observing that jury could reasonably conclude that defendant had J greater right to possession of vehicle than other occupant because vehicle belonged to defendant's wife or girlfriend
How later courts described this case
- observing that jury could reasonably conclude that defendant had J greater right to possession of vehicle than other occupant because vehicle belonged to defendant's wife or girlfriend
- observing that jury could reasonably conclude that defendant had greater right to possession of vehicle than other occupant because vehicle belonged to defendant’s wife or girlfriend
- “[The officer] observed [appellant], who was a passenger in the 15 vehicle, ‘inside the car, moving around.’ Although the record does not conclusively establish these gestures were furtive, a rational juror could have concluded they were.”
Written by the judges who cited it.
The opinion
JACK CARTER, Justice,
dissenting.
What is the appellate court’s duty when it is clear that a trial court deliberately and repeatedly violates well-known and established constitutional rights of those accused of a crime? We must eradicate the practice. The majority opinion fails to do this and has now reversed its course based on a recent Texas Court of Criminal Appeals opinion, Snowden v. State. 1 I believe this Court’s original opinion is sound. The stated reason for this switch is that Snow-den no longer allows an appellate court to consider, on the issue of harmfulness of error, whether the failure to reverse for an admitted constitutional error would encourage “the State” to repeat that error with impunity.
I do not think Snowden applies in this case. In Snowden, the error was committed by the State’s attorney, whereas here the action found to be a constitutional error (placing a chain connecting two iron ankle rings on the ankles of the defendant during jury trial) was the action of the trial court. In Snowden, the error was the improper argument of the State’s counsel which infringed on the defendant’s right to remain silent — an action taken by one of the advocates in the proceeding; the trial court merely ruled. The acts which constituted the error in this case were solely and completely caused by the trial judge without involvement by the State’s counsel. The State never requested that the defendant be shackled during the trial, and the record reveals that the chain was placed on the defendant as a practice of this particular court for those who are in jail awaiting trial, but apparently not for those able to afford bail (“everybody who is in custody has the same necessity of restraint”). Apparently, shackling is required for all in custody with no judgment or discretion being exercised on an individual basis. It is the duty of the trial court to attempt to avoid error; only the appellate courts may determine, after a review of the entire case, if an error is of such a nature as to require another trial. In oral argument, State’s counsel conceded there was no basis for shackling the defendant and agreed that constitutional error occurred.
Generally, the trial court commits error by ruling on issues brought before it by one of the parties. It is a far different situation when the action which is a constitutional error is caused by the judge. If counsel seeks to continually violate well-established constitutional provisions, the trial judge is in a position to prevent or control it. Who prevents the judge from *540 continually violating established constitutional rights? A basic premise of our system of justice is that the accused should be presumed innocent until proven guilty beyond a reasonable doubt. It is the function of the trial judge to institute procedures that will assure this — instead, here, the judge, without any cause, ordered that a chain be placed on the defendant’s ankles during the jury trial. The record indicates this is a repeated practice in this trial court, but we are now holding that since we cannot know for sure if the jury saw the chain or heard it rattle, the trial court’s deliberate violation of such a well-known constitutional right does not constitute reversible error. 2
Additionally, it is important that our courts operate with dignity. The use of such devices undermines the dignity of judicial proceedings. Deck v. Missouri, 544 U.S. 622, 631 , 125 S.Ct. 2007 , 161 L.Ed.2d 953 (2005). Even if we now believe that consideration of the prevention of continual violation of constitutional rights is irrelevant as to the propriety of the outcome, it is highly relevant to the “the integrity of the process leading to the conviction.”
As one who spent twenty-one years on the trial bench and has devoted most of his life attempting to provide fair operation of one small part of our system of law, it is deeply offensive to observe the sanctioning of this practice. In essence, this case says — Judge, you may continually violate the most basic constitutional rights of our citizens with impunity, the very Constitution you took an oath to protect and defend, and your case will be affirmed unless the defendant is clever enough to produce evidence, contrary to his best interest at trial, that the jury saw or heard the chains. Even if the jury saw or heard the chains and it is not reflected in the record, you are safe with the appellate courts, regardless of the harm your continual unconstitutional practice does to the perception of fairness and the integrity of the process in our courts.
Due to their very nature, constitutional errors require more scrutiny. When constitutional errors occur, our inquiry should be focused on the integrity of the process. In other words, did the defendant receive a fair trial. The restraints in this case were described as a chain connecting two iron ankle rings; our Texas Court of Criminal Appeals has found “a trial with a prisoner in irons [is] obnoxious to the spirit of our laws and all ideas of justice.” Gray v. State, 99 Tex.Crim. 305 , 268 S.W. 941, 949-50 (1924) (op. on reh’g). No trial can be considered a fair trial where a defendant, who has not been shown to be a threat, is literally tried in chains that may have been seen or heard by the jury; an error depriving a defendant of a fair trial cannot be considered harmless. The error here was of constitutional magnitude; it was knowingly committed and is an ongoing practice in this trial court; there is no basis to reasonably conclude that beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or punishment. Tex.R.App. P. 44.2. It should be remanded for another trial.
I respectfully, but vigorously, dissent.
. Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App.2011) (designated for publication).
. Defense counsel objected that any movement by Bell would cause the jury to hear a chain rattle. The court admonished Bell to be "mindful about movement of his legs.... ”