                                                                 FILED IN
                           NO. 01-14-00822                  st
                                                           1 COURT OF APPEALS
                                                               HOUSTON, TX
                                                               February 2, 2015
                  In The Court Of Appeals Of Texas      CHRISTOPHER A. PRINE,
                               For The                         CLERK
               First Supreme Judicial District Of Texas
_____________________________________________________________

                             NO.1404673

             IN THE 177th JUDICIAL DISTRICT COURT

                    OF HARRIS COUNTY, TEXAS

           The Honorable Ryan Kelley Goeb Patrick, presiding

____________________________________________________________

Weylin Alford
                       Appellant

VS

THE STATE OF TEXAS
                     Appellee
____________________________________________________________

                APPELLANT’S ANDERS BRIEF
____________________________________________________________

                                   GLENN J. YOUNGBLOOD
                                   Appellant's Attorney
                                   5555 West Loop South, Ste. 395
                                   (713) 432-1013
                                   (713) 432-1013 FAX
                                   SBOT # 22217400
                                   glenlaw@comcast.net



                ORAL ARGUMENT NOT REQUESTED
                  TABLE OF CONTENTS
LIST OF AUTHORITIES .............................................................................. 3

STATEMENT OF CASE ............................................................................... 4

STATEMENT OF FACTS ............................................................................. 6

  STATE'S WITNESSES ...................................................................................... 6

Victor Ramirez, Harris County Sheriff's Office Deputy ................................ 6

Cheryl Roberson ............................................................................................. 8

Audra Shannon................................................................................................ 9

  DEFENSE WITNESSES .................................................................................. 13

SUMMARY .................................................................................................. 13

ISSUES PRESENTED ................................................................................. 14

  ISSUE NUMBER 1 ......................................................................................... 14

Argument and Authority ............................................................................... 14

  ISSUE NUMBER 2 ......................................................................................... 22

Argument and Authority ............................................................................... 22

  ISSUE NUMBER 3 ......................................................................................... 22

Argument and Authority ............................................................................... 23

CONCLUSION ............................................................................................. 26




                                                Page 2 of 27
LIST OF AUTHORITIES
CASES

Anders v. California, 386 US 738,744, 18 LEd.2d 493, 87 S Ct 1396 (1967 ...............................................13
Barras v. State, 902 S.W.2d 178,(Tex.App.--El Paso 1995, pet. ref'd) .........................................................15
Calcarone v. State, 675 S.W.2d 785 (Tex.App.--Houston [14th Dist.] 1984, no pet.) ..................................16
Cedillos v. State, 250 S.W.3d 145 (Tex.App.-Eastland 2008).......................................................................25
Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. App. 1974); .........................................................................13
Deck v. Missouri, 544 U.S. 622, (2005) ..................................................................................................23, 24
Faretta v. California, 422 U.S. 806 (1975) ..................................................................................14, 15,16, 20
Fernandez v. State, 564 SW2d 771 (Tex. Crim. App. 1978) .......................................................................... 6
Ford v. State, 870 S.W.2d 155,(Tex.App.--San Antonio 1993, pet. ref'd) ....................................................15
Hardee v. Kuhlman, 581 F.2d 330 (CA2 1978).............................................................................................26
High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978). .............................................................................13
Hobbs v. State, 778 S.W.2d 185, (Tex.App.--Beaumont 1985, no pet.).......................................................15
Holbrook v. Flynn, 475 U.S. 560 (1986) .......................................................................................................26
Illinois v. Allen, 397 U.S. 337 (1970) ......................................................................................................20, 24
Johnson v. State, 760 S.W.2d 277 (Tex.Crim.App. 1988). ...........................................................................16
Johnson v. Zerbst, 304 U.S. 458 ....................................................................................................................15
Jordan v. State, 571 S.W.2d 883 (Tex.Crim.App. 1978). .............................................................................15
Logan v. State, 690 S.W.2d 311, (Tex.App.--Dallas 1985, pet. ref'd) ...........................................................16
Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)..........................................................................23, 25
Manley v. State, 23 S.W.3d 172, 173 (Tex.App.--Waco 2000, pet. ref'd) .....................................................15
Nixon v. State, 572 SW2d 699 (Tex. Crim. App. 1978) ................................................................................ 6
U.S. v. Burch, 48 F.3d 1233 (10th Cir. 1995) ..............................................................................................26
United States v. Long, 597 F.3d 720 (5th Cir. 2010) .....................................................................................20

CONSTITUTIONAL PROVISIONS

Tex. Const. art. 1 § 10 ............................................................................................................................21, 22
U.S. Const. amend. 6th ............................................................................................................................21, 22
U.S. Const Amnd 14th.............................................................................................................................21, 22




                                                                  Page 3 of 27
STATEMENT OF CASE

      The Appellant, Weylin Alford was indicted on January 9, 2014 by a

Harris County Grand Jury on a charge of Burglary of a Habitation, a Second

degree felony alleged to have occurred on October 12, 2013. Said indictment

further alleged that the Appellant had been twice previously convicted of the

felony of Possession of a Controlled Substance in Cause Number 3022258

in the 147th District Court of Travis County, Texas on April 7, 2003 and

Possession of a Controlled Substance in Cause Number 1289552 in the

185th District Court of Harris County, Texas on January 4, 2014 for

enhancement purposes. The latter prior conviction was found to be a State

Jail Felony inappropriate for enhancement purposes and was not included in

the evidence presented nor was the jury informed of that conviction.

      At the pre-trial hearing on September 9, 2014 The Defendant advised

the Court that he wanted to represent himself at trial. He was admonished by

the Court that if that was his decision there would have to be another hearing

to consider his request for self representation. The court further advised

appellant that the Case was set for trial on October 3, 2014 and would not be

continued to give appellant additional time, nor would it be continued at the

request of any new lawyer appellant may hire. [Reporter's Record Vol. 2].




                                 Page 4 of 27
      On September 19, 2014 the Court conducted a hearing in accordance

with Faretta v. California, 422 U.S.806, 835 (1975) [Reporter's Record Vol.

3]. See also The Court's Order granting Appellant's request to represent

himself at trial at [Clerk's Record , Pg.112].

      Upon Appellant’s plea of not guilty the case was tried before a jury on

October 2, 2014. The jury found the Appellant guilty as charged.

      On the morning before the commencement of the punishment phase of

the trial, while in the hold over area outside the courtroom, the Appellant

was found to have concealed, among other things a hand made stabbing

instrument commonly referred to as a "shank". After a brief discussion the

Court revoked Appellant's pro se status and appointed standby counsel to

proceed.

      After hearing the evidence and argument during the punishment phase

of the trial the Jury sentenced Appellant to 30 years years confinement in the

Institutional Division of the Texas Department of Criminal Justice.

      Appellant gave timely and proper Notice of Appeal on October 6,

2014 and the Trial Court Certified Appellant's right to appeal.




                                   Page 5 of 27
STATEMENT OF FACTS
        As must be done in accordance Fernandez v. State, 564 SW2d

771 (Tex. Crim. App. 1978) and Nixon v. State, 572 SW2d 699 (Tex. Crim.

App. 1978), viewed in the light most favorable to the verdict, the record

reflects the following:



State's Witnesses

Victor Ramirez, Harris County Sheriff's Office Deputy

      Deputy Ramirez Testified that he responded to a call initially thought

to be an Aggravated Assault at 942 Fruitvale, Houston, Tx. Upon arrival he

met with the witness and home owner Cheryl Roberson and the Complainant

Audra Shannon. Deputy Ramirez stated that he further learned that the case

was a Burglary of a Habitation with intent to commit an assault. He also

determined that the suspect had broken into the house and assaulted the

Complainant. Entry into the house was gained by throwing a five gallon

paint can through the front window. Deputy Ramirez took photos of the

broken window, the paint can and the injuries sustained by the Complainant.

the photos were admitted without objection as State's Exhibits 2, 3, 4, 5, 6, 7,

8, 9 and 10. [Reporter's Record, Vol. 5, Pg. 16 - 18]. Deputy Ramirez further

testified that after he spoke to Ms Roberson and the Complainant he

searched the general area to locate the suspect and found him at a Dollar

                                  Page 6 of 27
Store. The Appellant was taken into custody. [Reporter's Record, Vol. 5, Pg

20, 21].

      Deputy Ramirez was shown State's Exhibit 11 which he identified as

the medical report of the North East Medical Center. Having been on file 14

days prior to trial, the State offered State's Exhibit 11 and it was admitted

without objection.    [Reporter's Record, Vol. 5, Pg. 22-23]. The State

requested and was granted permission to orally publish State's Exhibit 11 to

the jury:


      MR. GILLIAM: State's Exhibit No. 11 are medical records from the

      Houston Northwest Medical Center. The notes indicate that the patient

      states that she was assaulted by a fist, that she had injuries to her head

      and face. The diagram on the records indicate a contusion to her face

      and possibly to her neck.

            Included in these records are records from the Harris County

      Emergency Corps. The records state that the medic was dispatched to

      a possible assault and upon arrival to the scene the complainant was

      noted to be sitting upright outside sitting in a chair saying that she was

      beaten up by her boyfriend. The boyfriend came over to talk and she

      did not let him. He broke the window and assaulted the patient. She

      states that she was hit with his fist and denies him using anything

                                  Page 7 of 27
      other than a fist. She states she is having neck pain and that her head

      hurts. [Reporter's Record, Vol. 5, Pg. 23-24].


Cheryl Roberson

      Ms. Roberson testified that she knew Appellant from work at Wal-

Mart where she was employed as a cook in the deli department and he was

thought to be a stocker. She also met the Complainant, Appellant's

girlfriend, who she knew as Shay. This witness made an in-court

identification of the Appellant. Ms Roberson went on to testify that she had

known the Complainant and Appellant a short time; approximately two

weeks. [Reporter's Record, Vol. 5, Pg. 37, 38].

      Ms Roberson further testified that the Complainant began to live with

her for about 4 or 5 days at her residence at 914 Fruitvale, Houston, Harris

County, Texas, when the alleged incident occurred. The Complainant began

to live with Ms Roberson because she was told by Appellant that she had no

place to go. The Complainant moved in bringing her belongings with her

and was allowed to sleep on a couch. [Reporter's Record, Vol. 5, Pg 38 - 39].

      The witness went on to state that on October 12, 2013 while the

Complainant was living with her they came in contact with the Appellant.

She described how Appellant first knocked on the door and asked for Shay.

When Appellant was told Shay wouldn't come in there because she was

                                 Page 8 of 27
scared, he said "I'm going to count to ten." At that time Appellant did not

have permission to enter the home. When I shut the door he got the paint can

and hit it through the window and went in and beat her up. [Reporter's

Record, Vol. 5, Pg. 40 - 43].

      When the window was broken Ms Roberson, her three grandkids ages

5, 6 and 8 as well as the Complainant were in the living room. Ms Roberson

told appellant to get out of her house. The appellant walked to the

Complainant and beat her up; he kicked her, hit her in the face. The beating

lasted for 15 minutes according to the witness. Ms Roberson kept telling him

to "Get out of my house." [Reporter's Record, Vol. 5, Pg. 45 -47].

      When Appellant left leaving blood all over her floor, Ms Roberson

and her next-door neighbor went to find him and found him by the General

Dollar Store. She knew where to look because the busses do not run late on

weekends so she decided to look near the General Dollar Store where he was

probably trying to get back on the bus. When they saw the Appellant she

called the police. When they arrived she told the Deputy what had happened.

[Reporter's Record, Vol. 5, Pg. 47 - 50].


Audra Shannon

      Ms Shannon testified that she is also known by her nickname Shay

and that the Appellant was her ex-boyfriend who she identified in court. She

                                  Page 9 of 27
said that she and the Appellant dated for about six to nine months after

meeting at a homeless shelter downtown called the Bread of Life. They

were still dating on October 12, 2013. They were not living together on

October 12, 2013 and she was living with Cheryl Roberson. The

Complainant was uncertain of the length of time she was living with Ms

Roberson and expressed the time as one to two weeks. [Reporter's Record,

Vol. 5, Pg 60 - 63]

       Complainant testified that she had a conversation with Appellant on

the morning of October 12, 2013. She stated:

       "I received a call from the Defendant. He was extremely upset

       because prior to that morning we had made an agreement since he

       was too busy and couldn't obtain his work badge -- his nametag

       before he left his job, his co-worker had given it to me to give to him.

       But before I could give it to him, he had already gotten on the bus

       and went to do other things.

       So I took the name badge home with me, and we had agreed that the

       morning in question we were supposed to meet so that he could take

       his name badge and go to work."


      She went on to explain that she did not agree to allow him to come

over to get his badge:

                                 Page 10 of 27
      "Because the conversation that we had the time he called me and we

      were in the conversation he was already upset and told me forget

      it, that he was just going to call off -- call in and call off of work and

      not to worry about it. The whole time that we were on the phone in

      conversation he was telling me that he was on his way to work,

      which really his initial intentions and his ending goal was he was on

      his way to the residence where I was living at."


      She explained that the initial lengthy conversation ended when he said

he had to call someone and he would call back. The second conversation

was short and ended right before he arrived at the house. During the second

conversation he was calling her a "B" and a "H" and accused her of turning

against him; that she was letting people get into her head and he wanted her

to gather her belongings and leave with him immediately. She learned

Appellant was at the residence when he unexpectedly knocked on the door .

[Reporter's Record, Vol. 5, Pg 64 - 67].

      Complainant explained that she, Ms Roberson and Ms Roberson's

three grandchildren were in the room when Appellant knocked on the door

and wanted her to come out. She refused to go out to meet Appellant

because she didn't trust him. She said that she had seen him mad before; that

he had serious anger and aggression issues so she was not going to put

                                 Page 11 of 27
herself in a position for him to do bodily harm to her. Appellant was given

his name badge and was asked to leave the residence. [Reporter's Record,

Vol. 5, Pg. 68 - 69].

       Complainant continued stating that she heard Appellant say "you got

to the count of three or I'm coming in." All of a sudden they heard a crash

and Appellant came charging around the corner with a look she had never

seen before. There was no emotion, no expression. She described it as "…

what you would consider a stone cold killer if you watch movies." Appellant

came at her quickly giving her no time to react and started pounding on her

with his fists knocking her to the floor continuing to hit her head and face

seven or eight times before kicking her in her back her butt check and head. .

[Reporter's Record, Vol. 5, Pg 69 - 71].

       While she was being beaten Ms Roberson and her grandchildren were

in the room. The oldest grandchild was curled up in a fetal position under the

coffee table right next to where Complainant was laying while being beaten.

Complainant also estimated she was beaten over a 15 to 20 minute period.

Appellant stopped beating her, got up, took one step and turned around and

took her wallet and cell phone and left. [Reporter's Record, Vol. 5, Pg 71 -

72].




                                 Page 12 of 27
       Complainant identified herself in State's Exhibit 5 showing bruises

and contusions resulting from the beating she received at the hands of the

Appellant, Weylin Alford. [Reporter's Record, Vol. 5, Pg. 76].



Defense Witnesses

       The pro se Appellant produced no evidence in his defense. No

witnesses were called by the Defense, nor did the Appellant take the witness

stand to testify in his own defense. He simply rested and closed.[Reporter's

Record, Vol. 5., Pg 85-85].



Summary
   This Brief is prepared pursuant to the requirements for frivolous

appeals as set forth in Anders v. California, 386 US 738,744, 18 LEd.2d

493, 87 S Ct. 1396 (1967); Currie v. State, 516 SW 2d 684, 685 (Tex. Cr.

App. 1974); and High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978).

       Appellate counsel sets forth three issue dealing with the Court's

revocation of the appellant's right to self representation under Federal and

State law; ordering the Appellant shackled during the punishment phase of

the trial.




                                Page 13 of 27
Issues Presented

Issue Number 1

APPELLANT WAS DEPRIEVED OF HIS CONSITIUTIONAL RIGHT

TO REPRESENT HIMSELF DURING THE PUNISHMENT PHASE OF

THE TRIAL IN VIOLATION OF THE U.S. Const. amend. 6TH AND

14TH.

Argument and Authority

      "The Sixth and Fourteenth Amendments of our Constitution guarantee

that a person brought to trial in any state or federal court must be afforded

the right to the assistance of counsel before he can be validly convicted and

punished by imprisonment. This clear constitutional rule has emerged from a

series of cases decided here over the last 50 years. The question before us

now is whether a defendant in a state criminal trial has a constitutional right

to proceed without counsel when he voluntarily and intelligently elects to do

so. Stated another way, the question is whether a State may constitutionally

hale a person into its criminal courts and there force a lawyer upon him,

even when he insists that he wants to conduct his own defense. It is not an

easy question, but we have concluded that a State may not constitutionally

do so." Faretta v. California, 422 U.S. 806 (1975). "Although the right to

self-representation is absolute, a waiver of the right to counsel will not be



                                 Page 14 of 27
lightly inferred, and the courts will indulge every reasonable presumption

against the validity of such a waiver." Manley v. State, 23 S.W.3d 172, 173

(Tex.App.--Waco 2000, pet. ref'd)(internal quotations omitted); see Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 1023, 82 L.Ed. 1461 (1938),

and Jordan v. State, 571 S.W.2d 883, 884 (Tex.Crim.App. 1978).

      "The defendant, and not his lawyer or the State, will bear the personal

consequences of a conviction. It is the defendant, therefore, who must be

free personally to decide whether in his particular case counsel is to his

advantage. And although he may conduct his own defense ultimately to his

own detriment, his choice must be honored out of 'that respect for the

individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337,

350 -351 (BRENNAN, J., concurring)", Faretta v. California 422 U.S. 806.

      If the record indicates a clear expression of the defendant's desire to

proceed pro se, accompanied by careful and thorough admonishments from

the trial court, the reviewing court should conclude that sufficient evidence

exists to support allowing for waiver of counsel. See Barras v. State, 902

S.W.2d 178, 180-81 (Tex.App.--El Paso 1995, pet. ref'd); Ford v. State, 870

S.W.2d 155, 158 (Tex.App.--San Antonio 1993, pet. ref'd); Hobbs v. State,

778 S.W.2d 185, 186-87 (Tex.App.--Beaumont 1985, no pet.); Logan v.

State, 690 S.W.2d 311, 313-14 (Tex.App.--Dallas 1985, pet. ref'd). Although



                                 Page 15 of 27
there has been no exact line of questioning set out to establish a knowing

and intelligent waiver of the right to counsel, the trial court should at least

inquire into the accused's age, background, education and experiences, in

addition to making the accused aware of the advantages and disadvantages

of self-representation. Calcarone v. State, 675 S.W.2d 785, 786 (Tex.App.--

Houston [14th Dist.] 1984, no pet.). Moreover, the court should make the

accused aware of the general nature of the offense charged, aware that the

accused must comply with the rules of evidence and criminal procedure, and

aware that the accused will receive no special consideration by the court. Id.

All of these admonishments should be sufficiently reflected within the

record to enable the appellate court to make an accurate assessment of the

decision of the accused. Johnson v. State, 760 S.W.2d 277, 279

(Tex.Crim.App. 1988). See also Faretta v. California, 422 U.S. 806 (1975).

      The trial court conducted a Faretta Hearing and complied with all of

the above making the record in this case indicate a clear expression of the

Appellant's desire to proceed pro se. Accordingly, the trial court granted

Appellant his right to proceed pro se. [Reporter's Record, Vol. 3, Pg 5-33;

Clerk's Record 112].




                                 Page 16 of 27
      While the jury was deliberating the Appellant's guilt or innocence on

the morning of October 2, 2014, the court addressed the Appellant out of

their presence:


THE COURT:
     Have a seat, Mr. Alford.

             All right. Mr. Alford, it's my understanding that when you were

       brought up this morning Deputy Ojeda, who is one of my regular

       court bailiffs, found on you what appears to be some pills, a piece of

       wire, about a, I would say, 5 to 6-inch homemade jail shank, in

       addition to some other torn clothing that was used to secure it to your

       leg and other things like that.

             In addition, speaking with Deputy Ojeda, he told me that your

       statement to him is that you've had it on you all of your court

       settings, which was -- I don't know if that's true because I know,

       according to Deputy Ojeda, he personally searches you when he --

       when you've been on our docket, but you also stated that you had it

       on you yesterday.

             Based on that statement, sir, you have now forfeited your right

       to represent yourself. You are now in the courtroom as a regular

       defendant.



                                  Page 17 of 27
     You now have your leg shackles on you.

          Mr. Alford, I'll get to you in a moment.

          You now have leg shackles on you. The leg shackles, you need

     to be careful that the jury does not hear them while you move around;

     but Mr. Aguirre is now your attorney.

          If you would like to take this issue up on appeal, you're

     welcome to do so. But at this time you are considered a very high

     risk and a very high threat to the safety of the people in this

     courtroom. I am not going to tolerate any outbursts from you, any

     movements that are not necessary or anything else.

          Do I make myself explicitly clear, Mr. Alford?



THE DEFENDANT: Yes, sir.



THE COURT:



          In addition, the ERT deputies will be in here. Whatever they

     feel is appropriate for the level of security now that they feel is

     necessary to protect everyone in this courtroom, including Mr.

     Aguirre, who was sitting next to you yesterday.



                              Page 18 of 27
               So have a seat, sir. We have some read back. Mr. Aguirre has

       gone over that with you.



THE DEFENDANT: May I --



THE COURT:



               No, you may not. You are now represented by Mr. Aguirre. If

       you have any questions, you may address them through him. Have a

       seat.

               Let's bring in the jury, please.


[Reporter's Record, Vol. 6, Pg 6 - 8].

      Subsequently, a portion to the testimony of Ms. Roberson was read to

the jury in response to their question, The jury retired and returned with a

verdict of guilty. The trial continued to the punishment phase. Appellant

made no further request or assertion of his right to self representation neither

personally or through his attorney.

      Courts had been told that many criminal defendants representing

themselves may use the courtroom for deliberate disruption of their trials.

But the right of self-representation has been recognized from our beginnings

                                    Page 19 of 27
by federal law and by most of the States, including The State of Texas, and

no such result has thereby occurred. Moreover, the trial judge may terminate

self-representation by a defendant who deliberately engages in serious and

obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337 Faretta v.

California 422 U.S. 806 (1975)         Of course, a State may - even over

objection by the accused - appoint a "standby counsel" to aid the accused if

and when the accused requests help, and to be available to represent the

accused in the event that termination of the defendant's self-representation is

necessary. See Faretta v. California 422 U.S. 806 (1975).

      In United States v. Long, 597 F.3d 720 (5th Cir. 2010 No negative

treatment in subsequent cases) in discussing the waiver of the right of self

representation said, " [A] defendant can waive his Faretta rights, either by

expressly requesting standby counsel's participation on a matter or by

acquiescing in certain types of participation by counsel, even if the

defendant insists that he is not waiving his Faretta rights .... [O]nce a pro se

defendant invites or agrees to any substantial participation by counsel,

subsequent appearances by counsel must be presumed to be with the

defendant's acquiescence, at least until the defendant expressly and

unambiguously renews his request that standby counsel be silenced ....




                                  Page 20 of 27
[S]tandby counsel's participation [must] be ‘ over the defendant's objection’

in order to erode the defendant's Faretta rights."

      In the case at bar the court terminated the Appellant's right of self

representation based on the discovery of a "shank" on the person of the

Appellant. This discovery was made while the Appellant was in the custody

of the Harris County Sheriff's Office in the holdover cell and not in the

courtroom. The weapon was taken from the Appellant and represented no

threat to anyone in the courtroom. During the entire trial proceedings

appellant was respectful to the court and his conduct was normal, reserved

and appropriate to the circumstances in the courtroom. His conduct was not

obstructionist in any manner. His conduct in the courtroom did not rise to

the level of deliberately engaging in serious and obstructionist misconduct

authorizing termination of Appellant's constitutional right to self

representation under the U.S. Const. amend. 6th and 14th, and Tex. Const.

art. 1 § 10.

      However, Appellant placed himself inside the courtroom with the

shank based on his alleged statement to Deputy Ojeda that he, Appellant,

"…had it on him yesterday…" thereby raising his conduct to the level of

deliberately engaging in serious and obstructionist misconduct authorizing

termination of Appellant's constitutional right to self representation.



                                  Page 21 of 27
Appellant's right of self representation under the U.S. Const. amend. 6th and

14th, and Tex. Const. art. 1 § 10 were waived.



Issue Number 2

APPELLANT WAS DEPRIEVED OF HIS CONSITIUTIONAL RIGHT

TO REPRESENT HIMSELF DURING THE PUNISHMENT PHASE OF

THE TRIAL IN VIOLATION OF THE Tex. Const. art. 1 § 10.


Argument and Authority

      The foregoing argument and authority presented above in the

Argument and Authority for Issue Number 1 is incorporated herein with

particular attention to the Texas case law cited.




Issue Number 3

APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE U.S.

CONST. AMEND. 5TH AND 14TH WERE VIOLATED WHEN THE

TRIAL COURT ORDERED HIM TO BE SHACKLED IN FRONT OF

THE JURY DURING THE PUNISHMENT PHASE.




                                  Page 22 of 27
Argument and Authority
      The United States Supreme Court has held that the appearance of a

defendant in shackles before a jury during a trial can violate the defendant's

Fifth and Fourteenth Amendment rights to due process. Deck v. Missouri,

544 U.S. 622, 629–34 (2005). The Court reasoned that "visible shackling

undermines the presumption of innocence and related fairness of the

factfinding process[, ] . . . can interfere with the accused's        ability to

communicate with his lawyer" and "participate in his own defense, " and

"affronts the dignity and decorum of judicial proceedings that the judge is

seeking to uphold." Id. at 630–31.

      '[A]ll efforts should be maintained to prevent the jury from seeing the

defendant in shackles, except where there has been a showing of exceptional

circumstances or a manifest need for such restraint.' Long v. State, 823

S.W.2d 259, 282 (Tex. Crim. App. 1991). It is within the discretion of the

trial judge as to whether a defendant shall be tried in handcuffs or shackles,

and the trial court's decision is reviewed for abuse of that discretion. Id.

(noting that "the record must clearly and affirmatively reflect the trial judge's

reasons therefor").

      Courts have recognized a narrow exception to this rule if a trial court

determines that there is a particular need for shackling the defendant, such as


                                  Page 23 of 27
a demonstrated propensity to attempt escape or assault others in the

courtroom. Id. (citing Deck, 544 U.S. 622, 627, 632 (2005), Long v State,

823 S.W.2d 259, 282. The trial court’s determination is reviewed under an

abuse of discretion standard. Long, 823 S.W.2d at 282.

A trial judge confronted by a defendant's disruptive conduct can exercise

discretion to meet the circumstances of the case, and though no single

formula is best for all situations, there are at least three constitutionally

permissible approaches for the court's handling of an obstreperous

defendant: (1) bind and gag him as a last resort, thereby keeping him

present; (2) cite him for criminal or civil contempt; or (3) remove him from

the courtroom, while the trial continues, until he promises to conduct himself

properly. Illinois v. Allen, 397 U.S. 337 (1970).

      The Fifth and Fourteenth Amendments of the United States

Constitution prohibit the use of physical restraints visible to the jury unless

the trial court in its discretion finds that they are justified by an essential

State's interest such as physical security, escape prevention, or courtroom

decorum. Deck v. Missouri, 544 U.S. 622, 628, 125 S.Ct. 2007, 161 L.Ed.2d

953 (2005) . Courts have held that some circumstances justify the use of

restraints during trial, including situations where an accused expressed his

intention to escape, made threats of physical violence, resisted being brought



                                  Page 24 of 27
to court, repeatedly interrupted the court proceedings, attempted to leave the

courtroom, or engaged in other egregious conduct. Cedillos v. State, 250

S.W.3d 145 (Tex.App.-Eastland 2008) .

      When an appellant complains of the use of shackles, it is first

determined if the trial court abused its discretion by allowing appellant to be

shackled. If so,it must then be determine whether appellant suffered harm as

a result. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App.1991) .

      In the case at bar, Court choose to employ the first of the Illinois v

Allen options; to bind and gag him as a last resort, thereby keeping him

present in the court room. The court choose not to gag Appellant. The court

also utilized the services of the ERT deputies as a security precaution.

[Reporter's Record, Vol. 6, Pg 6 - 8].

      The chief feature that distinguishes the use of identifiable security

officers from courtroom practices that might be found inherently prejudicial

is the wider range of inferences that a juror might reasonably draw from the

officers' presence. While shackling and prison clothes are unmistakable

indications of the need to separate a defendant from the community at large,

the presence of guards at a defendant's trial need not be interpreted as a sign

that he is particularly dangerous or culpable. Jurors may just as easily

believe that the officers are there to guard against disruptions emanating



                                 Page 25 of 27
from outside the courtroom, or to ensure that tense courtroom exchanges do

not erupt into violence. Indeed, it is entirely possible that jurors will not infer

anything at all from the presence of the guards. If they are placed at some

distance from the accused, security officers may well be perceived more as

elements of an impressive drama than as reminders of the defendant's special

status. Our society has become inured to the presence of armed guards in

most public places; they are doubtless taken for granted so long as their

numbers or weaponry do not suggest particular official concern or alarm.

See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978). U.S. v. Burch, 48

F.3d 1233 (10th Cir. 1995 No negative treatment in subsequent cases). See

also Holbrook v. Flynn, 475 U.S. 560, 106 (1986), Deck v Missouri, 544

U.S. 622, 658-659 .

      By his own statement to Deputy Ojeda Appellent admitted that he had

had the shank on him in court the previous day. The court was then

authorized to employ the extra ordinary use of shackles and the ERT

deputies for increased security and protection of all those in the court room.

There was no violation of Appellant's constitutional rights.



CONCLUSION
   Based of the undersigned attorney’s review of the record in this case,

including the many misguided rambling motions filed by the appellant, legal

                                   Page 26 of 27
research conducted by said attorney and the arguments presented

hereinabove, the appeal filed in this cause is wholly lacking in meritorious

issues and is frivolous.

                                      Respectfully submitted


                                      _________________________
                                      Glenn J. Youngblood
                                      Attorney at Law
                                      5555 West Loop South, Ste. 395
                                      Bellaire, Texas 77401
                                      (713) 432-1013 [Voice/FAX]
                                      SBOT 22217400
                                      glenlaw@att.net




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