Opinion issued June 16, 2015




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-14-00415-CR
                         ———————————
                MANUEL RIVERA-SANCHEZ, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 177th District Court
                         Harris County, Texas
                     Trial Court Case No. 1339645



                     MEMORANDUM OPINION

     A jury convicted appellant Manuel Rivera-Sanchez of capital murder and

assessed his punishment at life imprisonment without parole in the Texas
Department of Criminal Justice, Institutional Division. 1 In his sole point of error,

appellant contends that the trial court violated his right to a fair trial under the

United States and Texas Constitutions by requiring him to wear shackles during

trial. We affirm.

                                   Background

      On the evening of March 1, 2012, appellant and Israel Soriano went to the

Tanner Park Court apartment complex to buy prescription pills from Xavier

Clinton. The two men approached Avious Adams, a resident of the complex, and

asked him if he had any Xanax, to which Adams responded “no.” Appellant then

told Adams, whom appellant recognized from high school, that he had recently

been released from jail for attempted murder and that he was “about to do another

one. Don’t tell nobody.” Appellant and Soriano then walked off toward the

playground.

      Several minutes later, Adams heard two gunshots. Adams saw two men run

and get into a red pick-up truck with a woman and drive off. When Adams arrived

at the playground, he saw Clinton lying on the sidewalk with gunshot wounds.

Officers responding to the scene noted Clinton had sustained a gunshot wound to

his chest, a deep wound to his right wrist, and a cut on the top of his head. The




1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014).
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officers also found two .45 caliber shell casings near Clinton’s body as well as

Clinton’s cell phone.

      Later that night, appellant, Xochi Santiago, and Soriano went to their friend

Cassandra’s apartment. Cassandra’s roommate, Becky Vargas, testified that when

appellant arrived, he was carrying a gun and acting very hyper. According to

Vargas, appellant attempted to clean some blood off of his pants in her restroom

and told her that he had shot a man and taken some pink pills from him because he

and Soriano did not have any money to pay for them. Vargas also testified that

appellant told her that Soriano had “cut [Clinton’s] arm off.” Vargas took a picture

of the gun with her cell phone.

      Appellant, Santiago, Soriano, Vargas, Cassandra, and one of Cassandra’s

friends then decided to go to a dance club. As they were getting into appellant’s

red pick-up truck, appellant shot himself in the leg. Vargas and Cassandra took

appellant to the hospital in his truck. When appellant was discharged from the

hospital, he called Cassandra and asked her to pick him up. Cassandra and Vargas

attempted to go to the hospital but when they could not find it they returned to their

apartment. Meanwhile, appellant called the police to report his truck stolen.

      The next morning, Detective Millard Waters, one of the police officers

investigating Clinton’s shooting, received a phone call from a patrol officer

informing him that someone had reported a stolen red pick-up truck and that the

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person had a gunshot wound. The patrol supervisor asked appellant, Santiago, and

Soriano to come to the police station for an interview. Soriano gave a written

statement but appellant and Santiago were too intoxicated to be interviewed.

         During the course of their investigation, Detective Waters and Sergeant

Brian Harris determined that appellant and Soriano were suspects in Clinton’s

death.     Both Adams and Vargas positively identified appellant and Vargas

provided the officers with a picture of appellant’s gun.      Sergeant Harris and

Detective Waters learned that the shell casings from the crime scene were .45

caliber, and an analysis of appellant’s weapon revealed that the casings had been

fired from appellant’s gun.     They also learned that the last incoming call to

Clinton’s phone was from appellant’s cell phone, and that three minutes later

someone used Clinton’s phone to call 911. The medical examiner determined that

Clinton’s death was a homicide and that the cause of death was a gunshot wound to

his torso.

         On March 7, 2012, Sergeant Harris and Detective Waters conducted

follow-up interviews with appellant and Santiago. During the interview, appellant

consented to a buccal swab. When appellant later asked for a lawyer, Detective

Waters stopped the interview and began interviewing Santiago. When Detective

Waters returned to appellant’s room, appellant immediately stated that he “wanted

to tell the truth” and admitted that he had shot Clinton and taken pink pills from

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him. Following his confession, appellant was arrested and charged with capital

murder. Appellant pleaded not guilty, and his case was tried to a jury.

      During a break on the third day of trial, and outside the presence of the jury,

the following exchange took place:

      Prosecutor: Yes, Judge. I want to point out that the way the defendant
      [is] positioned right now, it is possible for jurors to see his legs and
      feet and, therefore, see that he is shackled.

      The Court: You know I can’t even see it now.

      Prosecutor: When he’s out here, you can see it. I’m pointing it out if
      maybe y’all can move that chair.

      The Court: Move that other chair back.

The record does not reflect that appellant’s counsel objected to the use of shackles

or requested any finding regarding shackles, or that the trial court made any

specific ruling or finding regarding its decision to shackle appellant’s legs.

      At the conclusion of trial, the jury found appellant guilty as charged in the

indictment. The trial court sentenced appellant to life imprisonment without the

possibility of parole. Appellant timely filed a notice of appeal.

                                  Applicable Law

      The Fourteenth Amendment of the United States Constitution and Article I,

Section 19 of the Texas Constitution guarantee criminal defendants the right to a

fair trial. See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976).

To ensure a fair trial, “[t]he law has long forbidden the use of visible shackles
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during the guilt phase” of a criminal defendant’s trial. See Wiseman v. State, 223

S.W.3d 45, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). A defendant has

the right to be tried without shackles, regardless of whether they are visible to the

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

      Despite this general rule, however, courts recognize that it may be necessary

for certain defendants to be restrained in exceptional circumstances. See Deck v.

Missouri, 544 U.S. 622, 627–28, 125 S. Ct. 2007, 2011 (2005).                  Such

circumstances may arise, for instance, when a defendant has demonstrated a

propensity to escape or has threatened or assaulted courtroom personnel, thereby

implicating an essential state interest, namely, courtroom security. Wiseman, 223

S.W.3d at 50 (citing Deck, 544 U.S. at 632, 125 S. Ct. at 2014). Prior to the use of

shackles, however, a trial court must make a specific finding that they are

necessary for reasons particular to a given case. See Deck, 544 U.S. at 627, 125 S.

Ct. at 2011 (“[T]rial courts may not shackle defendants routinely, but only if there

is a particular reason to do so.”). Such determinations are reviewed under an abuse

of discretion standard. Wiseman, 223 S.W.3d at 50. A trial court abuses its

discretion when it acts without reference to any guiding rules or principles or acts

arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990).




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                                     Discussion

      In his sole point of error, appellant contends that he was denied a fair trial by

being shackled during his trial when the record does not show any specific and

particularized reasons justifying the court’s decision requiring him to be shackled.

He further argues that he was harmed by the court’s error because the shackles

were visible to the jury during trial, thus infringing upon his presumption of

innocence.

      Here, the record reflects that appellant did not object at trial to being

shackled or to the lack of specific findings by the trial court justifying the use of

shackles in this case. Because appellant did not object at trial, he has waived his

right to appeal on these grounds. See TEX. R. APP. P. 33.1(a); Cedillo v. State, 250

S.W.3d 145, 150 (Tex. App.—Eastland 2008, no pet.) (holding that because

defendant “did not object on the record to the use of restraints in the jury’s

presence, this issue is waived . . . .”); Wiseman, 223 S.W.3d at 49 (finding

defendant’s failure to object at trial that his shackling violated Texas Constitution

waived his right to appellate review on that ground); see also Kelley v. State, No.

05-09-01438-CR, 2012 WL 2628074, at *6 (Tex. App.—Dallas July 6, 2012, pet.

ref’d) (mem. op., not designated for publication) (holding that shackling is not

fundamental error and thus, defendant needed to object to preserve any error);

Pereida v. State, No. 13-09-354-CR, 2010 WL 2783743, at *6 (Tex. App.—

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Corpus Christi July 15, 2010, pet. ref’d) (memo op., not designated for publication)

(concluding that defendant’s failure to object to use of shackles caused complaint

to be waived).

      However, assuming without deciding that the trial court erred in requiring

appellant to be shackled, any such error is harmless. See Wiseman, 223 S.W.3d at

50 (noting trial court abused its discretion in failing to state with particularity its

reasons for shackling defendant). In Bell v. State, the Court of Criminal Appeals

stated that whether error in shackling a defendant during trial is of constitutional

dimension turns on “whether the record shows a reasonable probability that the

jury was aware of the defendant’s shackles.” 415 S.W.3d at 283. Here, the record

reflects that, prior to the jury’s return to the courtroom, the trial court took the

precautionary measure of instructing that a chair be moved to shield appellant’s

shackles from the jury’s view. See id. (concluding that there was no reasonable

probability that jury saw defendant’s restraints because judge took precautionary

measures to shield defendant’s shackles from view by placing briefcases in front of

counsel’s table). Further, the prosecutor’s statement made during a break in the

proceedings—that “the way the defendant [is] positioned right now” made it

possible for the jurors to see that he was shackled—suggests that it was previously

impossible to see his shackles.       There was no further discussion regarding

appellant’s shackles during the remainder of the trial. If appellant’s shackles had

                                          8
become visible later during the trial, it is reasonable to expect that the State or trial

counsel would have brought it to the trial court’s attention. See id. (noting it was

reasonable to expect defendant to bring any audible rattling of his shackles in front

of jury to court’s attention). The record does not support a finding that there was a

reasonable probability that the jury was aware of appellant’s shackles.

Consequently, any error in shackling defendant did not amount to constitutional

error and is analyzed under Rule of Appellate Procedure 44.2(b).

      Under Rule 44.2(b), any non-constitutional “error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” TEX. R. APP.

P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. See Schmutz v.

State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014); Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002). In assessing the likelihood that the jury’s decision

was adversely affected by the error, important factors to consider include the

nature of the evidence supporting the verdict, the character of the alleged error and

how it might be considered in connection with other evidence in the case, and may

include whether the State emphasized the error and whether overwhelming

evidence of guilt was present. Schmutz, 440 S.W.3d at 39.

      There is nothing in the record showing that the jury saw appellant’s shackles

or was otherwise aware that he was shackled. When the prosecutor informed the

                                           9
trial court that appellant’s shackles were visible in “the way [appellant is]

positioned right now,” the court took the precautionary measure of instructing that

a chair be moved to shield appellant’s shackles from the jury’s view. Following

the exchange outside of the jury’s presence, there was no further discussion

regarding appellant’s shackles during the remainder of the trial. The record also

reflects that the evidence of appellant’s guilt was overwhelming. We conclude that

any shackling error did not have a substantial and injurious effect or influence in

determining the jury’s verdict. See Bell, 415 S.W.3d at 283; see also Schroeder v.

State, Nos. 13–13–00379–CR & 13–13–00380–CR, 2015 WL 1632309, at *11

(Tex. App.—Corpus Christi Apr. 9, 2015, no pet. h.) (mem. op., not designated for

publication) (concluding that defendant waived alleged error regarding restraints

but that even if issue had been preserved, any error would be harmless absent

evidence in record that jury was aware of defendant’s shackles or bracelet).

Having found that the error, if any, would have been harmless, we overrule

appellant’s sole issue.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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