Opinion filed August 13, 2009




                                              In The


   Eleventh Court of Appeals
                                          ____________

                                    No. 11-08-00140-CR
                                        __________

                        JEFFERY EUGENE KEITH, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 385th District Court

                                     Midland County, Texas

                                Trial Court Cause No. CR31910


                                          OPINION

        The jury convicted Jeffery Eugene Keith of murder and arson, and it assessed his punishment
at confinement for life for each offense. We affirm.
                                       I. Background Facts
        Keith was indicted for murdering his mother, Carolyn Keith, and then attempting to cover
up the murder by setting fire to her house. Keith does not challenge the sufficiency of the evidence
to support these convictions and, therefore, the facts of the crimes will not be summarized. Instead,
Keith complains of two procedural rulings.
        Keith’s counsel filed a motion to have him examined by an expert witness to determine his
competency to stand trial. The trial court appointed a medical doctor to evaluate Keith. Following
a competency hearing, the trial court found that Keith was incompetent to stand trial and committed
him to a mental health facility. Keith stayed in the facility for approximately one and one-half years.
Personnel in the facility informed the trial court that Keith was now competent to stand trial, and the
trial court entered an order restoring his competency.
        Prior to trial, Keith objected to being publicly shackled during trial, and the trial court
conducted an evidentiary hearing. The trial court overruled Keith’s objection, and he was visibly
restrained during trial with handcuffs, a belly chain, and leg shackles. At trial, Keith objected to the
State’s exercise of peremptory challenges on four African-American veniremembers. The trial court
denied Keith’s motion, and the trial proceeded. The jury found Keith guilty of murder and arson,
found that two enhancement paragraphs were true, and assessed his punishment at confinement for
life for each offense.
                                               II. Issues
        Keith challenges his conviction with two issues, contending that he was deprived of a fair
trial because of the use of visible restraints and that the State improperly struck two African-
American veniremembers.
                                        III. Visible Restraints
        Keith argues that the trial court erred by denying his objection to the use of visible restraints
because the presumption of innocence was unduly compromised. The decision to use physical
restraints must be made by the trial court on a case-by-case basis, and the use of such restraints will
necessitate reversal only where the decision constitutes an abuse of discretion and results in harm.
Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992). The test for abuse of discretion is
whether the trial court’s decision was outside the zone of reasonable disagreement. Landers v. State,
256 S.W.3d 295, 303 (Tex. Crim. App. 2008); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.
App. 2005).
        Physically restraining or shackling a defendant in front of the jury infringes upon the
constitutional presumption of innocence. Deck v. Missouri, 544 U.S. 622, 630-31 (2005). To avoid
compromising this right, a trial court may only shackle a defendant in exceptional circumstances,


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and it must clearly and affirmatively detail those circumstances. Long v. State, 823 S.W.2d 259, 282
(Tex. Crim. App. 1991). Examples of exceptional circumstances warranting shackling include
situations in which the accused has a history of escape, expressed an intent to escape, threatened
physical violence, assaulted persons in the courtroom, and repeatedly interrupted court proceedings.
Gammage v. State, 630 S.W.2d 309, 313-14 (Tex. App.—San Antonio 1982, pet. ref’d). Trial courts
must proceed with great caution whenever the exceptional circumstances are based on conduct
occurring outside the courtroom. Id. at 315.
       The trial court made several findings in support of its ruling. The court found that Keith had
previously assaulted two deputy sheriffs, had kicked the windows out of a jail van, had been
convicted of retaliation for threatening two peace officers, had been convicted of unlawfully carrying
a weapon on licensed premises, had been convicted of aggravated assault, and had been involved in
fights with other inmates over card games while incarcerated awaiting trial. The trial court also
found that the other inmates were afraid to turn their back to Keith, that jail personnel had preempted
further violence while awaiting trial by maintaining Keith in a high risk to super max classification
and by bribing him to take his medication with extra food, that Keith was six-foot-six to six-foot-
seven and weighed approximately 300 pounds, that it took multiple officers to subdue Keith when
he became violent, and that pressure points were ineffective on him. The trial court expressed
concern over the possibility of a violent outburst in light of Keith’s unstable mental history and the
upsetting photographic evidence of his murdered mother.
       Keith does not challenge the factual sufficiency of any of these findings but asserts that they
are insufficient to justify the use of physical restraints. Keith argues that physical restraints are
appropriate only as a last resort and notes that much of the conduct upon which the trial court relied
occurred years before trial. Keith observes, for example, that the assaults on the two deputy sheriffs
and kicking the window out of a jail van occurred in the mid-90s, that the aggravated assault
conviction occurred in 1999, and that the unlawfully carrying a weapon conviction occurred in 2002.
Keith also argues that a higher standard is applicable when the questioned conduct occurs outside
the courtroom and points out that there was no evidence of violent behavior in the courtroom.
Finally, Keith suggests less drastic security measures, such as a stun belt, should have been
considered.


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        The trial court did not abuse its discretion. While some of Keith’s conduct occurred years
before trial, it was part of a pattern of behavior that continued through his detention awaiting trial.
The trial court also had considerable evidence of Keith’s mental or emotional issues, knew that this
could be an emotional trial, and knew the extraordinary measures the sheriff’s office was using to
keep Keith medicated and to prevent him from injuring others. There was no evidence that Midland
County had a stun belt or other form of restraint sufficient to control Keith. The trial court did
consider a leg brace, but the county did not have one that fit Keith. Finally, we note that the trial
court took steps to limit the prejudicial effect of Keith’s physical restraints. Keith was not required
to stand, and he was given the choice to be seated before the jury panel entered the room to prevent
calling attention to the restraints. Issue One is overruled.
                                        IV. Batson Challenge
        Keith objected to the State’s use of four peremptory strikes on African-American
veniremembers pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and TEX . CODE CRIM . PROC.
ANN . art. 35.261 (Vernon 2006). The State provided reasons for its strikes, including the fact that
two listed their religious affiliation as Pentecostal. Keith objected, contending that “religious
affiliation is [not] a good race neutral reason.” The trial court denied Keith’s Batson challenges.
Keith contends on appeal that the trial court erred as to the two Pentecostal veniremembers because
the State failed to offer a racially neutral reason.
        When reviewing a Batson challenge, the record is examined in the light most favorable to
the trial court’s ruling. See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). The trial
court’s ruling will only be reversed when it is clearly erroneous. See Esteves v. State, 849 S.W.2d
822, 823 (Tex. Crim. App. 1993). A ruling is clearly erroneous when, after searching the record, we
are left with the “definite and firm conviction that a mistake has been committed.” Hill v. State, 827
S.W.2d 860, 865 (Tex. Crim. App. 1992).
        In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three-step process
for properly determining a Batson challenge. First, the opponent of a peremptory challenge must
make out a prima facie case of racial discrimination, essentially a burden of production. In the
second step, the burden of production shifts to the proponent of the strike to respond with a race-
neutral explanation. Third, if a race-neutral explanation has been proffered, the trial court must


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decide whether the opponent of the strike has proved purposeful racial discrimination. The burden
of persuasion is on the opponent of the strike to convince the trial court that the strike was racially
motivated. Id. at 767-68.
          Keith’s challenge focuses on the second step of this analysis. Keith does not contend that
the State’s reasons were pretextual, and the record indicates that the State struck all Pentecostal
veniremembers, including one non-African-American. Nor is Keith trying to expand Batson’s scope
in the traditional sense by arguing that religious affiliation should receive the same protection as
racial identity. His argument is not predicated upon his own religious affiliation, and he makes no
complaint of the strike exercised on the non-African-American Pentecostal veniremember. Instead,
Keith’s position is that religious affiliation is not a racially neutral reason and, therefore, that the
State did not satisfy its burden of production with regard to the two African-American Pentecostal
veniremembers.
          The Texas Court of Criminal Appeals has held that the use of religious affiliation is a
permissible basis to strike a veniremember. Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App.
1995). Keith acknowledges this, but maintains that an emerging consensus exists for the proposition
that exercising peremptory challenges based solely upon religious affiliation is unconstitutional.1
Rather, Keith suggests, the State must rely upon a veniremember’s religious beliefs, and he contends
that Casarez supports this conclusion because the prosecutor in that case argued that he struck the
Pentecostal veniremembers due to his experience with them having trouble passing judgment on
others.
          We do not have the prerogative to overturn or modify Casarez. Moreover, we do not believe
that this case squarely presents the issue Keith advances because the State did not rely entirely upon
the veniremembers’ religious affiliation. One of the two was familiar with a potential defense
witness, and the State indicated that it was concerned about her temperament. This individual listed
herself as the person she admired most and the “devil, devil, devil” as the person she admired the
least. The second was Keith’s former coach. There is no claim that these are not racially neutral


   1
     Keith cites decisions such as Highler v. State, 834 N.E.2d 182, 196 (Ind. Ct. App. 2005), aff’d in part, 854 N.E.2d 283 (Ind.
2006); State v. Fuller, 862 A.2d 1130 (N.J. 2004); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003); State v. Purcell, 18
P.3d 113 (Ariz. Ct. App. 2001, review denied); United States v. Stafford, 136 F.3d 1109 (7th Cir. 1998); and United States v.
Somerstein, 959 F. Supp. 592 (E.D. N.Y. 1997), in support of this contention.

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reasons. Because they would justify the use of a peremptory strike, even if the veniremembers’
religious affiliation is not a racially neutral reason, no harm is shown.
       Keith alternatively argues that the use of religious preference violates the equal rights and
religious freedom provisions of the Texas Constitution. TEX . CONST . art. I, §§ 3a, 4. This issue was
not raised below and, therefore, is not properly before us. But even if it were, because the State had
racially neutral reasons in addition to the veniremembers’ religious affiliation, no harm is shown.
Issue Two is overruled.
                                            V. Holding
       The judgment of the trial court is affirmed.




                                                               RICK STRANGE
                                                               JUSTICE


August 13, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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