Gammage v. State

• Decision Date: 13 January 1982
• Docket Number: No. 04-81-00096-CR,04-81-00096-CR
• Citation: 630 S.W.2d 309
• Parties: Clarence Marcel GAMMAGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 309

630 S.W.2d 309

Clarence Marcel GAMMAGE, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00096-CR.

Court of Appeals of Texas, San Antonio.

Jan. 13, 1982.

Rehearing Denied Feb. 10, 1982.

Alfredo Saenz, San Antonio, for appellant.

Alger H. Kendall, Jr., Stella Saxon, Karnes City, for appellee.

Before ESQUIVEL, BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

Appellant was convicted of attempted capital murder. Trial was to a jury with punishment being assessed at seventy-five (75) years' confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not questioned. Only three grounds of error are raised on appeal, all addressing trial court error in abusing its discretion. A brief recitation of the facts is necessary in order to address the error complained of.

The instant case arose out of an incident occurring on September 8, 1978, when a small red-orange car bearing California plates was observed parked on Preston Street in Pleasanton, in Atascosa County. The car was seen parked at different times at various locations, arousing the suspicions of an insurance agent who observed two black men in the automobile. Later, the same automobile was seen parked on Preston Street with the license plates having been removed.

Pleasanton Police Chief Bill Dean and Police Sergeant Lester F. Fuller were dispatched to the scene to investigate. As they exited their patrol car and approached the small car from behind, they saw appellant's head appear from the driver's side window and they observed a pistol being aimed at them. The officers were wearing full dress uniforms and were carrying service revolvers. As the officers retreated with their hands in the air, in response to verbal orders given by appellant, Fuller was shot in the chest at very close range. A high speed chase ensued with appellant driving and his brother firing shots at the pursuing officers. Some thirty miles from Pleasanton, in Live Oak County, at a roadblock, appellant brought the car to a stop and both were apprehended and placed under arrest.

Appellant and his brother, Elston Donnell Gammage, were each charged by an Atascosa County grand jury in two separate indictments with attempted capital murder, and in another indictment with resisting arrest or search by use of a deadly weapon, all arising out of the same criminal escapade. The trial court ordered the cases severed as to the offense charged but mandated a joint trial of the two co-defendants for the offenses. Trial on the instant case addressed the first incident, giving rise to attempted capital murder in the criminal escapade.

The trial was transferred to Karnes County upon the sustaining of a joint motion for change of venue. At the close of the State's case the jury returned verdicts acquitting the co-defendant and convicting appellant of attempted capital murder, as charged in the indictment.

In his first ground of error appellant alleges that the trial court erred in trying him while handcuffed before the jury. Trial on the merits began with jury selection on January 8, 1979, but at a pretrial hearing on January 4, 1979, the State had obtained a hearing on its motion to have appellant and his brother tried while under physical restraints. The motion was heard in Karnes County where appellant was being housed when not in the Nueces County jail. By this time, appellant and his brother had been away from the Atascosa and Karnes County jails almost twelve weeks.

In support of its motion the State offered the testimony of Sheriff Edwin Jalufka of Karnes County, who testified that he preferred to have both co-defendants under physical restraints throughout the trial because they were more dangerous than any other prisoners he has ever had. He based his opinion of dangerousness on the facts giving rise to the case being tried. He admittedly knew nothing about the criminal history of either but concluded that each had a bad temper because they had complained about the food being served at the Karnes County jail. The sheriff testified that he was not aware of any threats having been made by either appellant or his brother while they were being detained at the Karnes County jail. However, he had been told of an alleged escape attempt involving the co-defendants while they were being held at the Atascosa County jail.

The sheriff indicated that he planned to have four or five deputies, in addition to himself, assigned to the joint trial for security. While Sheriff Jalufka had no personal knowledge of any of the misdeeds attributed to appellant and his brother, he unequivocally testified that neither co-defendant had misbehaved while in his custody. While the testimony presented to the trial court consisted primarily of hearsay evidence several times removed, the trial court had heard other evidence relevant to the motion at some of the earlier pretrial hearings.

On October 13, 1978, a motion filed by the State seeking transfer of appellant and his brother to another jail was heard by the trial court. At that hearing Tommy Williams, the Sheriff of Atascosa County, testified that his jail was undergoing repair work and was an unsatisfactory security risk in handling prisoners charged with the type of offenses lodged against appellant and his brother. According to the sheriff only one person was assigned to work the jail at night as a dispatcher on the first floor, and he could not provide surveillance on the third floor of the jail where appellant, his brother, and seven other prisoners were housed in a ten-man cell.

The sheriff testified that two or three days before the hearing to transfer, a newly dug hole had been discovered in the wall of the holding tank in which appellant and the other eight prisoners were being held. No evidence was presented bearing on who the perpetrators of the escape attempt were. The sheriff presumed that some or all of the prisoners were responsible.

No threats about escape were ever made by appellant or his brother in the presence of the sheriff. However, the sheriff related that his dispatcher had overheard threats of escape made by prisoners on the third floor. According to the sheriff, informants had told him that appellant and his brother had indicated their intention to escape. ¹

A few days after appellant and his brother were first lodged in the Atascosa County jail a surprise inspection of the jail had revealed several homemade knives and at least one factory-made knife. The sheriff admitted that the jail population was regularly turned over and that no opportunity existed for inspecting the premises prior to placing new prisoners in the cells. The record does not reveal when the knives were obtained.

Although the third floor of the jail contained prisoners charged with murder, aggravated robbery, aggravated assault and other violent crimes, only appellant, his brother, and an extradition detainee were singled out for treatment as dangerous prisoners requiring transfer to a more secure jail. The three were subsequently transferred to the Nueces County jail. Thereafter, appellant and his brother were regularly transferred back and forth from the Nueces County jail to the Karnes County jail as needed for pretrial hearings. During the various lengthy pretrial hearings held in Atascosa County and in Karnes County, neither appellant nor his brother ever acted in any manner evidencing a need for restraints.

At one of the hearings the sheriff complained about appellant's refusing to be in court wearing leg irons. ² On another occasion the sheriff complained that appellant and his brother had become uncooperative when one of his deputies failed to wake them up in time to dress and prepare for court appearance. The sheriff admitted to the court that the fault was his in not awakening appellant until 8:30 a. m. for a 9:00 o'clock court appearance.

The record reflects that appellant and his brother periodically attended hearings from shortly after their arrest on September 8, 1978, until January 8, 1979, when trial on the merits began, without ever causing any disruption of the court proceedings or in any manner presenting a security problem.

Counsel for appellant strenuously objected to having appellant tried under restraints. The objections were reurged at various stages of the trial and the trial court eventually agreed to note counsel's continuing objection.

The apprehensive trial court declined the State's demand for leg irons but required both defendants to be tried wearing handcuffs. The trial court stipulated that the restraints would be visible to the jury and acknowledged that they would be prejudicial.

The record reflects that the Sheriff of Atascosa County was deeply concerned with the condition of his jail which was being repaired by having its windows sealed and bricked in. The description of the jail indicates the structure to be old and inadequate. A shortage of manpower is also evident from his testimony.

On the other hand, the Sheriff of Karnes County simply overreacted to the concern exhibited by the Sheriff of Atascosa County without independently ascertaining whether a problem existed some twelve weeks later.

The cautious trial court was outwardly concerned about the need for physical restraints and attempted to mitigate the prejudice by declining to require leg irons and restraining belts. In addition, he allowed both defendants to dress in civilian clothing while in court. The decision to require restraints was not immediately arrived at, the trial court instead taking the matter under advisement. However, once the decision was made the trial court committed itself to full implementation of the order.

The State argues that appellant was not unduly prejudiced because only handcuffs were used during the trial, he was nicely dressed in street clothes and no undue emphasis was placed on the handcuffs. Additionally, during oral argument before this court, the State intimated that appellant is...