Culverhouse v. State, 397-85

• Decision Date: 29 June 1988
• Docket Number: No. 397-85,397-85
• Parties: David Leslie CULVERHOUSE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 856

755 S.W.2d 856

David Leslie CULVERHOUSE, Appellant, v. The STATE of Texas, Appellee.

No. 397-85.

Court of Criminal Appeals of Texas,

En Banc.

June 29, 1988.

Certiorari Denied Oct. 3, 1988.

See 109 S.Ct. 164.

Joe E. Shumate, Henderson, Jon R. "Randy" Farrar, Huntsville, for appellant.

William L. Ferguson, Co. Atty. and Richard W. White and Darrell Hyatt, Asst. Co. Attys., Henderson, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was found guilty by a jury of the offense of attempted murder. See V.T.C.A., Penal Code, § 15.01 and 19.02(a)(1). The jury assessed punishment at 20 years' imprisonment. The cause was tried in Walker County after a change of venue from Rusk County.

On appeal appellant contended, inter alia, the trial court "erred in compelling appellant to proceed in trial before jury in leg irons, handcuffs, and a belly band" and the trial court erred in refusing the request to dismiss standby counsel. The Court of Appeals rejected these points of error as well as the others, and affirmed the conviction in an unpublished opinion. Culverhouse v. State (Tex.App.--Houston [14th]--No. D14-83-823-CR--Feb. 28, 1985). Citing a finding of the trial judge as to the necessity of the shackles the Court of Appeals observed the issue was whether the trial judge abused his discretion and concluded he did not. Likewise it found no abuse of discretion in the refusal to dismiss standby counsel.

We granted appellant's petition for discretionary review to determine the correctness of that decision.

The indictment charged appellant with attempted murder of Layton Cummings "by shooting the said Layton Cummings with a firearm." Cummings was a manager trainee of a Safeway Store in Henderson, who was shot by appellant, shortly after appellant had shot and killed his girlfriend with a machine gun. After shooting up the store, appellant fled to Jacksonville and "holed up" in a motel keeping police at bay for some 15 hours while falsely claiming to have a 16-year-old hostage whom he threatened to kill.

While the record is not altogether clear, it appears appellant was tried for murder prior to the instant case in Bowie County after a change of venue from Rusk County. At the instant trial appellant exercised his right to self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). His former appointed counsel was ordered to become standby counsel. At a pretrial hearing in Rusk County after the court admonished appellant of the disadvantages of representing himself, the record reflects:

"THE COURT: I'll further admonish you, Mr. Culverhouse, that the Court in this connection takes judicial notice of your conduct in a previous trial. Disruptive conduct, conduct that, in my opinion, endangered the safety of court officials and other people present at the trial, and by reason of that conduct I find it absolutely necessary for the safety of the court officials and spectators and all persons who might be a part of this trial to order that you be shackled throughout the course of the trial of this Cause No. 19, 568. That likewise will present further disadvantage to you in representing yourself. It will be inconvenient for you to do so. You will not be permitted to roam about the courtroom. You'll not be permitted to leave from your place at Counsel table, by reason of that conduct and the necessity of ordering you be restrained throughout the course of the trial. Realizing that that will be the situation and the inconvenience and disadvantage that it will cause to you in your appearance before the Jury Panel and the Jury itself that's selected, is it still you desire to persist in self-representation in this cause?

"THE DEFENDANT: Yes, sir, no. I would object to being shackled in front of the Jury. It would be highly inflammatory and prejudicial, Your Honor. I'd like--I respectfully request that you, that this Court, that the Honorable Judge Donald R. Ross state specifically on the record exactly what you're talking about, the reason you're having me shackled.

"THE COURT: Well, the reason is that in the trial of Cause No. 19,567, I believe, on the docket of this court, it received another number when it was transferred to Bowie County, wherein you were charged with the offense of murder, first degree felony--do you recall the cause number?

"MR. SHUMATE: 83 F 89, Your Honor.

"THE COURT: 83 F 89 pending in the District Court of Bowie County, wherein you were tried in that cause and that court I believe the 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 during the course of the trial. That conduct makes it absolutely essential that you continue to be restrained as you are here in court today. And I will likewise order such restraint throughout the trial of this Cause No. 19,568 because of that conduct.

"THE DEFENDANT: Your Honor, and was that court official my Court-appointed attorney, Joe Shumate?

"THE COURT: That is correct.

"THE DEFENDANT: And did you personally witness this act of violence?

"THE COURT: Yes, sir.

"THE DEFENDANT: Well, sir, I don't see what that has to do with this trial and this court at this time.

"THE COURT: Well--

"THE DEFENDANT: It still would be highly inflammatory and prejudicial to the Jury.

"THE COURT: I understand that, but I have a responsibility for maintaining the decorum and peacefulness of the courtroom and orderly trial of this case that's pending against you, and to protect participants from violence. And I feel like that that consideration outweighs the inflammatory aspect of your appearance before the Jury under restraint.

"THE DEFENDANT: Well, Your Honor, that was the reason that I asked--that I first asked that my Court-appointed attorney, Joe Shumate, be dismissed from this case because of that incident where I attacked Mr. Shumate.

"THE COURT: Now, understanding what the Court intends to do, regarding restraints throughout this trial, I once again ask you, do you still persist in self-representation?

"THE DEFENDANT: Yes, sir.

* * *

* * *

"THE DEFENDANT: I'm not looking for any delay, Your Honor. I'd like to get this thing over as soon as possible. I would object to Mr. Shumate being stand-by counsel, because of the things we talked about earlier where I attacked Mr. Shumate. I believe I broke some bones in his face and broke his nose. Is that correct, Joe?

"MR. SHUMATE: You have to ask the doctors, David.

"THE COURT: That will be enough of that, okay?...."

Subsequently, and again before trial in Walker County and after the granting of the motion to shuffle the jury panel, the record reflects:

"MR. CULVERHOUSE: Your Honor, if it please the Court, I would respectfully request that the handcuffs and this chain wrapped around my waist and these leg irons be taken off of me at this time, Your Honor. I feel that if I'm to stand trial shackled in front of the Jury, Your Honor, it is so prejudicial and inflammatory, it would in fact destroy the presumption of innocence that is guaranteed me under the Constitution of the United States of America. According to the law, the Defendant will be presumed innocent until proven guilty beyond a reasonable doubt. I don't see how the jury can presume me innocent, Your Honor, by witnessing me wearing handcuffs and shackled during the trial and leg irons. There's a wrong way and there's a right way to try a man in this country. And to try him in shackles is unconstitutional, Your Honor. It destroys the Defendant's right to a fair trial, to be afforded a fair trial by unbiased and unprejudiced jurors. At this time I would respectfully request the court to show me the law that states that a Judge can force a Defendant to stand trial wearing shackles in front of a Jury, Your Honor.

"THE COURT: The Court has already ruled on that motion once. I will overrule your motion and deny your request to show you the law. I will state for the record once again that the Court orders you shackled throughout the duration of this trial because the Court feels it deems it absolutely necessary to protect the safety and security of this courtroom and the officers of this court. And the reason for that being that on the 27th day of April, 1983, in the trial of a companion case to this one in another courtroom the Defendant became violent in the course of that trial, assaulted an officer of this court being his own Court-appointed attorney and because of that conduct, the Court deems it absolutely essential and necessary for the security and safety of the officers of this court and anyone else that you be shackled throughout this trial.

"MR. CULVERHOUSE: Your Honor, were you an eyewitness to this incident?

"THE COURT: That's the end of the ruling. I will not engage in any kind of argument or colloquy with the Defendant over it. That's the ruling of the Court, and that's the way it will be.

"MR. CULVERHOUSE: Well, Your Honor, I wasn't trying to start an argument."

The foregoing excerpts from the record contain the basis for the trial court's order. ¹

The State concedes that appellant was restrained at all times during the trial as he alleges, and argues that such restraint was both necessary and proper under the circumstances.

Generally, a defendant has a right to be tried without being handcuffed. Lyons v. State, 668 S.W.2d 767 (Tex.App.--Houston [1st Dist.] 1984) (pet. ref'd).

In Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941, 950 (Tex.Cr.App.1924), this Court stated:

"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...