Affirmed and Memorandum Opinion filed December 17, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00874-CR

                        CHARLES ROBERTS, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1381559

                       MEMORANDUM OPINION

      We consider three issues in this appeal from a conviction for murder:
(1) whether the trial court abused its discretion by admitting evidence of a prior
conviction, (2) whether defense counsel rendered ineffective assistance by failing
to object that appellant was in shackles during the punishment phase of trial, and
(3) whether the trial court reversibly erred when it failed to give a reasonable-doubt
instruction for unadjudicated bad acts. We overrule each issue and affirm the trial
court’s judgment.
                                 BACKGROUND

      The complainant in this case died of a single gunshot wound to the
abdomen. His body was found inside of his vehicle, parked just outside of a
grocery store. The shooter left no physical evidence at the scene, and there were no
eyewitnesses or surveillance footage of the shooting.

      Police came to suspect that appellant may have been involved in the murder.
Text messages revealed that the complainant had gone to the grocery store to sell
appellant two ounces of hydroponic marijuana. Phone records also showed that
appellant was within range of a cell phone tower next to the grocery store at the
time of the shooting.

      Appellant turned himself in to police when he learned that a warrant had
issued for his arrest. Before he was released on bond, appellant encountered a
family acquaintance in jail. The acquaintance wrote a letter to his jailors, claiming
that appellant had confessed to killing a man for two ounces of hydroponic
marijuana.

      At trial, appellant admitted that he had spoken with the acquaintance in jail,
but he denied having made a confession of murder. Appellant further admitted that
he had gone to the grocery store to purchase the hydroponic marijuana, but he
testified that he left without completing the transaction because he did not trust the
complainant. According to appellant, the complainant was not alone like he had
said he would be, and the complainant was in a different vehicle than what he had
previously described.

      The jury rejected appellant’s testimony, convicted him of murder, and
assessed his punishment at fifty years’ imprisonment.



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                              PRIOR CONVICTION

      Before appellant took the stand, the trial court conducted a hearing outside
the presence of the jury to determine if there were any “impeachable priors” at
issue. Appellant stated that, although he had no felonies on his record, he did have
two misdemeanor convictions for assault and another conviction for possession of
marijuana. Because one of the assault convictions involved a family member, the
State argued that it constituted a crime involving moral turpitude.

      Appellant personally explained to the trial court that the assault was just a
fight between him and his father. Appellant’s defense counsel then argued that, to
whatever extent the evidence of the assault conviction was relevant, the trial court
should exclude it because it was more prejudicial than probative. The trial court
determined that the evidence of the assault conviction was admissible, and the
State impeached appellant with that evidence at the end of appellant’s cross-
examination.

      In his first issue, appellant argues that the trial court abused its discretion by
admitting the evidence of his assault conviction. Appellant argues that this
evidence was inadmissible under Rule 609 of the Texas Rules of Evidence because
an assault against a man is not considered a crime involving moral turpitude. The
State responds that this complaint has not been preserved. We agree with the State.

      To preserve a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely objection, stating the grounds for
the ruling sought with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context. See Tex. R.
App. P. 33.1(a). The purpose for requiring a timely, specific objection is twofold:
(1) it informs the judge of the basis of the objection, affording the judge an
opportunity to rule on it; and (2) it gives opposing counsel an opportunity to
                                           3
respond to the complaint. See Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim.
App. 2009). Although we are not hyper-technical in our examination of whether
error was preserved, we do adhere to the general rule that the argument on appeal
must comport with the objection made at trial. See Bekendam v. State, 441 S.W.3d
295, 300 (Tex. Crim. App. 2014).

      Here, the only legal objection asserted at trial was that the evidence of the
assault was more prejudicial than probative. This objection did not put the trial
court on notice of the complaint appellant now asserts on appeal—that the assault
was not a crime involving moral turpitude. We conclude that appellant’s argument
on appeal does not comport with the objection he made at trial, and thus, his
complaint has not been preserved for appellate review. Cf. Douds v. State, No. PD-
0857-14, — S.W.3d —, 2015 WL 5981121, at *4–5 (Tex. Crim. App. Oct. 14,
2015) (defendant’s trial argument that the requirements of a mandatory blood-draw
statute had not been met did not preserve a constitutional complaint on appeal that
the blood draw violated the Fourth Amendment where there was no showing of
exigent circumstances).

                                    SHACKLES

      Appellant took the stand during the punishment phase of trial, wearing
shackles or leg irons. Defense counsel did not object to appellant being in any kind
of restraints. At the end of appellant’s testimony, both sides rested and the jury was
removed from the courtroom. The trial court then put the following comments on
the record:

             All right. I also want the record to reflect that once the—once
      the Defendant was found guilty, it’s the deputy’s policy to put him in
      leg irons. And when he was called to testify here in punishment, he
      got up and his legs [sic] irons started banging around and clanking


                                          4
      when he started walking to the witness stand before I had a chance to
      admonish him or the jury on that.

            So I assume the jury may have seen that he had leg irons, but he
      basically got up and started walking toward the box before I had a
      chance to say anything. So made that kind of issue moot.
      Appellant now argues in his second issue that he received ineffective
assistance of counsel because defense counsel did not object to appellant being in
shackles while in the presence of the jury. We review claims of ineffective
assistance of counsel under the standard set forth in Strickland v. Washington, 466
U.S. 688 (1984). Under Strickland, the defendant must prove that his trial
counsel’s representation was deficient, and that the deficient performance was so
serious that it deprived him of a fair trial. Id. at 687. Counsel’s representation is
deficient if it falls below an objective standard of reasonableness. Id. at 688. A
deficient performance will only deprive the defendant of a fair trial if it prejudices
the defense. Id. at 691–92. To demonstrate prejudice, there must be a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the claim of
ineffectiveness. Id. at 697. This test is applied to claims arising under both the
United States and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 53,
56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that counsel’s actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel’s
strategy, we will not conclude that the defendant received ineffective assistance
unless the challenged conduct was “so outrageous that no competent attorney

                                          5
would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the defendant is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not adequately reflect the
alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of counsel’s performance for examination. See
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Moreover, it is
not sufficient that the defendant show, with the benefit of hindsight, that counsel’s
actions or omissions during trial were merely of questionable competence. See
Mata, 226 S.W.3d at 430. Rather, to establish that counsel’s acts or omissions were
outside the range of professionally competent assistance, the defendant must show
that counsel’s errors were so serious that he was not functioning as counsel. See
Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

      Shackles are “inherently prejudicial” when used conspicuously in front of
the jury. See Holbrook v. Flynn, 475 U.S. 560, 568 (1986). During the guilt phase
of trial, they can undermine the presumption of innocence, interfere with the
defendant’s ability to communicate with his counsel, and affront the dignity and
decorum of the judicial process. See Deck v. Missouri, 544 U.S. 622, 630–31

                                         6
(2005). Related concerns are implicated in the punishment phase as well. Shackles
can threaten the accuracy of reliable decisionmaking, especially in capital cases, by
suggesting to the jury that the defendant is a danger to the community. Id. at 632–
33. Due process accordingly forbids the routine use of shackles that are visible to
the jury, except in “special circumstances,” such as where there are case-specific
security needs or a risk of escape. Id. at 633. Even in such circumstances, the trial
court must make all efforts to prevent the jury from seeing the defendant in
shackles. See Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013).

       Here, the record does not reflect any special circumstances that would justify
the use of shackles. The trial court commented that shackles were employed
pursuant to a “policy” of restraining the defendant once he has been found guilty,
which actually suggests the absence of special circumstances.1

       Assuming for the purposes of argument that there was no reason for
appellant’s compelled restraint, the record does not reflect defense counsel’s
reasons for failing to object to the shackles. Appellant did not move for a new trial,
and defense counsel did not file an affidavit or otherwise explain his tactics or
reasoning.

       The State argues that defense counsel may have willfully chosen to allow
appellant to take the stand in shackles in an effort to elicit the jury’s sympathy and
obtain a more lenient sentence. This explanation would be consistent with the sole
theme of appellant’s statements on direct examination, which was that the jury had
made a mistake and was about to send an innocent man to jail. If that were
counsel’s strategy, it may have been risky, but not objectively unreasonable. Cf.
Estelle v. Williams, 425 U.S. 501, 508 (1976) (“[I]t is not an uncommon defense

       1
         While we question the need for such a “policy,” the trial court must be mindful of its
obligations to ensure that the shackles are not visible to the jury.

                                              7
tactic to produce the defendant in jail clothes in the hope of eliciting sympathy
from the jury.”). On this record, appellant has not overcome the strong
presumption that counsel’s failure to object was consistent with sound trial
strategy. See Goodspeed, 187 S.W.3d at 392 (stating that an appellate court should
not find deficient performance on a silent record unless the challenged conduct was
“so outrageous that no competent attorney would have engaged in it”).

                                CHARGE ERROR

      During the punishment phase, the State elicited testimony of appellant’s
disciplinary records from when he was in jail. The records showed that appellant
had been cited for fighting, disruptive conduct, and threatening another man.
Appellant had explanations for each of these citations. On the fighting charge,
appellant testified that he and another man were “horseplaying,” which he
suggested was nonaggressive. As for the disruptive-conduct charge, appellant
indicated that he misbehaved because some of his food had been taken after a
“shakedown.” And as for the threatening charge, appellant explained that he “had
some words” with another man who “came into the tank thinking he was running
things and changed the TV.”

      The trial court did not give a reasonable-doubt instruction in its punishment
charge as it related to these unadjudicated bad acts. Appellant did not request such
an instruction either. Nevertheless, appellant argues in his third issue that the trial
court reversibly erred by failing to give the instruction sua sponte.

      When deciding whether there is reversible error in a jury charge, we must
first determine whether error exists, and if error does exist, we must then determine
whether the defendant was harmed by the error. See Middleton v. State, 125
S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in this case, the defendant did not
object to the charge at trial, we can only reverse the trial court’s judgment if the
                                           8
defendant was egregiously harmed by the trial court’s error. See Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

      The State concedes that it was error for the trial court to omit the instruction
and we agree. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000)
(holding that no objection or request is required to receive a reasonable-doubt
instruction). However, because appellant did not object to the omission of the
instruction, appellant must show that he was egregiously harmed to be entitled to
relief. The State contends that appellant cannot meet this difficult burden. We
agree here as well.

      Any harm that is inflicted by an erroneous charge must be assayed in light of
the entire jury charge, the evidence as a whole, the arguments of counsel, and any
other relevant information revealed by the record. See Stuhler v. State, 218 S.W.3d
706, 719 (Tex. Crim. App. 2007). An error is egregiously harmful only when it
affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory. Id. This is a difficult standard to prove and such a
determination must be done on a case-by-case basis. See Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996).

      The Entire Jury Charge. In this case, the punishment charge did not
specifically address the unadjudicated bad acts or the burden of proof that must be
met before the bad acts could be considered. However, the charge generally
informed the jury that “[t]he burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to the defendant.” We conclude that this
factor is neutral in our assessment of egregious harm. See Martinez v. State, 313
S.W.3d 358, 367 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (examining a
punishment charge with identical language).



                                           9
       The Evidence as a Whole. The evidence against appellant was largely
circumstantial, but the circumstantial evidence was also strong. Phone records
established that appellant arranged a meeting with the complainant to purchase two
ounces of hydroponic marijuana. The records also established that appellant was
near the scene of the crime when the complainant was shot. After his body was
found, there were no drugs on the complainant’s person, but inside of his car,
police discovered the lid to the mason jar that had stored the hydroponic marijuana.

       According to a family acquaintance, appellant admitted when he was in jail
that he had killed the complainant for the hydroponic marijuana. At trial, appellant
tried to discredit the acquaintance by suggesting that the acquaintance could have
read about the murder in an online newspaper article. However, there was no
evidence that the acquaintance had seen the article, and in his letter to the jailors,
the acquaintance specifically mentioned that appellant had shot the complainant
over marijuana of the hydroponic variety, a detail that had not been mentioned in
the article.

       As for his prior convictions, appellant admitted during the guilt phase that he
had been convicted of misdemeanor assault, and during the punishment phase, the
State introduced evidence of appellant’s misdemeanor possession conviction. No
reasonable-doubt instruction was required as to these extraneous offenses because
they had already been proven in another proceeding. See Bluitt v. State, 137
S.W.3d 51, 54 (Tex. Crim. App. 2004).

       Also during the punishment phase, the State elicited testimony about
appellant’s disciplinary record in jail, which was composed of certain
unadjudicated bad acts. As mentioned above, appellant admitted to having some
level of involvement in each of the bad acts, which weighs against any suggestion
that the jury would have disregarded the bad acts had a reasonable-doubt

                                          10
instruction been provided. Considering further the seriousness of the murder
charge and the strength of the evidence in support of the murder conviction, the
evidence of the unadjudicated bad acts does not make the case for punishment
clearly more persuasive. See Martinez, 313 S.W.3d at 368.

      The Arguments of Counsel. In its closing statements, the State made no
reference to appellant’s prior bad acts, whether they were adjudicated or
unadjudicated. Defense counsel, on the other hand, acknowledged that appellant
had “a record of some misconduct,” but counsel said that the record was “not
egregious.” Because neither side emphasized appellant’s prior bad acts, this factor
weighs against a finding of egregious harm.

      Other Relevant Information. We may consider the severity of the
punishment assessed, which may indicate egregious harm in some situations. Id.
Here, appellant was sentenced to fifty years’ imprisonment, which is in the
midrange for a felony of the first degree. See Tex. Penal Code § 12.32. This
sentence is slightly higher than the minimum sentence that was advocated by the
State, which was forty-five years, but it is also lower than the sentence that the
State specifically requested, which was sixty years. Appellant did not argue for a
specific term of years. This factor does not weigh greatly in favor of finding
egregious harm.

      Having considered all of the factors together, we conclude that appellant was
not egregiously harmed by the trial court’s failure to sua sponte give a reasonable-
doubt instruction on the matter of appellant’s unadjudicated bad acts.




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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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