Affirmed and Opinion filed March 17, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00952-CR

                     WILLIAM RAY PARKER, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 10th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CR2532

                                  OPINION

      Appellant William Ray Parker pleaded guilty to murdering his ex-girlfriend,
Angela Lopez. A jury assessed punishment at 99 years’ confinement. Appellant
challenges his sentence in three issues, contending that (1) he received ineffective
assistance of counsel; (2) the sentence was “contrary to the law and the evidence”;
and (3) the trial court abused its discretion in denying a mistrial because spectators
wore purple clothes. We affirm.
                     I.     INEFFECTIVE ASSISTANCE CLAIM

      In his first issue, appellant contends he received ineffective assistance of
counsel because his trial attorney did not request the appointment of a defense
mental health expert and because counsel failed to investigate appellant’s history
of mental illness and alcoholism.     First, we review the general standards for
ineffective assistance. Then we review some of the evidence from appellant’s trial
and the hearing on appellant’s motion for new trial. Ultimately, we hold that
appellant has not proven ineffective assistance.

A.    Standard of Review and Principles of Law

      To prevail on an ineffective assistance claim, an appellant must show that
(1) trial counsel’s performance was deficient in that it fell below an objective
standard of reasonableness; and (2) counsel’s deficiency caused the appellant
prejudice—there is a probability sufficient to undermine confidence in the outcome
that but for counsel’s errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v.
State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). An appellant must satisfy
both prongs by a preponderance of the evidence; failure to demonstrate either
deficient performance or prejudice will defeat a claim of ineffectiveness. Perez,
310 S.W.3d at 893.

      When an appellant asserts ineffective assistance of counsel in a motion for
new trial, as here, we review the trial court’s denial of the motion for an abuse of
discretion. Washington v. State, 417 S.W.3d 713, 724–25 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d). We view the evidence in the light most favorable to
the trial court’s ruling, and we reverse only if no reasonable view of the record
could support the trial court’s finding. Okonkwo v. State, 398 S.W.3d 689, 694
(Tex. Crim. App. 2013); Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—
                                          2
Houston [14th Dist.] 2010, no pet.). We review de novo the trial court’s decision
on the prejudice prong while giving deference to the trial court’s implied resolution
of underlying factual determinations. Washington, 417 S.W.3d at 725.

B.    Evidence from Trial and New Trial Hearing

      Appellant pleaded guilty to murdering his ex-girlfriend, Lopez, and the jury
assessed punishment. Appellant’s trial counsel attempted to mitigate appellant’s
culpability by showing that appellant was a depressed alcoholic after his
relationship with Lopez ended. Appellant’s friend Nicole testified at trial that she
was concerned about appellant’s drinking and worried about him. She described
an incident with appellant where he was drinking and crying all night a few weeks
before he murdered Lopez: “He was very extremely intoxicated, frantic, crying,
upset, you know, just babbling.” Appellant said he was going to kill himself.
Appellant’s ex-wife testified at trial that appellant had been depressed after their
divorce. Appellant’s life-long friend Frank testified about how two of their close
friends committed suicide, and after that, appellant became distant and very
emotional; it was “real traumatic” for appellant. Before the murder, appellant was
becoming more distant and not like himself. Frank thought appellant was going to
kill himself, and “the drinking just really got out of hand.” Clinical psychologist
Dr. Jennifer Rockett testified that symptoms of depression include sadness and
suicidal ideation and that people suffering from depression may use drugs and
alcohol for self-medication.

      Officer Jennifer Beaver testified at trial that someone reported to police that
appellant was suicidal on the day of the murder.        Detective Aaron Griswold
testified that appellant had a blood alcohol level of .25 at the time of the murder,
and from the officer’s investigation, “it was very apparent that [appellant] was very
much an alcoholic and consumed quite a bit of alcohol almost on a daily basis.”

                                         3
       The only two witnesses to testify at the new trial hearing were appellant and
his trial counsel, Jeremy Ducote. Ducote testified that he knew appellant had gone
through periods of depression, but there was no documented history of clinical
depression or medications that appellant took for depression, and there was no
formal diagnosis of clinical depression. Ducote filed a motion for an insanity and
competency evaluation, requesting the trial court appoint Dr. Victor Scarano, a
forensic psychiatrist, to evaluate appellant under Articles 46C.101 and 46C.107 of
the Texas Code of Criminal Procedure. 1 The trial court granted the motion and
appointed Dr. Scarano to evaluate appellant and prepare a written report.2 Ducote
testified that Dr. Scarano was “not really . . . an expert for either side” and that he
was an impartial advisor to the court.

       According to Ducote, Dr. Scarano believed that appellant was not insane at
the time of the murder because appellant demonstrated premeditation and
awareness that his conduct was criminal. Ducote did not believe it would be
beneficial to have Dr. Scarano testify. Ducote testified that his trial strategy was to
present appellant’s history of depression and alcoholism through friends and
family rather than through a psychiatric expert who would not have known
appellant very well and would be viewed as biased by the jury. Further, the State
could have called Dr. Scarano as a rebuttal witness. Ducote testified that he
discussed the possibility of hiring an expert with appellant and his family members



       1
         See Tex. Code Crim. Proc. Ann. art. 46C.101 (a court may, on the defendant’s motion,
appoint a disinterested expert to evaluate the defendant); id. art. 46C.107 (“If a defendant wishes
to be examined by an expert of the defendant’s own choice, the court on timely request shall
provide the examiner with reasonable opportunity to examine the defendant.”).
       2
        Appellant’s “motion for examination regarding insanity” requesting the appointment of
Dr. Scarano and the trial court’s order appointing Dr. Scarano are in the clerk’s record. Dr.
Scarano’s report is not in the record.

                                                4
insanity defense was not available. There is no suggestion that Dr. Scarano’s
report documented a history of mental illness as occurred with the defendant in
Woods. Ducote testified that he relied on Dr. Scarano’s opinions in deciding, at
appellant’s direction, to not postpone trial and request the appointment of a mental
health expert. Accordingly, the record supports the trial court’s implied finding
that Ducote’s conduct was the result of a reasonable trial strategy. Appellant has
not demonstrated deficient performance related to Ducote’s failure to request a
mental health expert or further investigate appellant’s depression and alcoholism.

      To evaluate prejudice in the context of a failure to investigate or present
mitigating evidence, this court must “‘reweigh the evidence in aggravation against
the totality of available mitigating evidence.’” Washington, 417 S.W.3d at 728
(quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). We must “compare the
evidence presented by the State with the evidence the jury did not hear due to
counsel’s failure to investigate.” Id. at 725 (quotation omitted). However, at the
new trial hearing, appellant did not introduce any medical records or expert
testimony that were available and would have benefitted appellant. See, e.g., King
v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel’s failure to call
witnesses at the guilt-innocence and punishment stages is irrelevant absent a
showing that such witnesses were available and appellant would benefit from their
testimony.”).

      Under these circumstances, appellant has not demonstrated prejudice as a
result of Ducote’s failure to request appointment of a second medical expert or to
further investigate appellant’s depression and alcoholism. See Washington, 417
S.W.3d at 725 (no prejudice for not requesting appointment of an investigator,
testimonial expert, or consulting expert when there was no evidence of what a
proper investigation would have revealed or what benefit would have been

                                         7
trial strategy to present appellant’s history of depression and alcoholism through
close friends and family rather than a biased medical expert. There is a strong
presumption that Ducote’s conduct falls within the wide range of reasonable
professional assistance, and appellant has not rebutted this presumption. See, e.g.,
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland,
466 U.S. at 689). Further, as the fact finder, the trial court was entitled to believe
that Ducote investigated and learned of appellant’s history of depression and
alcoholism, and therefore, Ducote did not fail to investigate mitigation evidence.
See, e.g., Okonkwo, 398 S.W.3d at 694.

      Appellant relies on Woods v. State, in which the Texarkana Court of Appeals
held that counsel was ineffective for not requesting the appointment of a second
mental health expert to assist the defense and review the accuracy of an earlier
mental health report that was favorable to the State. See 59 S.W.3d 833, 837–38
(Tex. App.—Texarkana 2001), rev’d on other grounds, 108 S.W.3d 314 (Tex.
Crim. App. 2003). In Woods, counsel was made aware of the defendant’s history
of abuse and serious mental illness, which included many commitments to mental
institutions and his hearing voices and experiencing hallucinations. Id. at 838.
The court distinguished its earlier Easley decision, in which the court had held the
record was inadequate to demonstrate a history of mental illness sufficient to
require counsel to request the appointment of a mental health expert. See id. at 837
n.2 (citing Easley v. State, 978 S.W.2d 244, 250–51 (Tex. App.—Texarkana 1998,
pet. ref’d)). In particular, the Easley court reasoned that the first expert’s report
may have influenced counsel’s decision to not request the appointment of a second
expert. See 978 S.W.2d at 250–51.

      Here, as in Easley, Dr. Scarano’s report is not in the record. And, Ducote
testified that Dr. Scarano believed appellant acted with premeditation and an

                                          6
insanity defense was not available. There is no suggestion that Dr. Scarano’s
report documented a history of mental illness as occurred with the defendant in
Woods. Ducote testified that he relied on Dr. Scarano’s opinions in deciding, at
appellant’s direction, to not postpone trial and request the appointment of a mental
health expert. Accordingly, the record supports the trial court’s implied finding
that Ducote’s conduct was the result of a reasonable trial strategy. Appellant has
not demonstrated deficient performance related to Ducote’s failure to request a
mental health expert or further investigate appellant’s depression and alcoholism.

      To evaluate prejudice in the context of a failure to investigate or present
mitigating evidence, this court must “‘reweigh the evidence in aggravation against
the totality of available mitigating evidence.’” Washington, 417 S.W.3d at 728
(quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). We must “compare the
evidence presented by the State with the evidence the jury did not hear due to
counsel’s failure to investigate.” Id. at 725 (quotation omitted). However, at the
new trial hearing, appellant did not introduce any medical records or expert
testimony that were available and would have benefitted appellant. See, e.g., King
v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel’s failure to call
witnesses at the guilt-innocence and punishment stages is irrelevant absent a
showing that such witnesses were available and appellant would benefit from their
testimony.”).

      Under these circumstances, appellant has not demonstrated prejudice as a
result of Ducote’s failure to request appointment of a second medical expert or to
further investigate appellant’s depression and alcoholism. See Washington, 417
S.W.3d at 725 (no prejudice for not requesting appointment of an investigator,
testimonial expert, or consulting expert when there was no evidence of what a
proper investigation would have revealed or what benefit would have been

                                         7
obtained from an expert); Brown v. State, 334 S.W.3d 789, 803 (Tex. App.—Tyler
2010, pet. ref’d) (“[T]he failure to request the appointment of an expert witness is
not ineffective assistance in the absence of a showing that the expert would have
testified in a manner that benefitted the defendant.”); Cate v. State, 124 S.W.3d
922, 927 (Tex. App.—Amarillo 2004, pet. ref’d) (same).

      The only new evidence appellant presented at sentencing through his own
testimony—that his family members had been alcoholics and he took Vicodin in
the past—likely would not have had an effect on appellant’s punishment. See Ex
parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006) (although new
mitigating evidence was “strong,” it would not have “tipped the scale in applicant’s
favor” because “the jury was privy to some of the severe abuse applicant suffered
during his childhood”). The jury was privy to a great deal of testimony about
appellant’s depression and alcoholism, as recited above. Accordingly, the new
evidence did not “differ in a substantial way—in strength and subject matter—
from the evidence actually presented at sentencing.” Id.

      Appellant failed to prove ineffective assistance by a preponderance of the
evidence, and the trial court did not abuse its discretion by denying appellant’s
motion for new trial. Appellant’s first issue is overruled.

               II.    SUFFICIENCY OF EVIDENCE FOR PUNISHMENT

      In his second issue, appellant contends the trial court abused its discretion by
denying his motion for new trial because the jury’s verdict on punishment was
“contrary to the law and the evidence,” citing Rule 21.3(h) of the Texas Rules of
Appellate Procedure. See Tex. R. Civ. P. 21.3(h). Appellant contends this rule
provides for a sufficiency review of his sentence, and “the mitigating and
aggravating evidence at trial was insufficient to support the punishment of 99
years.” The State contends that no such review is available in this court because
                                          8
appellant’s sentence fell within the prescribed range and appellant has not raised an
Eighth Amendment gross-disproportionality claim. We agree with the State.

       The Court of Criminal Appeals has “frequently observed that the task of
setting a particular length of confinement within the prescribed range of
punishment is essentially a normative judgment.” Ex parte Chavez, 213 S.W.3d
320, 323 (Tex. Crim. App. 2006) (quotation omitted).                Indeed, the court has
“described the sentencer’s discretion to impose any punishment within the
prescribed range to be essentially unfettered.” Id. (quotation omitted). “Subject
only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth
Amendment gross-disproportionality review, a punishment that falls within the
legislatively prescribed range, and that is based upon the sentencer’s informed
normative judgment, is unassailable on appeal.” Id. at 323–24 (footnote omitted).
Thus, a sentence that is within the legislatively prescribed range, based upon the
sentencer’s informed normative judgment, and in accordance with due process of
law “is not subject to a sufficiency of the evidence review on appeal.” Jarvis v.
State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 2010, no pet.). 4

       Appellant’s sentence of 99 years’ imprisonment for murder falls within the
legislatively prescribed range. See Tex. Penal Code Ann. §§ 12.32(a), 19.02(c).
The jury heard from over twenty-five witnesses during a punishment phase that
lasted four days.     Thus, the sentence was based on their informed normative
judgment. Appellant has not alleged an Eighth Amendment violation, and we
address his due process argument below. Accordingly, we do not review the
sufficiency of the evidence to support his sentence.

       Appellant’s second issue is overruled.

       4
         Appellant points to no appellate decision that includes a sufficiency of the evidence
review for a sentence within the legislatively prescribed range, and we find none.

                                              9
was too sparse to establish that there was an unacceptable risk of impermissible
factors affecting the jury or a reasonable probability that the conduct interfered
with the jury’s verdict. Id. at 117–18. The court noted, however, that there “might
be some basis for appellant’s argument” if the record had indicated “some overt
conduct or expression, or perhaps a higher ratio of police officers, or even perhaps
some indication that the law-enforcement contingency gravitated toward the jury.”
Id. at 118. The court did not intend to “give carte blanche approval to police
officer-spectators in a courtroom,” but in this case, “their presence did not
overwhelm the composition of the spectator gallery.” Id. at 118 n.14.

       Here, the record indicates that there were sixty to seventy spectators wearing
purple,13 but there is no indication that there was overt conduct by the spectators or
that they gravitated toward the jury. The record also does not establish the ratio of
spectators with purple dress to those not wearing purple. Thus, even more so than
in Howard, the record is too sparse to conclude that appellant suffered inherent
prejudice based on spectators’ wearing the color purple.14

       Something else distinguishes this case from those involving police officer
uniforms, express written messages, and pictures of the victim: the color purple
does not convey an obvious message. Although the State acknowledged, outside
the jury’s presence, that purple was the color of domestic violence awareness,
nothing in the record indicates the jury was aware of that fact or that the spectators
were wearing purple in support of Lopez. This case, therefore, is most similar to
In re Woods, where the Supreme Court of Washington held that the courtroom
       13
          See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) (“This Court accepts as
true factual assertions made by counsel which are not disputed by opposing counsel.”).
       14
          We note also that appellant’s claim on appeal that witnesses wore purple is not
established by the record. When counsel moved for a mistrial, he complained only about the
large number of spectators wearing purple. The record does not indicate that any particular
witness wore purple.

                                              13
counsel also noted that the jurors “had to walk through and/or pass those
individuals to go into the jury room” that morning. The State urged the court to
allow spectators to “express their support for the victim.” The court denied the
mistrial.

C.     No Inherent Prejudice

       A defendant has a constitutional right “to be tried by impartial, indifferent
jurors whose verdict must be based upon the evidence developed at trial.” Howard
v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996), overruled on other grounds
by Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014), and Simpson v. State,
119 S.W.2d 262 (Tex. Crim. App. 2003). When a defendant claims reversible
error based on external juror influence, as here, the defendant must show either
actual or inherent prejudice. Id. Appellant relies solely on the latter—inherent
prejudice—and does not purport to show actual prejudice. 6

       “To determine inherent prejudice, we look to whether ‘an unacceptable risk
is presented of impermissible factors coming into play.’” Id. (quoting Holbrook v.
Flynn, 475 U.S. 560, 570 (1986)). Essentially, the test is whether there is a
“reasonable probability that the conduct or expression interfered with the jury’s
verdict.” Id. 7 Inherent prejudice “rarely occurs and ‘is reserved for extreme
situations.’” Id. (quoting Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir. 1988)).


       6
        Actual prejudice requires showing that “jurors actually articulated a consciousness of
some prejudicial effect.” Howard, 941 S.W.2d at 117.
       7
          The United States Supreme Court has not applied the Holbrook test to non-state-actor
spectators’ conduct. See Carey v. Musladin, 549 U.S. 70, 76–77 (2006) (reversing a habeas
decision because Holbrook did not provide “clearly established Federal law” as applied to non-
state-actor spectators’ conduct of wearing buttons depicting the victim; “although the Court
articulated the test for inherent prejudice that applies to state conduct in [Holbrook], we have
never applied that test to spectators’ conduct”). In Howard, however, the Court of Criminal
Appeals held that its previously adopted “reasonable probability” test concerning “spectator
conduct or expression” was “essentially interchangeable” with the federal test applied in
                                              11
       Courts across the nation have applied the Holbrook test to spectator conduct
involving emotional outbursts,8 wearing buttons or clothing with written
messages,9 wearing buttons or clothing with the victim’s image, 10 wearing
ribbons,11 and wearing identifiable law enforcement uniforms. 12 Neither party, nor
this court, has found a case involving spectators’ wearing clothing of a particular
color in concert.

       In Howard, the Court of Criminal Appeals held there was no inherent
prejudice when twenty police officers wore their uniforms during the punishment
phase of trial of a defendant who murdered a police officer. 941 S.W.2d at 117–
18.   The high court noted that the facts giving rise to the claim of inherent
prejudice included “only the presence of twenty uniformed officers, sitting near the
back of the courtroom, mingled with 80 other spectators.” Id. at 117. The record

Holbrook concerning state-actor spectators’ conduct. See Howard, 941 S.W.2d at 117.
Accordingly, we apply the test for inherent prejudice articulated in Howard and Holbrook.
       8
        See, e.g., Maxson v. State, 79 S.W.3d 74 (Tex. App.—Texarkana 2002, pet. ref’d);
Moreno v. State, 952 S.W.2d 44 (Tex. App.—San Antonio 1997, no pet.).
       9
         See, e.g., Norris v. Risley, 878 F.2d 1178 (9th Cir. 1989); Long v. State, 151 So. 3d 498
(Fla. Dist. Ct. App. 2014); State v. Allen, No. 89917-7, — P.3d —, 2015 WL 196496 (Wash. Jan.
15, 2015).
       10
          See, e.g., Davis. v. State, 223 S.W.3d 466 (Tex. App.—Amarillo 2006, pet. ref’d,
untimely filed); Nguyen v. State, 977 S.W.2d 450 (Tex. App.—Austin 1998), aff’d, 1 S.W.3d 694
(Tex. Crim. App. 1999); State v. Lord, 165 P.3d 1251 (Wash. 2007); see also Carey, 549 U.S. at
82–83 (Souter, J., concurring) (“[O]ne could not seriously deny that allowing spectators at a
criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper
considerations. The display is no part of the evidence going to guilt or innocence, and the
buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the
buttons) and a call for some response from those who see them. On the jurors’ part, that
expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage
the grief or rage of survivors with a conviction would be the paradigm of improper
consideration.”).
       11
            See In re Woods, 114 P.3d 607 (Wash. 2005).
       12
           See, e.g., Johnson v. State, 406 S.W.3d 892, 913 n.4 (Mo. 2013) (en banc)
(Breckenridge, J., concurring in part and dissenting in part) (collecting cases), cert. denied, 134
S. Ct. 1495 (2014); Howard, 941 S.W.2d 102

                                                12
was too sparse to establish that there was an unacceptable risk of impermissible
factors affecting the jury or a reasonable probability that the conduct interfered
with the jury’s verdict. Id. at 117–18. The court noted, however, that there “might
be some basis for appellant’s argument” if the record had indicated “some overt
conduct or expression, or perhaps a higher ratio of police officers, or even perhaps
some indication that the law-enforcement contingency gravitated toward the jury.”
Id. at 118. The court did not intend to “give carte blanche approval to police
officer-spectators in a courtroom,” but in this case, “their presence did not
overwhelm the composition of the spectator gallery.” Id. at 118 n.14.

       Here, the record indicates that there were sixty to seventy spectators wearing
purple,13 but there is no indication that there was overt conduct by the spectators or
that they gravitated toward the jury. The record also does not establish the ratio of
spectators with purple dress to those not wearing purple. Thus, even more so than
in Howard, the record is too sparse to conclude that appellant suffered inherent
prejudice based on spectators’ wearing the color purple.14

       Something else distinguishes this case from those involving police officer
uniforms, express written messages, and pictures of the victim: the color purple
does not convey an obvious message. Although the State acknowledged, outside
the jury’s presence, that purple was the color of domestic violence awareness,
nothing in the record indicates the jury was aware of that fact or that the spectators
were wearing purple in support of Lopez. This case, therefore, is most similar to
In re Woods, where the Supreme Court of Washington held that the courtroom
       13
          See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) (“This Court accepts as
true factual assertions made by counsel which are not disputed by opposing counsel.”).
       14
          We note also that appellant’s claim on appeal that witnesses wore purple is not
established by the record. When counsel moved for a mistrial, he complained only about the
large number of spectators wearing purple. The record does not indicate that any particular
witness wore purple.

                                              13
atmosphere was not inherently prejudicial when spectators wore black and orange
ribbons in support of the victim. See 114 P.3d at 616–17. The ribbons did not
contain any inscription and did not express any message about the defendant’s
guilt. Id. at 616. Thus, the case was distinguished from one where spectators wore
buttons inscribed with “Women Against Rape” during a rape trial. See id. (citing
Norris, 918 F.2d 828).

      Appellant’s case is distinguished from a Florida decision cited by appellant.
The Florida court concluded the defendant suffered inherent prejudice by the
presence of twenty-five uniformed police officers. See Shootes v. State, 20 So. 3d
434 (Fla. Dist. Ct. App. 2009). In Shootes, half or more of the spectators were
uniformed police officers, id. at 436, and the substantial number of officers “sat
together as a group in the seats closest to the jury,” id. at 439. The court reasoned
that police officers dressing in uniform, although silent, may nonetheless
communicate a message to the jury that they want a conviction. See id. (citing
Woods v. Dugger, 923 F.2d 1454, 1459–60 (11th Cir. 1991)). Further, the Shootes
court distinguished its case from those in which spectators might wear clothing
merely to show support for a victim.           See id. at 439–40.    The charge was
aggravated assault of a police officer, the defendant’s self-defense claim was based
on his assertion that he thought the police he fired upon were robbers, and there
was conflicting testimony about whether their clothing and appearances should
have alerted the defendant to their identities as police officers. See id. at 436, 439–
40. As such, the display of the uniformed officers in the courtroom created an
unacceptable risk that the jury’s determinations of credibility and findings of fact
“would be tainted by impermissible factors not introduced as evidence or subject to
cross-examination.” Id. at 440.



                                          14
      Here, the meaning of the color purple was never articulated to the jury and it
was not directly related to any issue in the case. And unlike in Shootes, this record
does not indicate that half or more of the spectators wore purple or that those
spectators gravitated toward the jury. Shootes is neither controlling nor persuasive.

      We conclude that the record in this case does not reveal an unacceptable risk
of impermissible factors affecting the jury, or a reasonable probability that the
concerted wearing of purple by an unknown ratio of spectators affected the jury’s
verdict. Thus, we hold that appellant has not demonstrated inherent prejudice, and
the trial court did not abuse its discretion in denying appellant’s motion for a
mistrial.

      Appellant’s third issue is overruled.

                                IV.   CONCLUSION

      Having overruled all of appellant’s issues, we affirm trial court’s judgment.




                                       /s/    Sharon McCally
                                              Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).




                                         15
