                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00092-CR
         ______________________________


       MELVIN LEE MOBLEY, III, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
             Trial Court No. 07-0446X




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION

        Melvin Lee Mobley, III, pled guilty to two counts of burglary of a habitation and one count

of kidnapping. He was assessed a life sentence on each of the three counts. On appeal, he asserts

that the trial court's decision to require Mobley to wear a leg brace under his long pants during the

punishment phase was an abuse of discretion and that the two burglary convictions for the same

entry of a habitation constituted double jeopardy. We modify the judgment to strike one of the two

burglary convictions, but otherwise affirm the judgment of the trial court. That result is dictated by

our conclusions that (1) the trial court did not abuse its discretion in entering the leg-brace order and

(2) the two burglary convictions constitute double jeopardy.

        On November 16, 2007, Mobley forcefully entered the Harrison County home owned by

Michalene Jones and Dan Anderson.1 In the process, Mobley assaulted Anderson, tied Anderson and

Jones with an extension cord, and threatened them with a meat cleaver. Mobley was charged with

two virtually identical counts of burglary of a habitation. Count I of Mobley's indictment contained

two paragraphs. Paragraph A alleged that Mobley, "with intent to commit a felony offense of

aggravated assault, enter[ed] a habitation, without the effective consent of Michalene Jones, the

owner." See TEX . PENAL CODE ANN . § 30.02(a)(1) (Vernon 2003). The second paragraph accused

Mobley of "intentionally or knowingly enter[ing] a habitation, without the effective consent of

Michalene Jones, the owner thereof, and attempted to commit or committed the felony offense of



        1
            Jones is the mother of a former girlfriend of Mobley, while Anderson is Jones' boyfriend.

                                                   2
aggravated assault" with a meat cleaver. See TEX . PENAL CODE ANN . § 30.02(a)(3) (Vernon 2003).

Count II also had two paragraphs, identical to those in Count I, except that each paragraph

in Count II referred to Anderson as the owner of the habitation rather than Jones. Mobley pled guilty

to all three counts, and punishment was submitted to the jury.

(1)     The Trial Court Did Not Abuse Its Discretion in Entering the Leg-Brace Order

        Mobley first complains of the trial court's decision to keep Mobley in restraints during the

punishment phase of the trial.

        During a pretrial hearing on the issue of restraint, the trial court heard evidence from jail

administrator Captain John Hain that Mobley had many disciplinary write-ups while in custody. The

first write-up resulted from Mobley's assault of an officer. During a jailhouse interview, Mobley

shoved a table on top of an investigating officer and held a pen "in a motion to attempt to stab [the

officer] if he could have gotten close enough." The second write-up resulted from an attempted

escape. A fight broke out among inmates attending a morning religious service at the jail. Jailers

rushed to subdue the fighting. After taking control of the situation, one of the jailers noticed that his

keys were missing. Jailers found Mobley traversing the hallway with the keys. The sheriff spoke

of Mobley with the trial court and expressed a concern for the safety of the sheriff's staff and

inmates. At a docket call, Mobley "vandalized" the courtroom by "sticking his face through a plate

glass window." Taking all of these factors into consideration, the trial court noted that Mobley was

a "physical problem" and had "exhibited an inability to conduct himself properly in the courtroom."



                                                   3
Consequently, the court ordered Mobley to wear a leg brace underneath long pants for the duration

of the trial. The court specified that the brace would not be visible to the jury.

       Whether a defendant shall be tried in restraints is within the discretion of the trial court.

Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). Thus, we review the ruling of the trial

court for abuse of discretion. Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992); Long,

823 S.W.2d at 282.

       On the other hand, conducting a trial where the defendant is in shackles is "obnoxious to the

spirit of our laws and all ideas of justice." Ziolkowski v. State, 223 S.W.3d 640, 643 (Tex.

App.—Texarkana 2007, pet. ref'd) (citing Gray v. State, 99 Tex. Crim. 305, 268 S.W. 941, 950

(1924)). The Fourteenth Amendment to the United States Constitution and Article I, Section 19 of

the Texas Constitution guarantee criminal defendants the right to a fair trial. U.S. CONST . amend.

XIV; TEX . CONST . art. I, § 19; Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.—Houston [1st Dist.]

2006, no pet.). Three elements of this fundamental guarantee are directly implicated when a

defendant is shackled during trial proceedings. Id. First, in our criminal courts, a defendant is

presumed to be innocent until the State proves his or her guilt. Jurors can be prejudiced when

viewing defendants in jail clothing or restraints, seriously infringing on this presumption of

innocence. Cooks, 844 S.W.2d at 722; Long, 823 S.W.2d at 282; Ziolkowski, 223 S.W.3d at 642;

Garza v. State, 10 S.W.3d 765, 767–68 (Tex. App.—Corpus Christi 2000, pet. ref'd). Second, the

use of restraints can undermine a defendant's ability to effectively communicate with his or her



                                                  4
attorney, impeding the right to counsel. Wynn, 219 S.W.3d at 59. Third, use of shackles in the

presence of the jury compromises the "courtroom's formal dignity, which includes the respectful

treatment of defendants" and acknowledges "the gravity with which Americans consider any

deprivation of an individual's liberty through criminal punishment." Id. (citing Deck v. Missouri, 544

U.S. 622, 631 (2005)). For these reasons, shackling is called for only in rare circumstances, and the

record must detail the grounds for such action. Cooks, 844 S.W.2d at 722; Gray, 268 S.W. at 950.

       It is well established, however, that when a defendant enters a plea of guilty, he or she admits

the existence of all facts necessary to establish guilt, and the presumption of innocence is dissolved.

Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968). Further, where the record does not

affirmatively show that the jury had seen the defendant's shackles, harm cannot be demonstrated on

appeal. Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003); Ziolkowski, 223 S.W.3d at 642.

       The sitting trial judge had previously presided over the first trial of Mobley's case, which

resulted in a mistrial, and had the opportunity to observe Mobley's courtroom behavior. Evidence

that Mobley was a threat to the sheriff and fellow inmates, tried to escape from jail, assaulted an

officer, and vandalized the courtroom all contributed to the court's decision to require Mobley's

restraint during the punishment phase. We need not decide whether the court's findings of fact,

based on these factors, were specific enough to justify restraint. Rather, no evidence suggests that

the jury saw the restraints. Also, in pleading guilty to all counts in the indictment, Mobley's due

process concerns were extinguished. We overrule this point of error.



                                                  5
(2)    The Two Burglary Convictions Constitute Double Jeopardy

       In his second point of error, Mobley contends that the trial court's convictions for burglary

of a habitation, based on a single unlawful entry, are barred due to double jeopardy provisions. A

defendant must generally raise a double-jeopardy claim at the trial court level to preserve error for

appellate review. Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref'd).

When a double-jeopardy claim violation is clearly apparent from the face of the record, however, it

can be raised for the first time on appeal. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App.

2008); Rangel, 179 S.W.3d at 70. Here, Mobley claims that he was charged in one indictment for

burglary arising from the same act in two different separate counts. Thus, any error will be apparent

on the face of the record and can be reviewed. Rangel, 179 S.W.3d at 70–71.

       Our founding fathers recognized that allowing states to subject citizens to multiple trials for

the same offense "would arm the Government with a potent weapon of oppression." Stephens v.

State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (citing United States v. Martin Linen Supply

Co., 430 U.S. 564, 569 (1977)). The Fifth Amendment to the United States Constitution,

and Article I, Section 14 of the Texas Constitution, prohibit double jeopardy and protect individuals

from being tried twice for the same offense, possibly receiving double punishments. U. S. CONST .

amend. V; TEX . CONST . art. I, § 14; Albernaz v. United States, 450 U.S. 333, 343 (1981); Illinois v.

Vitale, 447 U.S. 410, 415 (1980); Stephens, 806 S.W.2d at 814–15. This protection is necessary to

avoid subjecting a defendant "to embarrassment, expense and ordeal . . . compelling him to live in



                                                  6
a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187–88 (1957).

       Because it clarifies the elements of a criminal offense, the statutory language determines

whether offenses are the same for double-jeopardy purposes. Ex parte Cavazos, 203 S.W.3d 333,

336 (Tex. Crim. App. 2006). Thus, in Texas, when resolving this issue, we focus on the elements

alleged in the charging instrument. Bigon, 252 S.W.3d at 370. Counts I and II of the indictment

in this case both allege burglary of a habitation. Burglary is a crime against property and is not an

assaultive offense against a person. Cavazos, 203 S.W.3d at 336–37. A person commits that offense

when, without effective consent of the owner, he or she enters a habitation, with the intent to commit

a felony, or enters a habitation and commits or attempts to commit a felony or theft. TEX . PENAL

CODE ANN . § 30.02(a)(1), (3). When a burglary is committed, the harm results from the entry itself.

Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994). The offense is complete once

the unlawful entry is made, without regard to whether the intended theft or felony is also completed.

Id.; Cavazos, 203 S.W.3d at 337.

       The State argues that Count I alleges assault against Jones and Count II alleges assault against

Anderson, and that, therefore, the counts require proof of different elements. If different statutory

provisions require an element or "proof of a fact which the other does not," there are no double-

jeopardy concerns. Blockburger v. United States, 284 U.S. 299, 304 (1932). We note two problems

with the State's argument.



                                                  7
       First, the indictment does not allege a particular victim of any assault associated with the

burglary. Instead, Count I of the indictment alleges that the owner of the house Mobley burglarized

was Jones, while Count II alleges the owner is Anderson. Except for those differences, Count I is

identical to Count II. And the house involved is clearly a single house, owned by both Jones and

Anderson.

       Plus, the Blockburger test applies only when the same act or transaction constitutes a

violation of two distinct statutory provisions, and focuses on the proof necessary to prove elements

of each offense. Vitale, 447 U.S. at 416; Rangel, 179 S.W.3d at 71. The test is not needed where

one indictment alleges two separate counts of the same statutory offense arising out of one incident

because double-jeopardy concerns will necessarily exist.2 The State's argument urging this Court

to analyze this case using Blockburger is inherently flawed for this reason, as well.

       Mobley's convictions violate double jeopardy because he has been convicted and sentenced

twice for the same offense. See Cavazos, 203 S.W.3d at 335–37.

       Typically, when a defendant is convicted of multiple offenses that are the same for double

jeopardy purposes, the conviction for the most serious offense should be retained and the other

offenses should be set aside. Id. at 337; Rangel, 179 S.W.3d at 71. When the degree of both

offenses and the punishment assessed for both offenses is the same, this rule is inapplicable, and any



       2
        While the underlying assaultive offenses may have constituted separate and distinct acts,
requiring proof of assault on both parties, Mobley was not convicted of the underlying offenses.
Rather, he was convicted of two burglaries.

                                                  8
one of the convictions can stand. See Ex parte Senterfitt, No. AP-75659, 2007 WL 1138875, at *1

(Tex. Crim. App. Apr. 18, 2007) (mem. op., not designated for publication) (court affirmed one out

of three convictions for burglary that arose from single unlawful entry).

       We modify the trial court's judgment to strike only Mobley's conviction and sentence under

Count II; we affirm the judgment of the trial court as to Counts I and III.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        August 21, 2008
Date Decided:          October 1, 2008

Do Not Publish




                                                  9
