karen, related by Grimes, offered evidence connecting Glasscock with the building where the methamphetamine laboratory was found and that he was associated with the manufacture of methamphetamine. The same evidence had already been admitted without objection. Grimes testified he knew the property where Glasscock lived with his wife and adult daughter: Grimes had been there fifteen to twenty times. Grimes described in detail all the accoutrements, ingredients, and processes he viewed on the property leading him to conclude a running methamphetamine laboratory was operating. Twenty-eight grams of methamphetamine was found in a bedroom which Grimes identified as being Glasscock's. There having been admitted substantial evidence of a methamphetamine laboratory on the property where Glasscock lived and a large amount of methamphetamine found in Glasscock's bedroom, we cannot see how Glasscock was harmed by the hearsay testimony, even if it was erroneously admitted. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999); Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993). We overrule Glasscock's third point of error.
We affirm the trial court's judgment and sentence.
Bailey C. Moseley
Justice
CONCURRING OPINION
I concur in the result.
Jack Carter
Justice
Do Not Publish