Randle v. State, 09-90-066
| Decision Date | 27 February 1991 |
| Docket Number | No. 09-90-066,09-90-066 |
| Citation | 805 S.W.2d 582 |
| Parties | Shelton Paul RANDLE, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
James A. DeLee, Port Arthur, for appellant.
Tom Maness, Dist. Atty., John R. DeWitt, Asst. Dist. Atty., Beaumont, for State.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
In the September term, 1989, an indictment was returned charging the Appellant, Shelton Paul Randle, with the offense of delivery of a controlled substance, to-wit, cocaine. Also in the indictment was an enhancement paragraph setting out a robbery conviction, which conviction was alleged to have occurred in January, 1984.
Trial on the merits in this matter began January 29, 1990, and concluded on January 30, 1990. On January 29, 1990, just before voir dire was conducted, the court proceeded with the hearing of several motions (e.g., removal of present counsel and appointment of new counsel). In addition to the prior motions, the Appellant filed a motion for speedy trial. The trial court granted the motion for speedy trial but denied the motions for removal of present appointment counsel and for appointment of new counsel. At this same hearing, the Appellant's counsel raised an objection to the Appellant being placed before the jury in jail attire. The court denied the Appellant's objection based on the premise that the jail did not have any civilian clothes for the Appellant, nor could the Appellant fit in the civilian clothes that the court had, nor did the Appellant's counsel or family bring any civilian clothes in which the Appellant could be dressed. The Appellant admits he was notified the day before he was going to trial. Notably, no motion for continuance was filed or requested by the Appellant or his counsel.
The court proceeded with voir dire, even though the Appellant was dressed in jail clothes. Just prior to the closing of voir dire, the court admonished the panel not to hold it against the Appellant simply for being in jail clothing, but the court also inquired as to whether any one on the panel thought the Appellant was automatically guilty because of his dress. There was no response. Again, the court asked the panel if his dress bothered anyone at all. Again, there was no response. In addition to the court's admonishment, the State through its trial counsel, did the same.
The Appellant's counsel only lodged an objection which the court overruled the relevant motion. The jury panel left the courtroom. Just prior to the picking of the jurors, the attorney for the Appellant moved for a mistrial. The motion was denied by the court because defense counsel was given adequate and timely notice of the trial date; but no clothes had been provided for the Appellant. Besides, the Appellant had filed a motion for speedy trial upon which he insisted.
On January 30, 1990, the Appellant was dressed in civilian attire. The Appellant was found guilty of delivery of a controlled substance, cocaine. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 40 years and fined $10,000. Appellant pursues this appeal.
The Appellant asserts that "the trial court erred in overruling Appellant's objections to his having to appear before the jury in jail-issued clothing, thereby infringing on his constitutional right of presumption of innocence."
We overrule this point because we find no abuse of discretion. Firstly, it was the defendant/Appellant who insisted on having a speedy trial based in major part on constitutional grounds. Even on the day of the trial, during a pre-trial hearing, the Appellant filed a motion for speedy trial. In addition, the trial court questioned the Appellant on this motion and he responded with an affirmative answer.
Secondly, the Appellant, if not personally, at least through his counsel, knew of the trial date by the fact that the trial judge clearly stated it in the record that he had notified the Appellant's trial would be held. This was not controverted.
Thirdly, the trial court had instructed the jury panel not to consider the Appellant's attire as an indication of guilt. This deduction is manifestly exhibited in the questions put forth to the jury panel by the trial court. One of the questions was: "the fact that the defendant is dressed in a jail uniform, would that cause any of you to feel that he is automatically guilty because of how he is dressed?" The response was nil. Furthermore, the trial court informed the jury panel that Appellant was provided with civilian clothes, but none of the clothes fit him. Again, during the conclusion of the trial court's instruction, the court asked the jury panel if: No one was bothered.
Fourthly, the Appellant could have requested a continuance or postponement. This Appellant failed to do.
Fifth, even the Appellant's brief admits that this incident of the jail clothing could have been avoided by conducting the voir dire the next day. Finally, the Appellant was provided with civilian clothes the next day being only a few hours after the voir dire.
We are well aware that in some situations to be tried in jail clothing before a jury violates the Appellant's rights and infringes upon his presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh'g den'd 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976); U.S. CONST. amend. XIV. Furthermore, this Court is well aware the Court of Criminal Appeals has held that where there is no showing of harm or prejudice to the defendant (even though he may be attired in jail overalls before the jury panel) and when the evidence prevails overwhelmingly against the Appellant; then error, if any, would be harmless beyond reasonable doubt. Kimbel v. State, 537 S.W.2d 254 (Tex.Crim.App.1976).
Foremost, this matter is not a hand restraint case and the rationale involved in those types of cases is not applicable to the matter at bar. The trial of the Appellant in jail clothing is not inherently unfair or prejudicial where the Appellant insists upon having a speedy trial. Any infringement of rights was waived by the Appellant upon his constant insistence for a speedy trial even on the very day of trial.
The Court of Criminal Appeals has defined "abuse of discretion" as being any act that is arbitrary or unreasonable. Montgomery v. State, No. 1090-88 (not yet reported). It is well within the discretion of the trial judge to permit uniforms under this record. Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987); Ex Parte Slaton, 484 S.W.2d 102 (Tex.Crim.App.1972). The test on appeal is whether the trial court abused its discretion in requiring the witnesses to appear in a jail uniform. To enable this intermediate court to review the trial court's action on appeal, the entire record must be examined to determine if it contains factual matters which support the trial judge's discretion. After a careful, thorough and exhaustive review of the record we find there were sufficient reasons to support and uphold the trial court's decision. The trial court did not act in an arbitrary or unreasonable manner in denying the Appellant's motion for mistrial or in overruling his objections under this record.
In point of error number two the Appellant asserts that a mistrial should have been given when the prosecutor allegedly made reference to the Appellant's failure to testify. The granting of a mistrial rests solely within the sound discretion of the trial court.
The basis for this point was founded on the statement made by the prosecutor during the closing argument at punishment. The remark in controversy was as follows:
Stay away from that area.
We hold there simply was no error. Only Mr. DeLee and Mr. DeLee's remorse were referred to. We conclude that this reference to DeLee was not a comment on defendant's failure to testify.
The Appellant's argument was that reversible error was committed when the prosecutor's remark referred to Appellant's failure to testify. We disagree. Appellant supports his contention by citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh'g den'd, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh'g den'd, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965); Dickinson v. State, 685 S.W.2d 320 (Tex.Crim.App.1984); Elkins v. State, 647 S.W.2d 663 (Tex.Crim.App.1983); Coyle v. State, 693 S.W.2d 743 (Tex.App.--Dallas 1985, pet. ref'd ). Appellant argues that remark was definitely harmful to Appellant since the jury returned a punishment of 40 years and a $10,000 fine for such a small amount of contraband. Again, we disagree. The evidence justified the verdict of the jury.
On the other hand, the State avers that the trial court was correct in not granting the mistrial when the prosecutor allegedly entered into a prohibited area because the comment was obviously incomplete and it conveyed nothing which alluded directly or indirectly to or manifestly referred to the Appellant's failure to testify....
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