            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0087-12



                            VAUGHN RAY BELL, Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SIXTH COURT OF APPEALS
                         FANNIN COUNTY

       K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J., filed
a dissenting opinion.

                                       OPINION

       Vaughn Bell contends the court of appeals erred in finding the trial judge’s error in

ordering him shackled during trial was harmless. We hold that the judge erred in shackling

Bell, but conclude the error was not constitutional error because there is no evidence the jury

saw his restraints. Despite the court of appeals’ erroneous application of a constitutional-

error harm analysis, we affirm its judgment.
                                                                                       BELL—2

       Over a lunch break during the guilt phase of Bell’s trial for the offense of possession

of a controlled substance, the judge ordered Bell shackled. Accordingly, Bell was shackled

with cuffs and “a chain that is linked between his two ankles.” Bell objected to the

shackling, arguing that using the device in front of the jury, if seen, would deprive him a

presumption of innocence, fair trial, “and his rights under United States and Texas

Constitution.” The State responded by asking the judge to have the court’s bailiff sit in

various seats in the jury box to see if jurors would be able to see Bell’s shackles. Complying,

the bailiff told the judge that he could not see the chain or ankle cuffs. Bell countered that

the jury would be able to hear the chains rattle if Bell moved during the trial. The judge

overruled Bell’s objection and stated,

       The bailiff’s obligation is to the jury, not to an inmate. There is a person here
       to handle that. Everybody who is in custody has the same necessity of
       restraint. The difficulty is, the sheriff’s office has one discreet [restraint] and,
       therefore, we only have the one that’s been available. We have allowed for
       y’all to position briefcases, and somebody went down and got an extra one so
       you have two. The State also has one under there. So, it’s the Court’s opinion
       that there is no impact on the presumption, and the defendant will just be
       mindful about movement of his legs, and we will be sure to give breaks for
       everybody to use the restroom and he can move his legs at that time.

We presume Bell was shackled for the duration of trial because the record does not indicate

otherwise. The jury found Bell guilty, and he was sentenced to twenty years’ confinement.

       Consistent with his trial objection, Bell asserted on appeal that his shackling violated

his right to due process and presumption of innocence.1 The court of appeals held that the


       1
           Bell v. State, 356 S.W.3d 528, 533 (Tex. App.—Texarkana 2011).
                                                                                   BELL—3

trial judge erred in ordering Bell shackled without finding a particularized reason for such

action apart from a general concern for courtroom security and the prevention of escape.2

Bell contended, as he does here, that the harm of this error should be analyzed under the

United States Supreme Court’s opinion in Deck v. Missouri, in which the Court held that,

when a judge improperly orders a defendant to wear visible restraints, “[t]he State must prove

‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the

verdict obtained.’”3 The court rejected Bell’s argument by distinguishing Deck on the basis

that “there is no evidence, in this case, that the restraints were perceived by the jury.” 4

Nonetheless, the court of appeals reviewed the error under a constitutional-error harm

analysis. After applying the Harris v. State5 factors (as modified by Snowden v. State 6 )—the

nature of the error, whether it was emphasized by the State, the probable implications of the

error, and the weight the jury would likely have assigned to it in its deliberations—the court

found the error harmless.7 We granted Bell’s petition for discretionary review alleging the

court of appeals erred in failing to consider alleged systematic shackling errors by the trial



       2
           Id. at 536.
       3
          544 U.S. 622, 635 (2005) (citing Chapman v. California, 386 U.S.18, 24
(1967)) (alteration in original).
       4
           Bell, 356 S.W.3d at 537.
       5
           790 S.W.2d 568 (Tex. Crim. App. 1989).
       6
           353 S.W.3d 815 (Tex. Crim. App. 2011).
       7
           Id. at 539.
                                                                                     BELL—4

judge in evaluating harm and in placing the burden on Bell to show his shackles were

perceived by the jury or otherwise infringed upon his constitutional right to be tried without

restraint. However, it is the characterization of the trial judge’s error—whether it is

constitutional or non-constitutional error—that is central to the court of appeals’ erroneous

analysis.

       Over one hundred twenty-five years ago, the Texas Court of Appeals—this Court’s

predecessor—embraced the English common-law principle that a defendant has the right to

appear at trial unbound by visible shackles; however, “in extreme and exceptional cases,

where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the

manacles may be retained.”8          Courts of varying jurisdictions have reached the same

conclusion “that the right may be overcome in a particular instance by essential state interests

such as physical security, escape prevention, or courtroom decorum.” 9 Similarly, courts have

uniformly imposed an express prohibition on routine shackling, as a defendant should only

be shackled “as a last resort.” 10

       More recently, we reaffirmed these principles and concluded that while courts permit

shackling, it is only justified when, in the trial judge’s discretion, it is necessary for a


       8
          Rainey v. State, 20 Tex. App. 455, 1886 WL 4636, *11 (Tex. Ct. App. 1886)
(citing 1 J. Bishop, N EW C RIMINAL P ROCEDURE § 955 (3rd ed)).
       9
         Deck v. Missouri, 544 U.S. 622, 628 (2005) (citing federal and state cases and
legal commentators).
       10
         Id. at 628-29. See also Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating that
“no person should be tried while shackled and gagged except as a last resort.”).
                                                                                     BELL—5

particular defendant in a particular proceeding.11 To this end, the record must manifest the

trial judge’s reasons for restraining a defendant.12 When the record fails to detail the grounds

for restraint, a trial judge errs in ordering a defendant shackled. And even when exceptional

circumstances or a manifest need for such restraint exists, the trial judge should make all

efforts to prevent the jury from seeing the defendant in shackles.13

       In Deck v. Missouri, the Supreme Court found that “judicial hostility” to shackling is

premised on three legal principles: (1) “the criminal process presumes that the defendant is

innocent until proved guilty”; (2) “the Constitution, in order to help the accused secure a

meaningful defense, provides him with a right to counsel,” and “[s]hackles can interfere with

the accused’s ‘ability to communicate’ with his lawyer”; and (3) “judges must seek to

maintain a judicial process that is a dignified process.”14 Even in light of the widely held

views of shackling and the principles these views espouse, the Deck Court found that due

process is only implicated when the jury can see the restraints: “Thus, the Fifth and

Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a

trial court determination, in the exercise of its discretion, that they are justified by a state




       11
            Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992).
       12
            Id.; Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991).
       13
            Long, 823 S.W.2d at 282.
       14
            Id. at 630-31.
                                                                                    BELL—6

interest specific to a particular trial.”15 “Visible shackling undermines the presumption of

innocence and the related fairness of the factfinding process. It suggests to the jury that the

justice system itself sees ‘a need to separate a defendant from the community at large.’” 16

The Deck Court was clear that it is not the mere shackling alone, but rather the jury’s

perception of the shackles, that undermines a defendant’s presumption of innocence.17 And

only when the trial judge unjustifiably orders a defendant to wear shackles that will be seen

by the jury must the State prove beyond a reasonable doubt that the shackling error did not

contribute to the verdict.18

       We too have focused on whether the jury perceived the defendant’s shackles in

addressing shackling errors, and Deck confirms the validity of such approach. In Long v.

State, we found that the trial judge erred in shackling Long, but because the record did not

show that the jury actually saw the shackles, we deemed the error harmless.19 A year later,


       15
            Deck, 544 U.S. at 629.
       16
            Id. at 630 (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).
       17
         Deck, 544 U.S. at 629; Ochoa v. Workman, 669 F.3d 1130, 1145-46 (10th Cir.
2012); United States v. Cooper, 591 F.3d 582, 588 (7th Cir. 2010); Mendoza v. Berghuis,
544 F.3d 650, 654 (6th Cir. 2008); Bernal v. Woodford, 281 Fed. App’x 706 (9th Cir.
2008); State v. Dixon, 250 P.3d 1174, 1181 (Ariz. 2011); State v. Sparks, 68 So.3d 435,
480-81 (La. 2011); People v. Letner, 235 P.3d 62, 106 (Cal. 2010); Ritchie v. State, 875
N.E.2d 706, 718 (Ind. 2007). But see United States v. Banegas, 600 F.3d 342, 347 (5th
Cir. 2010).
       18
            Deck, 544 U.S. at 635.
       19
            Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991).
                                                                                     BELL—7

in Cooks v. State, we avoided finding that the trial judge erred in shackling Cooks because

there was no evidence that the jury saw Cooks’s shackles, and therefore concluded that any

error was harmless.20 Read plainly, these cases indicate that the question of whether the jury

saw the shackles is a consideration relevant only to deciding harm. But these cases were

decided under Texas Rule of Appellate Procedure 81(b)(2), Rule 44.2’s predecessor, which

set out only one harm standard irrespective of the error’s nature.21 Nonetheless, these cases

emphasize that the primary concern in shackling error is the jury’s perception of the restraints

and the ill effects it may have upon the defendant’s presumption of innocence. More

importantly, Long and Cooks demonstrate an appropriate unwillingness to make the factual

assumption that the jury perceived a defendant’s shackles in the absence of any record

support.

       Bell urges us to adopt the Fifth Circuit’s approach in United States v. Banegas, in

which it held that the government has the burden of proving beyond a reasonable doubt that

the jury could not see the shackles when the record is unclear whether the jury in fact saw

the shackles, and because the government could not satisfy its burden, the court assumed the




       20
            Cooks, 844 S.W.2d at 723.
       21
          See former T EX. R. A PP. P. 81(b)(2) (“If the appellate record in a criminal case
reveals error in the proceedings below, the appellate court shall reverse the judgment
under review, unless the appellate court determines beyond a reasonable doubt that the
error made no contribution to the conviction or to punishment.”).
                                                                                     BELL—8

restraints were visible.22 Because of our own precedent to the contrary, we decline to follow

the Banegas approach.

       We are mindful that even a well-developed record on appeal may fail to establish with

certainty whether the jury perceived the defendant’s restraints, much less describe the extent

and nature of that perception. In light of this limitation, we must strike a balance between

the protection of a defendant’s valuable constitutional rights and the inappropriate

speculation and assumption of facts on appeal when it is unclear whether a shackling error

undermined a defendant’s presumption of innocence. Therefore, shackling error may rise

to the level of constitutional error when the record reflects a reasonable probability that the

jury was aware of the defendant’s shackles. We do not intend to suggest that reasonable

probability in this context means more probable than not; it simply requires a substantial

basis supporting a conclusion that the jury perceived the defendant’s restraints.

       Turning to the present case, the trial judge did not make any particularized finding

articulating the reasons for shackling Bell, nor are any justifiable reasons for shackling clear

from the record. The judge’s statement that “[e]verybody who is in custody has the same

necessity of restraint” evinces, at best, a generalized concern for courtroom security and, at

worst, a propensity to shackle defendants in custody during trial as a matter of course.

Neither suffices: the former is an insufficient reason; the latter a distasteful practice



       22
            United States v. Banegas, 600 F.3d 342, 347 (5th Cir. 2010).
                                                                                         BELL—9

“[reminiscent] of an era when the accused was brought from prison to the courtroom in

chains, unkempt and wearing (at best) prison attire, following which he was exposed to a jury

in the worst possible light.”23 Under these circumstances, it was clearly error to order Bell

shackled during his trial.

       Whether this error is of constitutional dimension in that it deprived Bell of his

presumption of innocence turns on an additional inquiry: whether the record shows a

reasonable probability that the jury was aware of the defendant’s shackles. After reviewing

the record, we cannot conclude that there was a reasonable probability the jury perceived

Bell’s restraints. In fact, the bailiff’s observations support the conclusion that the jury could

not see Bell’s restraints. It is also apparent that the judge took precautionary measures to

shield Bell’s shackles from view by placing briefcases in front of counsel’s table. Of course

this does not speak to whether the jury could hear the rattling of the restraint’s chain. But

in light of this record, to conclude that it is reasonably probable that the jury heard the rattling

of the chain would be purely speculative. If the rattling of the chain was in fact audible, it

is reasonable to expect that Bell would have brought these facts to the trial judge’s attention,

thereby making a record of the rattling, and perhaps, provide an opportunity to reurge his

objection.

       At trial, Bell never specifically asserted that the shackles would or did interfere with



       23
            United States v. Brantley, 342 Fed. App’x 762, 770 (3rd Cir. 2009).
                                                                                      BELL—10

his ability to communicate with counsel or undermined the dignity of the judicial process.

However, even if we interpreted his objection at trial and arguments below to make such

claims and ignore the substantial number of cases finding that Deck does not control invisible

restraints, it does not appear that these principles identified in Deck were compromised here.

There is no evidence that the restraints interfered with Bell’s ability to communicate with

counsel or participate in his trial or was a factor in his decision not to testify. And even if

we assume that an undignified judicial process is an independent component of due process

equal to the presumption of innocence and the right to counsel, there is simply no evidence

that Bell’s shackles undermined the dignity of the judicial process. We therefore find that

the judge’s error in shackling Bell was not of constitutional dimension.

       In finding the error harmless, the court of appeal applied the constitutional-error harm

analysis, defined by Rule 44.2(a), which required the court to reverse Bell’s judgment unless

it determined beyond a reasonable doubt that the error did not contribute to the conviction

or punishment. Although we would typically remand to the court of appeals to perform the

proper harm analysis—under Rule 44.2(b), here—it makes little sense to do so when the

court of appeals previously found the error harmless even under the more rigorous

constitutional-error harm analysis. By finding the error harmless under the greater standard,

the court of appeals logically held that Bell’s shackling did not affect his substantial rights.24


       24
          Compare T EX. R. A PP. P. 44.2(a) (“Constitutional Error. If the appellate record
in a criminal case reveals constitutional error that is subject to harmless error review, the
                                                                                BELL—11

       We affirm the court of appeals’ judgment.




DATE DELIVERED: September 18, 2013

PUBLISH




court of appeals must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction
or punishment.”) with T EX. R. A PP. P. 44.2(b) (“Other errors. Any other error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.”).
