                                     In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                               NO. 09-17-00062-CR
                             ____________________

                    JEREMY PIERRE SPENCER, Appellant

                                        V.

                          THE STATE OF TEXAS, Appellee

________________________________________________________________________

                    On Appeal from the 252nd District Court
                           Jefferson County, Texas
                          Trial Cause No. 15-22350
________________________________________________________________________

                            MEMORANDUM OPINION

      In two issues, Jeremy Pierre Spencer appeals his conviction for aggravated

assault and claims the trial court erred by excluding him from the courtroom during

significant portions of his trial and by having him shackled in the presence of the

jury while in the courtroom. We overrule both of Spencer’s issues and affirm the

trial court’s judgment.




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                                   I. Background

      Spencer was indicted and convicted for the aggravated assault of his mother-

in-law after he stabbed her several times, causing her serious bodily injury.

Spencer’s then-wife also testified Spencer stabbed her during the same incident.

Throughout the trial, Spencer repeatedly interrupted the proceedings by speaking out

and by refusing to follow the trial court’s instructions. These outbursts eventually

led to his removal from the courtroom during parts of the trial and being placed in

handcuffs while he was in the courtroom.

      Before beginning voir dire, Spencer’s trial counsel elicited assistance from the

trial court to have Spencer sign the election for the jury to assess punishment if he

was found guilty. When the trial court instructed Spencer to sign the election form,

he refused and asserted his innocence. Even after the trial court further explained

signing the election did not serve as an admission of his guilt, Spencer continued to

argue, maintaining his innocence. During voir dire, Spencer interrupted the

proceedings to go to the bathroom and was insistent on going at that time. The trial

judge allowed him to go even though he was disruptive and argued with the court.

Later in the voir dire proceedings, Spencer disrupted the trial again to apologize for

his outburst and requesting to go to the bathroom, and the trial court assured him it

was fine. We can discern from the record that Spencer was out of the courtroom for

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only a few minutes during the restroom break and he was present for the selection

of the jury panel and when they took the oath. The second day of trial, Spencer

entered his plea of not guilty after the indictment was presented and read. Spencer

remained in the courtroom and the trial proceeded without incident.

      On the third day of trial, as soon as the jury entered the courtroom, Spencer

spoke out without permission. Even though the bailiff and trial court sought to quiet

Spencer, he stated he wanted to address the court. The trial court instructed him he

would not be able to address the court at that time and must remain quiet. Regardless

of this instruction, Spencer continued to make outbursts. The trial court then ordered

him to take a seat. Rather than doing so, Spencer continued talking, and the trial

court instructed that he be removed from the courtroom. While being removed,

Spencer stated, “I can’t talk. They tell me to be quiet before y’all come in. See, how

can I have a fair trial? This is—it’s—it’s war behind closed doors, you see.” The

trial court explained on the record that Spencer would be placed in a holding cell

with speakers to allow him to hear the trial proceedings unless he was unable to calm

down and conduct himself appropriately in court.

      After a brief break, Spencer was brought into the courtroom following a

conference with the trial court and his counsel. The trial court explained outside the

presence of the jury that Spencer “had to be taken out of the courtroom by the bailiff

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forcibly. And his attorney [has] talked to him. I’ve gone to the back. We’ve talked.

Mr. Spencer [is] back in the courtroom. He assures me he’s going to follow the

rules.” (Emphasis added.) When the trial court asked Spencer to confirm he will

adhere to the rules, he responded, “Yes, ma’am.” The trial court continued and

pointed out the following for the record,

      We do have, however, based on what went on and what the bailiff feels
      is most appropriate, Mr. Spencer is in handcuffs, and we’re going to
      leave him in handcuffs. That’s for everyone’s safety, including his own
      and based on his own actions in front of the jury and when he refused
      to follow the rules before.

As the trial court prepared to proceed, Spencer interrupted again, but his counsel

talked over him, objecting to “him being in handcuffs and restrained in front of the

jury.” The trial court noted his objection but overruled it.

      Again, the trial court instructed Spencer not to speak out in the courtroom but

to let his attorney know if he had something to say. Yet Spencer continued to address

the trial court, at one time requesting medical attention. The trial court instructed

Spencer to stop talking and that the court would place a call to request proper medical

attention be given to Spencer at the jail. Because of this outburst, the trial court

explained to Spencer that if he continued speaking without permission, he would be

removed from the courtroom and placed into the holding cell where he could listen

to his trial on speakers. The trial court stated it “will not allow [him] to interrupt

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myself, the attorneys[,] or anyone at any point from this point forward.” When asked

if Spencer understood, he affirmed.

      Soon thereafter, while Spencer’s ex-wife was testifying, Spencer spoke to the

witness, telling her she knew that he was not trying to kill her. The bailiff and the

trial court sought to quiet Spencer, but he refused and continued speaking and

cursing. The trial court once again ordered his removal. While being removed, he

continued cursing and telling the witness to tell the truth. The trial court stated on

the record Spencer would be placed in a holding cell for the remainder of the trial

and could listen to the proceedings from inside the cell.

      After the State rested, the trial court instructed Spencer’s defense counsel that

if Spencer testified in his defense, he would have to do so under the rules or he would

be removed from the stand. While outside the presence of the jury and prior to

Spencer testifying, the trial court carefully instructed Spencer as to the behavior the

court expected of him during his testimony and warned him that he would again be

removed from the courtroom if he became disruptive. Although Spencer argued with

the trial court, claiming the rules were “driving [him] crazy[,]” he finally agreed to

follow the rules.

      Even with the trial court’s repeated admonishment to follow the rules, only to

answer the questions he was asked and to avoid the use of profanity, Spencer

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persisted in his inappropriate and disruptive behavior. After Spencer continued to

vocalize about matters not relevant to his trial and addressed the trial judge by name

rather than as judge, the trial court again ordered his removal. As the bailiff removed

him, the record reflects that the bailiff told Spencer, “Don’t put your arm around

me[,]” to which Spencer responded, “I’m not doing anything. Y’all beating the s---

outta me.”

      After his removal from the courtroom for the third time during the trial, the

trial court informed the State and defense counsel that Spencer would not be

permitted back into the courtroom for the remainder of the trial. The trial court noted

that based on its discussion with the bailiff, both the trial court and the bailiff were

of the opinion that Spencer posed “a danger to either himself or others if he’s allowed

to remain in the courtroom” and so “based on his actions here in the courtroom today,

and for everyone’s safety, including his own,” he would remain in the holding cell

where he could hear the remainder of the trial through the speakers. The trial

continued. Following closing arguments and deliberations, Spencer returned to the

courtroom for the reading of the verdict.

      Spencer remained in the holding cell where he could hear the proceedings

during the punishment phase of his trial. Spencer was present in the courtroom when




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the trial court read the punishment recommended by the jury and pronounced the

sentence.

                      II. Applicable Law and its Application

      The United States Supreme Court has held “[t]he flagrant disregard in the

courtroom of elementary standards of proper conduct should not and cannot be

tolerated.” Illinois v. Allen, 397 U.S. 337, 343 (1970). When “confronted with

disruptive, contumacious, stubbornly defiant defendants[,]” trial judges “must be

given sufficient discretion to meet the circumstances of each case.” Id.

A. The trial court did not abuse its discretion when it removed Spencer from
the courtroom for portions of his trial.

      In Spencer’s first issue, he asserts the trial court abused its discretion when it

excluded him from the courtroom during significant portions of his trial. According

to Spencer, this action by the trial court violated his right to be present during trial.

      Both the Confrontation Clause and the Texas Code of Criminal Procedure

provide the right for a defendant to be present in the courtroom at every stage of

trial. See id. at 338; see also U.S. CONST. amend. VI; Tex. Const. art. I, § 10; Tex.

Code Crim. Proc. Ann. art. 33.03 (West 2006). Even so, a criminal defendant may

lose his right to be present during trial if, after being warned by the trial judge that

he will be removed if he continues his disruptive behavior, he continues to conduct

himself “‘in a manner so disorderly, disruptive, and disrespectful of the court that
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his trial cannot be carried on with him in the courtroom.’” Kessel v. State, 161

S.W.3d 40, 45 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d) (quoting Allen,

397 U.S. at 343). Trial judges have discretion to address stubbornly disruptive

defendants, and that discretion includes removal from the courtroom when the

defendant’s behavior is of “‘an extreme and aggravated nature.’” Id. (quoting Allen,

397 U.S. at 346). We review a trial court’s decision to remove a defendant from the

courtroom for an abuse of discretion. See id. at 44.

      Spencer was ordered by the trial court to be removed from the courtroom three

separate times during his trial. Each time, the record shows the trial court repeatedly

admonished Spencer of the rules he was required to follow to avoid being removed.

Despite those instructions and several warnings to adhere to the court’s rules,

Spencer continued his outbursts and seemingly threatening behavior. The trial court

stated on the record that his absence was for his safety as much as the safety of

everyone else present in the courtroom.

      Faced with Spencer’s continued disruptions of the proceedings after repeated

warnings from the trial court, we conclude the trial court did not abuse its discretion

when it removed Spencer from the courtroom. See Allen, 397 U.S. at 346 (finding

nothing unconstitutional about removing defendant from courtroom after “he was

repeatedly warned by the trial judge that he would be removed from the courtroom

                                          8
if he persisted in his unruly conduct”); George v. State, 446 S.W.3d 490, 502 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (concluding trial court did not violate

defendant’s constitutional and statutory rights to be present when, after repeated

warnings, it had defendant removed from courtroom for disruptive behavior);

Ramirez v. State, 76 S.W.3d 121, 130 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d) (“As the trial court lacked reason to believe appellant’s misbehavior would

cease, appellant’s expulsion was not constitutionally improper.”). We overrule

Spencer’s first issue.

B. The trial court did not abuse its discretion by placing handcuffs on Spencer
in the presence of the jury during portions of his trial.

      Spencer contends in his second issue the trial court committed reversible error

by shackling him—in this case, placing him in handcuffs—in the presence of the

jury during significant portions of his trial. Spencer argues his placement in

handcuffs in front of the jury violated his due process rights and right to a fair trial.

      We review a trial court’s decision to restrain a defendant in shackles for an

abuse of discretion. See Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013).

Shackles are inherently prejudicial and should only be used “‘as a last resort.’” Id.

(quoting Deck v. Missouri, 544 U.S. 622, 628 (2005)). All reasonable efforts should

be made to prevent the jury from seeing the defendant shackled, unless there has

been a showing of exceptional circumstances or a manifest need for restraint, such
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as when a defendant poses a threat to himself or others. Id. at 281–82; Yglesias v.

State, 252 S.W.3d 773, 777 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d);

Davis v. State, 195 S.W.3d 311, 315 (Tex. App.—Houston [14th Dist.] 2006, no

pet.); accord Deck, 544 U.S. at 628 (recognizing other interests include “physical

security, escape prevention, or courtroom decorum”). The need for restraints must

be assessed on a case-by-case basis. Yglesias, 252 S.W.3d at 777; Davis, 195

S.W.3d at 315. A trial court abuses its discretion when it requires a defendant to be

shackled during trial without first finding a reason for shackling specific to the

defendant. Yglesias, 252 S.W.3d at 777; Davis, 195 S.W.3d at 316.

      Here, the trial court assessed the need for restraints for this specific defendant.

The trial court did not merely express generalized safety concerns. Cf. Bell, 415

S.W.3d at 283 (holding trial court erred where no particularized finding articulating

reason for shackling defendant, only “a generalized concern for courtroom security”

and no justifiable reasons clear from record). Instead, the trial court specifically

referenced his prior outbursts and noted Spencer had to be forcibly removed from

the courtroom. The trial court held that based on his actions, the handcuffs were

necessary not only for the safety of everyone in the courtroom but for Spencer

himself. The record also reflects Spencer refused to follow the trial court’s repeated

verbal instructions and admonishments throughout the trial.

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       Thus, we conclude the record establishes Spencer was disruptive and abusive

towards others, specifically the trial judge and courtroom staff, and had to be forcibly

removed from the courtroom more than once. The record reflects that the trial court

assessed the security risk with the bailiff before making the decision to shackle

Spencer when he was in the courtroom. On the facts before us, we cannot say the

trial judge abused her discretion by ordering Spencer to be placed in handcuffs. See

Powell v. State, 304 S.W.3d 630, 638 (Tex. App.—Beaumont 2010, pet. ref’d)

(holding that the defendant’s in-court and out-of-court misbehavior supported the

judge’s decision to use shackles); Molina v. State, 971 S.W.2d 676, 682 (Tex.

App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that the judge did not abuse

his discretion by shackling the defendant during voir dire because of his outbursts).

Spencer’s second issue is overruled.

       Having overruled both of Spencer’s issues on appeal, we affirm the judgment

of the trial court.

       AFFIRMED.

                                                      _________________________
                                                           CHARLES KREGER
                                                                Justice
Submitted on June 5, 2018
Opinion Delivered November 28, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.
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