Molina v. State

• Decision Date: 28 May 1998
• Docket Number: No. 14-96-01114-CR,14-96-01114-CR
• Citation: Molina v. State, 971 S.W.2d 676 (Tex. App. 1998)
• Parties: Moises MOLINA, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 676

971 S.W.2d 676

Moises MOLINA, Appellant, v. The STATE of Texas, Appellee.

No. 14-96-01114-CR.

Court of Appeals of Texas Houston (14th Dist.).

May 28, 1998.

Rehearing Overruled July 9, 1998.

David Cunningham, Houston, for appellant.

Carmen Castillo Mitchell, Houston, for appellee.

Before MURPHY, C.J., and HUDSON and CANNON, ^* JJ.

OPINION

CANNON, Justice, (Retired).

Appellant, Moises Molina, pleaded not guilty before a jury to the offense of aggravated sexual assault. He was convicted, and the trial judge assessed punishment, enhanced, at 60 years imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. In nine points of error, he contends the trial court erred in (1) ordering him bound and gagged during the trial; (2) denying his motion for mistrial based on the binding and gagging; (3) denying his motion to quash the jury panel based on the binding and gagging; and (4) admitting hearsay testimony.

Background

In January of 1995, appellant was alone at home with his eight year-old stepdaughter, the complainant. While they were watching television on the couch, appellant fondled complainant's vaginal area and pulled her off the couch on top of him. He undressed her, fondled her again, and took her to the kitchen. There, he sat her on the counter and attempted sexual penetration. He stopped when he heard the complainant's mother, Cecilia Quintanilla, coming home. Appellant told the complainant to get dressed, and he put on his shorts. Quintanilla entered the apartment and saw appellant's reflection in a mirror as he was tying the drawstrings of his shorts and threatening the complainant. Suspicious of her husband's behavior, Quintanilla called some friends from church (the Millers) and asked them to come over so she could question her daughter regarding what had happened.

When the Millers arrived, appellant was nervous and the complainant was upset. The complainant, afraid her mother would punish her, simply told her mother that appellant had pulled down his shorts and his underwear; however, she told Mrs. Miller about the attempted penetration. Quintanilla did not report the incident for over eight months, when she told authorities at the Children's Assessment Center. The complainant then told the Center's interviewer about the entire incident. Dr. Robin Williams examined her and found injuries consistent with penetrating trauma.

Prior to voir dire but before the jury panel was present, appellant complained to the court about his attorney's handling of his case. While the court addressed appellant's complaints, appellant interrupted several times, and the court admonished him not to raise his voice or interrupt. The last thing the judge said to appellant before bringing the panel back in was, "I don't want you screaming at your lawyer or talking out of turn."

Appellant was silent throughout the State's voir dire, but as his attorney was about to begin voir dire, appellant interrupted, restating his request that counsel not be allowed to represent him. In the panel's presence, he accused his attorney of tampering with witnesses and threatening witnesses to dissuade them from testifying. The judge told appellant he was out of order and asked him to be seated. When appellant continued to object, the judge asked the bailiff to take appellant out of the courtroom. Defense counsel approached the bench and moved for a mistrial and to quash the jury panel. The court denied both motions. The court then recessed the jury, brought appellant back into the courtroom, and admonished him to "act like a gentleman," speak to the court outside the panel's presence, and refrain from outbursts. The judge explained he would give appellant another chance to control his behavior and asked appellant to promise to conduct himself appropriately and to direct his requests through his attorneys. Appellant agreed.

Moments after the panel was brought back in, appellant interrupted his attorney, stating, "I cannot allow this attorney to continue, your honor. I'm sorry, I can't do it." The judge told appellant to sit down, but he continued to complain that his attorney and the district attorney had "done too much already." The panel was excused, and appellant's attorney renewed his previous motions. When the court denied them, appellant argued, "You won't even do that?" At this point, the court ordered the bailiff to get some tape and stated he wanted appellant shackled to the chair and taped. The judge told appellant he had lied to the court, and he repeated his order to bind and gag appellant. Appellant's attorney objected and again moved for a mistrial. The court reiterated its reasons for denying the motion and shackling appellant, and appellant again interrupted the court, complaining he could not breathe. Appellant removed the gag before the jury returned and interrupted as soon as his attorney's voir dire began, saying, "I fight for my freedom, your honor. My hands are a little numb, your Honor." The court again admonished appellant, this time before the jury, that he was out of order and instructed counsel to continue, but appellant interrupted, stating the court was indicating his guilt because the tape looked like handcuffs. The court gave appellant another warning in the jury panel's presence, instructing him to speak only outside their presence. As counsel was about to resume voir dire, appellant interrupted, stating, "[t]he Court has just physically assaulted me outside the panel's presence, sir." The court warned appellant he would have to excuse the panel unless appellant controlled himself but told appellant he could leave the gag off if he behaved. As his attorney again attempted to continue, appellant said, "I cannot sit here, sir, because of what this court has just done." The court excused the panel and admonished appellant, who continued to object that he had been assaulted and complained about the tape on his hands. The court ordered appellant gagged again, brought the panel back in, and continued the voir dire. Although appellant was bound and gagged during the remainder of voir dire, he was not restrained during opening argument or any other portion of the trial. Appellant made no further interruptions.

The Propriety of the Court's Action

In his first five points of error, appellant complains the court's actions violated (1) article one, section 19 of the Texas Constitution and article 1.05 of the Texas Code of Criminal Procedure, ensuring a right to due course of the law; (2) article one, sections 10 and 15 of the Texas Constitution and the Sixth and Fourteenth Amendments to the United States Constitution, ensuring a fair trial and effective counsel; and (3) the Fifth and Fourteenth Amendments to the United States Constitution, ensuring due process.

We review the trial court's decision to shackle the defendant during a trial proceeding for an abuse of discretion. See Culverhouse v. State, 755 S.W.2d 856, 860 (Tex.Crim.App.1988). The record must reflect the necessity for the court's actions. See Kimithi v. State, 546 S.W.2d 323, 326 (Tex.Crim.App.1977) (citing Moore v. State, 535 S.W.2d 357 (Tex.Crim.App.1976)).

The seminal case on this issue is Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Although in Allen, the defendant was removed from the courtroom rather than bound and gagged, the facts are otherwise similar to those in the present case. The defendant in Allen refused court-appointed counsel and was conducting voir dire when the court ordered him to limit his questioning. See id. at 1059, 90 S.Ct. 1057. The defendant began to argue with the judge, and when the judge instructed the court-appointed attorney to take over voir dire, the defendant interrupted and stated the attorney would not represent him. The defendant also threatened to kill the judge and tore up his attorney's file. Id. The judge threatened the defendant with removal, but the defendant ignored the warning. The judge eventually removed the defendant, allowed him back into the courtroom after he promised to behave, and again removed him when he interrupted the proceedings. Id. During the State's case-in-chief, the defendant was brought in strictly for identification, and even then he spoke abusively to the judge. He eventually returned without incident. Id. at 1059-60, 90 S.Ct. 1057. The Supreme Court took a strong stance against the defendant's behavior, noting the trial judge must have the discretion to ensure dignity, order, and decorum. Id. at 1061, 90 S.Ct. 1057. The Court listed three ways to maintain order in the court, which appellant correctly sets forth: (1) binding and gagging; (2) citing the defendant for contempt; and (3) removing the defendant from the courtroom. The Court noted that "[n]o one formula for maintaining the appropriate courtroom atmosphere will be best in all situations." Id. The Court then discussed the advantages and disadvantages of each option and explained that, "in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here." Id. Moreover, the Court explained that the defendant's behavior was so extreme that either removal or total physical restraint was justified. See id. at 1062, 90 S.Ct. 1057.

Appellant correctly asserts that shackling is a "last resort." See Shaw v. State, 846 S.W.2d 482, 487 (Tex.App.--Houston [14 th Dist.] 1993, pet. ref'd). Appellant then contends that Kennedy v. Cardwell, 487 F.2d 101 (6 th Cir.1973), and Woodard v. Perrin, 692 F.2d 220 (1 st Cir.1982), require the trial court to pursue less restrictive means before imposing physical restraints. Woodard, however, does not stand for this proposition. There, the court held that a judge should consider less restrictive alternatives before shackling a defendant. See 692 F.2d at 221. Appellant also cites Long v. State, 823 S.W.2d...