Ex parte Slaton

Decision Date05 September 1972
Docket NumberNo. 46117,46117
Citation484 S.W.2d 102
PartiesEx parte Alvin Darrell SLATON.
CourtTexas Court of Criminal Appeals

Hugh Lowe, Austin, for appellant.

Henry Wade, Dist. Atty., and Camille Elliott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a post conviction application for a writ of habeas corpus brought under the provisions of Article 11.07, Vernon's Ann.C.C.P. Petitioner's conviction for possession of a narcotic drug, to wit: Fentanyl, was affirmed in 418 S.W.2d 508.

Without detailing the history of past habeas corpus applications in both state and federal courts, it is observed that the present application was first filed in the convicting court. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967). Such application listed 15 grounds why petitioner's conviction should be set aside.

The trial court does not appear to have conducted an evidentiary hearing as such, but on December 7, 1971, a written stipulation between the petitioner, his counsel, and an assistant district attorney was filed. Said stipulation was to the effect that petitioner was required, over his objection, to appear before the jury throughout the trial, which resulted in his conviction, 'while dressed in a jail uniform and wearing handcuffs.' This stipulation related to two of petitioner's 15 grounds for relief.

The court filed findings of fact 1 in which it concluded that petitioner was required to appear throughout his jury trial in his jail uniform and in handcuffs, despite his objections. The court further found the affidavit and search warrant were defective since such instruments 'allege possession of the narcotic drug in '. . . Johnnye Jenette Edwards, Alvin Slaton, and/or persons unknown . . ." Wood v. State, 156 Tex.Cr.R. 419, 243 S.W.2d 31 (Tex.Cr.App.1951), was cited in support of such finding.

In light of the authority cited, it is presumed that the trial court meant to refer to the allegations in the instruments mentioned alleging that the premises in question to be searched were occupied, possessed or controlled by 'Johnnye Jenette Edwards, Alvin Slaton, and/or persons unknown.'

The trial court concluded the petitioner was entitled to the relief sought and the clerk was directed to transmit the record to this court. The record was received on August 14, 1972, nine months later. 2

Thus, only three of appellant's 15 grounds were passed upon by the trial court.

Turning first to the question of trial in handcuffs, we observe that in Hernandez v. Beto, 443 F.2d 634, 636 (5th Cir. 1971), the Court sought to distinguish between trial in jail garb and trial in handcuffs. There, the Court wrote:

'. . . While '(f)reedom from shackling and manacling of a defendant during the trial of a criminal case has long been recognized as an important component of a fair and impartial trial,' Odell v. Hudspeth, 10 Cir. 1951, 189 F.2d 300, 302, cert. denied, 342 U.S. 873, 72 S.Ct. 116, 96 L.Ed. 656, it is undoubted that a trial judge has discretion to order that a defendant be handcuffed during trial to prevent his escape, to prevent him from injuring bystanders and officers of the court, or to maintain a quiet and peaceable trial. The wearing of prison garb certainly could have little or nothing to do with security precautions in this case. . . .'

In 56 Tex.Jur.2d Trial § 64, p. 400, it is written:

'Whether the accused may be restrained during trial by shackles or by any other form of confinement is a question to be determined by the judge, whose decision is governed by considerations of security. Ordinarily, however, a defendant should not be constrained during the trial, since a trial with the prisoner in irons is considered obnoxious to the spirit of justice.'

See also Ramirez v. State, 383 S.W.2d 606 (Tex.Cr.App.1964); Clark v. State, 398 S.W.2d 763 (Tex.Cr.App.1966), and cases there cited; Garcia v. State, 435 S.W.2d 533 (Tex.Cr.App.1968); Cline v. State, 463 S.W.2d 441 (Tex.Cr.App.1971), and Mallonee v. Lanier, 354 F.2d 940 (5th Cir. 1966).

The stipulation entered in the habeas corpus hearing in the instant case reflects that the petitioner was handcuffed during the trial, over objection.

This complaint was not raised on appeal and the appellate record does not support the stipulation. We do observe that one of petitioner's appointed counsel in a 'Second Motion For Continuance' alleged that when he went to the jail to confer with the petitioner on February 10, 1966, he was informed the petitioner had attempted suicide and was in the lunacy ward of the county jail and he was forced to confer while the petitioner was tied hand and foot to a cot to prevent injury to himself (petitioner).

During the trial, evidence offered by the petitioner on the issues of insanity reflected, among other things, that petitioner howled like a dog, had cut himself with a razor blade, and had set fire to himself.

If the petitioner was handcuffed, as the stipulation would indicate, it may well have been to prevent the petitioner from injuring himself and to maintain a peaceable trial. Under these circumstances, there would be no reason to set this conviction aside on that basis even if an objection was in fact made. The stipulation offered is simply insufficient to show that the court abused his discretion in ordering the petitioner handcuffed, if he was.

Appellant contends '. . . that if the record discloses no good reason for having the prisoner manacled during the trial the same will be cause for reversal . . ..' Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941, 949 (1925). Gray's case was on direct appeal and in post conviction habeas corpus proceedings, the burden of proof is upon the petitioner.

Further, in Gray's case, the judgment was affirmed pointing out that the testimony offered on the motion for new trial showed Gray to be a danger to himself and others and that the trial judge did not abuse his discretion. Similar evidence is in the record before us.

And, in Cline v. State, 463 S.W.2d 441, 444 (Tex.Cr.App.1971), the court wrote in connection with the claim of being handcuffed during a portion of the trial that

'(a)ppellant has failed to show any evidence of injury or prejudice to him. Ramirez v. State, Tex.Cr.App., 383 S.W.2d 606, and Xanthull v. State, Tex.Cr.App., 403 S.W.2d 807 . . ..'

Such latter view is contrary to that expressed in Gray.

Next, we concern ourselves with the question of trial in jail clothes, over objection. Much has been written on this question since the decision in Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), wherein the court held '. . . that trying Hernandez in his prison clothing infringed a fundamental right--the presumption of innocence.' 443 F.2d at 636, 637. Hernandez had made no objection. Although not changing its decision under the circumstances described, the Court, on rehearing, somewhat modified its position when it wrote, '. . . A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.'

In Garcia v. Beto, 452 F.2d 655 (5th Cir. 1972), the same Court recognized that as a matter of strategy, an appellant often wants to be tried in jail clothing and that it is common for a defense counsel to prove before the jury how long the accused had been confined in jail.

In United States v. Fideler, 457 F.2d 921 (5th Cir. 1972), the same Court held that prison garb within the Hernandez rule means 'an identifiable prison uniform, not civilian clothes belonging to the accused that he happened to be wearing in prison' (Webb County jail).

Applying Hernandez retroactively, this court in Ephraim v. State, 471 S.W.2d 798 (Tex.Cr.App.1971), held that reversible error resulted when there was an objection to being tried in jail clothes, but recognizing the trial strategy angle the court held in Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972), that '(a)bsent an objection, it is presumed that he was willing to go to trial in jail clothing.'

And, only recently in Barber v. State, 477 S.W.2d 868 (Tex.Cr.App.1972), the court reviewed the pre and post Hernandez cases in Texas. See also Simmons v. State, 480 S.W.2d 633 (Tex.Cr.App.1972).

In the instant case, the stipulation entered at the habeas corpus hearing reflects that the petitioner was tried in jail clothes, over objection. While the stipulation finds no support in the appellate record on original appeal and, while this court is not bound by the findings of the trial court in post conviction matters, see Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968), and cases there cited, we still find no basis for disregarding the same. It would appear that petitioner has brought himself within the holding of the Ephraim case. Nevertheless, we observe that the record on original appeal reflects that during the trial the petitioner called several witnesses who were jail inmates who described some of petitioner's bizarre acts while in jail. This testimony was offered on the issues of insanity. Thus, the question of harmless error, which was not discussed in Ephraim, is raised.

In order for a federal constitutional error to be held harmless, the court must be able to declare its belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969).

All of these jail clothing cases '. . . must be considered in its (their) own factual context.' Hernandez v. Beto, supra, 443 F.2d at 637.

In reviewing the issues involved in petitioner's trial, as discussed in 418 S.W.2d 508, we are unable to say that the error here reflected by the stipulation was harmless beyond a reasonable doubt.

The petitioner is entitled to the relief he seeks.

We would further note that the convicting court did not pass upon petitioner's contention that his competency to...

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  • Freeman v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 18, 1977
    ...We said: "(6, 7) It is within the discretion of the trial judge to require uniforms and handcuffs for a defendant. See Ex parte Slaton, Tex.Cr.App., 484 S.W.2d 102 (1972); Hernandez v. Beto, supra, (443 F.2d 634 (5th Cir.)) and Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973). We hold that......
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