                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00407-CR


TIMOTHY BAKER                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Timothy Baker appeals his conviction and sentence for

aggravated assault on a public servant, and, in a separate motion, he asks us to

appoint him new appellate counsel.      We affirm the judgment and deny the

motion.

      Appellant was serving a sixty-year sentence for aggravated robbery when

he attacked a prison guard and held her hostage with a ―shank‖ he had fashioned

from a padlock. After a brief standoff, other guards overpowered Appellant and
      1
      See Tex. R. App. P. 47.4.
freed the hostage. Appellant was later tried and convicted for aggravated assault

with a deadly weapon on a public servant. After the jury found him guilty, it

assessed his punishment at life in prison. The trial court sentenced Appellant

accordingly.

Leg irons

      In his first issue, Appellant contends that the trial court abused its

discretion by ordering him shackled during trial without a specific finding that the

restraints were necessary.

      Although Appellant asserts that he was shackled for the entire trial, it is

unclear from the record that he was. But even if he was, the record does not

show that he objected to being shackled. The record during voir dire, opening

remarks, and throughout the testimony of the State‘s first two witnesses is silent

on the issue of Appellant‘s wearing leg restraints.

      The first objection Appellant raised concerning his shackles came at the

end of the first day of testimony after the State‘s third witness identified him as

the person ―wearing all blue, white tennis shoes, leg irons.‖ At the mention of the

leg irons, Appellant‘s counsel rose and asked to take a matter up outside the

presence of the jury.    Once the jury was removed, counsel objected ―to the

testimony describing [Appellant] as wearing leg irons,‖ but he did not object to his

client actually having to wear the restraints.        The trial court sustained the

objection, denied the motion for mistrial, and when the jury returned, instructed it

to disregard any testimony subsequent to the witness‘s having identified

Appellant in court.2

      2
       There was some discussion about how to instruct the jury without
highlighting the fact that Appellant was wearing shackles. The record reflects

                                         2
      Appellant moved for mistrial again on the second day of testimony after

one of the jurors saw him in handcuffs on an elevator during a lunch break. At

the bench, the trial court instructed the juror not to consider what she had seen

as any evidence of Appellant‘s guilt, and not to convey what she had seen to the

other jurors. There is no evidence in the record that she failed to comply with

these instructions.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

249, 265 (Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070

(1999).   An objection must be made as soon as the basis for it becomes

apparent or it is untimely. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942 S.W.2d

602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk v. State, 729

S.W.2d 749, 753 (Tex. Crim. App. 1987). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court=s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.


that the witness had pointed to Appellant and stated, ―He‘s sitting to your -- --
your right wearing all blue, white tennis shoes, leg irons, sitting there.‖ The
parties and the trial court agreed that the jury should be instructed to disregard
any testimony given after Appellant was identified. Presumably, in following the
instruction, the jury would have disregarded the verbal description of Appellant
given by the witness and would have considered only that the witness had
pointed to him.


                                        3
2004). Generally, even constitutional errors are forfeited by failure to object at

trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also

Mendez, 138 S.W.3d at 342.

      The record shows that although Appellant‘s counsel objected once to

testimony identifying his client by referring to the fact that he was wearing leg

irons, he did not at any time during the trial object to his client actually having to

wear them. Because Appellant did not raise a timely objection to having to wear

leg restraints during his trial, we hold that he has not preserved the issue for our

review. Tex. R. App. P. 33.1(a)(1); see Mosley, 983 S.W.2d at 265; Curry, 910

S.W.2d at 496; see also Deck v. Missouri, 544 U.S. 622, 625, 125 S. Ct. 2007,

2010 (2005) (where the appellant objected to shackles before, during and after

voir dire); Long v. State, 823 S.W.2d 259, 281–82 (Tex. Crim. App. 1991) (where

the appellant objected to wearing shackles both before and after the jury was

selected), cert. denied, 505 U.S. 1224 (1992).

      Although we have held that Appellant failed to preserve a complaint that

the trial erred by ordering him shackled during trial, he twice moved for a mistrial

on grounds relating to his shackles and each time the trial court denied the

motion. And although Appellant does not frame his issue as a complaint that the

trial court erred by refusing to grant a mistrial, he mentions the refusals in his

brief to support his claim that the trial court abused its discretion by requiring him

to remain shackled throughout the trial. In the interests of justice, therefore, we

will address the denial of Appellant‘s two motions for mistrial.

      Appellant first moved for a mistrial after the trial court sustained his

objection to testimony identifying him by his wearing leg irons and instructed the



                                          4
jury to disregard the testimony. Appellant next moved for a mistrial after the juror

who had seen him in the elevator wearing handcuffs was instructed not to

consider what she had seen as evidence of Appellant‘s guilt and not to report

what she had seen to the other jurors.

        We review a trial court‘s denial of a motion for mistrial under an abuse of

discretion standard and ―must uphold the trial court‘s ruling if it was within the

zone of reasonable disagreement.‖ Archie v. State, 221 S.W.3d 695, 699 (Tex.

Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004);

Orr v. State, 306 S.W.3d 380, 403 (Tex. App.—Fort Worth 2010, no pet.). Only

in extreme circumstances, where the prejudice is incurable, will a mistrial be

required. Archie, 221 S.W.3d at 699; Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004). A mistrial is appropriate only for a narrow class of highly

prejudicial and incurable errors and may be used to end trial proceedings when

the error is ―so prejudicial that expenditure of further time and expense would be

wasteful and futile.‖ Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d

547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000)).

        A trial court must balance three factors in deciding whether to grant a

motion for mistrial (1) the severity of the misconduct (magnitude of the prejudicial

effect); (2) the effectiveness of the curative measures adopted; and (3) the

certainty of conviction absent the misconduct. See Archie, 221 S.W.3d at 700;

Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 at 259; Orr, 306 S.W.3d at

n.11.

        Here, the instances of ―misconduct‖ were (1) a witness‘s testimony

referring to Appellant‘s wearing leg irons and (2) a juror seeing Appellant wearing

handcuffs on an elevator during a lunch break. We agree that neither of these is


                                         5
proper. However, in this instance, neither is severe. Appellant was on trial for

having attacked a prison guard while serving a sixty-year prison sentence for

aggravated robbery. The fact that he was a prison inmate at the time of the

charged offense was thoroughly discussed by Appellant‘s counsel during voir

dire.   It would have come as no surprise to any juror that certain security

measures would be taken given the fact that Appellant was an incarcerated felon

at the time of the incident for which he was standing trial.           Therefore, any

prejudicial effect would have been minimal.

        Regarding   the   second   factor––the   effectiveness    of    any   curative

measures—in each instance for which Appellant sought a mistrial the trial court

issued prompt and appropriate instructions to disregard. And, in the absence of

evidence that they did not, we presume that jurors follow the trial court‘s

instructions. Orr, 306 S.W.3d at 405 (citing Colburn v. State, 966 S.W.2d 511,

520 (Tex. Crim. App. 1998)). Our presumption is refutable, but the appellant

must rebut the presumption by pointing to evidence that the jury failed to follow

the trial court‘s instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

App. 2005); Colburn, 966 S.W.2d at 520. Here, Appellant has directed us to no

evidence that the trial court‘s instructions were disregarded; therefore, we

presume that they were followed.

        Finally, the likelihood that Appellant would have been convicted absent the

misconduct is very high. He admitted on the stand that he had committed each

element of the offense, and in his defense, concocted a nonsensical justification

based upon his alleged mistreatment at the hands of some prison guard other

than the one whom he attacked. The facts of this case provide the reason for

Appellant‘s conviction, not the fact that he may have been tried in leg restraints.


                                         6
      Accordingly, we hold that the trial court acted within its discretion when it

denied Appellant‘s motions for mistrial, and we overrule Appellant‘s first issue.

Pro se or Just a Different Lawyer?

      In his second issue, Appellant contends that the trial court committed

structural error by refusing to allow him to represent himself at trial. Specifically,

he complains that by not allowing him to proceed pro se, the trial court kept him

from presenting his own defense strategy in the manner he wanted to present it.

      The parties correctly agree that in order to invoke his right to represent

himself pro se, a defendant must clearly and unequivocally assert that he wants

to represent himself. See Faretta v. California, 422 U.S. 806, 835–36, 95 S. Ct.

2525, 2541 (1975); United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.), cert.

denied, 479 U.S. 868 (1986); Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim.

App. 1992). They disagree, however, about whether Appellant unequivocally

and timely asserted the right. Appellant contends that he did, whereas the State

contends that he just wanted a different lawyer.

      The record shows the following:

      The indictment for this case was returned on April 19, 2006.

      On April 26, 2006, Appellant was represented by trial counsel Lendon Ray,
      who filed a motion for continuance on August 22, 2006.

      On May 14, 2007, Appellant filed a pro se motion with the trial court asking
      for a new lawyer and declaring that he could not represent himself.

      In a letter filed May 12, 2008, Appellant asked the trial court to ―remove my
      lawyer of record and either allow me to proceed in the above cause ‗pro
      se‘ or to appoint other counsel.‖

      On September 30, 2008, the trial court set a pre-trial hearing on
      Appellant‘s motion to proceed pro se for October 23, 2008.


                                          7
On October 17, 2008, this court received a letter from Appellant in which
he stated, ―I at first asked to represent myself but I read that if I represent
myself I can‘t use ineffective assistance of counsel then on appeal. So I
then asked the 89th district judge to appoint new counsel and Judge Mark
Price has refused to hear anything I have to say.‖ We also received a
letter from Appellant on that date in which he stated, ―I am not a lawyer I
hardly know what I am doing. I‘m sure I‘m not doing this right. But I need
help. . . . I motioned the court to give me another lawyer since the one I
have is not doing his job.‖

On October 23, 2008, the date the trial court had set for a hearing on
Appellant‘s motion to proceed pro se, Appellant withdrew his motion to
proceed pro se.

On November 4, 2008, Appellant filed in the trial court a pro se motion
entitled, ―Motion for Appointment of Effective Counsel,‖ in which he prayed
for the appointment of ―new and effective counsel.‖

On March 18, 2009, Appellant‘s new trial counsel, Kenneth Nash, received
the file. He filed a motion to suppress on June 19, 2009.

On October 6, 2009, at a pre-trial hearing, Appellant complained about the
representation he had received, and stated, ―I would like to representative
[sic] myself.‖ He also stated, ―I‘ve asked the Court to -- -- to -- -- to provide
me with other counsel because State Counsel for Offenders is a -- -- is a
Division of the Texas Department of Criminal Justice.‖ ―There -- -- there‘s a
big conflict of interest here. He works for TDC. I‘m being charged by TDC.
That‘s -- -- that‘s got to be a conflict of interest and I‘ve asked and I came
up here before and I asked you, Judge Price, to -- -- to grant me other
counsel, which you refused.‖ ―I mean, how can you expect me to -- -- to let
this man represent me?‖ At the conclusion of the hearing Appellant asked,
―You over – – so you‘re saying I‘m not allowed to defend myself?‖ The trial
judge instructed Appellant that he was to speak through his attorney.

The case went to a jury, which returned a verdict of guilty and a life
sentence.

On November 20, 2009, Nicolas R. Hughes, appellate counsel for
Appellant, filed a notice of appeal.

On January 6, 2010, on appellate counsel Hughes‘s motion for leave to
withdraw and appoint new counsel, we abated the appeal to the trial court.


                                    8
      At the abatement hearing, conducted on February 4, 2010, the trial court
      determined that Appellant was indigent, wished to prosecute his appeal,
      and did not wish to proceed pro se.

      On February 11, 2010, the trial court substituted Spencer Rowley for
      Nicolas Hughes as Appellant‘s appellate counsel.

      On August 2, 2010, Appellant, complaining of appellate counsel Rowley,
      filed with us a motion to replace Mr. Rowley with another attorney to
      prosecute his appeal.


      Although there are instances in the record of Appellant indicating a desire

to represent himself, upon considering the record in its totality, which included

numerous instances of his requesting new counsel and actually receiving it once

each at trial and on appeal, we cannot say that the record supports a holding

that, if he asserted his right to represent himself, the assertion was clear and

unequivocal. To the contrary, viewing the record as a whole, the theme that

emerges from Appellant‘s complaints is that he was dissatisfied with every lawyer

he was appointed, not that he wanted to represent himself. Consequently, we

cannot say that the trial court erred by requiring Appellant to proceed with his

appointed counsel. Accordingly, we overrule Appellant‘s second issue. For the

same reason, we deny appellant‘s motion for new counsel.

      Having overruled both of Appellant‘s issues, we affirm the trial court‘s

judgment and deny Appellant‘s motion for new counsel.




                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

                                       9
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 16, 2010




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