Demison v. State
| Decision Date | 17 August 2017 |
| Docket Number | No. 11-15-00126-CR,No. 11-15-00127-CR,11-15-00126-CR,11-15-00127-CR |
| Parties | ROBERT DEMISON, III, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 91st District Court Eastland County, Texas
Trial Court Cause Nos. 23622 & 23623
The jury convicted Robert Demison, III of aggravated assault with a deadly weapon and assault against a public servant. The jury found one enhancement paragraph to be true and assessed punishment at seventy years' confinement for the aggravated-assault conviction and twenty years' confinement for the assault-against-a-public-servant conviction. The jury also assessed a fine of $5,000 in each cause. The trial court ordered that the sentences were to run concurrently. Appellant presents six identical points of error for each case on appeal. We affirm in part and reverse and remand in part.
Appellant was an inmate in the Eastland County Jail. On June 14, 2014, Aaron Blake Carper, a jailer at the Eastland County Jail, opened Appellant's cell to give him cleaning supplies, and Appellant stepped out and struck Carper on and around his head. Carper suffered a laceration to his neck, and Appellant also punctured Carper's shirt.
On July 1, 2014, Cecil Anthony Flores, a trusty at the jail, served breakfast to inmates under the supervision of Michael Shreve, a jailer at the Eastland County Jail. Shreve opened the slot to Appellant's cell. As Flores placed the food tray onto the slot, Appellant made a swinging motion at Flores and caught Flores's right index finger with a sharp object. Flores sustained a cut on his finger.
In Appellant's first and second points of error, he argues that the trial court violated his constitutional rights when it required Appellant to wear "jail garb" and to be shackled and restrained during trial. At a pretrial conference, the trial judge explained that the court "certainly would -- It's the court's preference that [Appellant] be before the jury in street clothes, rather than in clothing furnished by the Eastland County Jail." At trial, before the jury was brought in, the following exchange happened between the trial judge, Appellant, and defense counsel:
"When a trial court forces a defendant to appear at trial in jail clothes, it might thereby impinge upon the presumption of innocence afforded to an accused." Calamaco v. State, 462 S.W.3d 587, 597 (Tex. App.—Eastland 2015, pet. ref'd) (). However, a defendant who does not desire to wear jail attire must timely object. Id.
The State argues that not only did Appellant fail to object to wearing jail clothes, but he was also not compelled to do so and actually refused the opportunity to wear street clothes during trial. However, Appellant contends that he did not make a knowing and voluntary waiver of his constitutional right to be tried free of "jail garb."
We disagree with Appellant. First, Appellant was evaluated for competency by Michele L. Borynski, the chief psychologist of the competency program at theNorth Texas State Hospital - Vernon Campus. In her report, Borynski stated that Appellant was, in her opinion, competent to stand trial. She noted:
Although [Appellant] is often resistant to efforts to assess his understanding of pending proceedings and his legal situation, it is my clinical opinion that this represents a deliberate effort on the part of [Appellant] to delay and/or avoid prosecution, and that such symptoms are not the product of a current mental disease or defect.
Borynski further noted that Appellant had the ability to work with his defense attorney, although he may have been unwilling to do so, and that he "may continue to exaggerate and/or feign symptoms in an attempt to appear Incompetent to Stand Trial." Second, while Appellant ranted about "these people" that were mistreating him, he was able to relate to his attorney that he would like the jury to assess punishment in his case. Further, defense counsel explained that he had visited with Appellant and that Appellant did not wish to wear the clothing that was brought for him. But Appellant failed to present to the trial court an objection to wearing jail clothing; therefore, he has not preserved error for our review. Accordingly, Appellant's argument is without merit. Appellant's first point of error is overruled.
Appellant contends in his second point of error that his constitutional rights were violated because he was shackled during trial. The use of physical restraints visible to the jury is prohibited unless the trial court, in its discretion, finds that the restraints are justified by an essential State's interest such as physical security, escape prevention, or courtroom decorum. Deck v. Missouri, 544 U.S. 622, 628 (2005). Courts have held that some circumstances justify the use of restraints during trial, including situations where an accused expressed his intention to escape, made threats of physical violence, resisted being brought to court, repeatedly interrupted the court proceedings, attempted to leave the courtroom, or engaged in other egregious conduct. Cedillos v. State, 250 S.W.3d 145, 148-49 (Tex. App.—Eastland 2008, no pet.). However, to preserve error on appeal, Appellant must object to theuse of restraints in the jury's presence. Id. at 149-50. Appellant did not make such an objection to the trial court and, therefore, has not preserved this issue. Appellant's second point of error is overruled.
In Appellant's third point of error, he argues that the trial court erred when it instructed the jury on a mandatory presumption without a limiting instruction required by Section 2.05 of the Texas Penal Code. A person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2016). In its instructions given to the jury, the trial court stated, "The actor is presumed to have known the person assaulted was a public servant or security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer." See id. § 22.01(d). However, if the jury instruction includes the Section 22.01(d) instruction, Section 2.05(a)(2) of the Penal Code requires:
The State concedes that the trial court erred in failing to charge the jury as required by Section 2.05(a). Without the required instructions from Section 2.05(a), the presumption in Section 22.01 is an unconstitutional, mandatory presumption. See Willis v. State, 790 S.W.2d 307, 309-10 (Tex. Crim. App. 1990); Webber v. State, 29 S.W.3d 226, 230 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Mandatory presumptions are unconstitutional because they relieve the State of the burden of proving every element of the offense beyond a reasonable doubt. Garrett v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007). Because Appellant did not object at trial to this error in the court's charge, we cannot reverse the conviction absent a finding that the error caused Appellant to suffer egregious harm. Bellamy v. State, 742 S.W.2d 677, 685 (Tex. Crim. App. 1987); Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985). In determining whether Appellant suffered egregious harm, we consider (1) the complete jury charge; (2) the arguments of counsel; (3) the entirety of the evidence, including the contested issues and weight of the probative evidence; and (4) any other relevant factors revealed by the record as a whole. Hollander v. State, 414 S.W.3d 746, 749-50(Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171.
Carper, a jailer at the Eastland County Jail, testified that on June 14, 2014, at the request of Appellant, he was delivering cleaning supplies to Appellant in his "seg cell." A "seg cell" is used for disciplinary purposes and for the protection of the inmates and staff. Carper explained, "As I opened the door with my left hand and was using my right to slide the bucket in, [Appellant] stepped out and struck menumerous times in the head and neck area."...
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