NO. 01-14-00822

In The Court Of Appeals Of Texas

For The 

First Supreme Judicial District Of Texas

_____________________________________________________________ 

NO.1404673

IN THE 177th JUDICIAL DISTRICT COURT

OF HARRIS COUNTY, TEXAS

The Honorable Ryan Kelley Goeb Patrick, presiding

____________________________________________________________

Weylin Alford

Appellant

VS

THE STATE OF TEXAS

 Appellee

____________________________________________________________

APPELLANT’S ANDERS BRIEF

____________________________________________________________

GLENN J. YOUNGBLOOD

Appellant's Attorney

5555 West Loop South, Ste. 395

(713) 432-1013

(713) 432-1013 FAX

SBOT # 22217400

glenlaw@comcast.net

ORAL ARGUMENT NOT REQUESTED
Page 2 of 27

TABLE OF CONTENTS

LIST OF AUTHORITIES .............................................................................. 3

STATEMENT OF CASE ............................................................................... 4

STATEMENT OF FACTS............................................................................. 6

STATE'S WITNESSES ...................................................................................... 6

Victor Ramirez, Harris County Sheriff's Office Deputy ................................ 6

Cheryl Roberson ............................................................................................. 8

Audra Shannon................................................................................................ 9

DEFENSE WITNESSES .................................................................................. 13

SUMMARY.................................................................................................. 13

ISSUES PRESENTED ................................................................................. 14

ISSUE NUMBER 1......................................................................................... 14

Argument and Authority............................................................................... 14

ISSUE NUMBER 2......................................................................................... 22

Argument and Authority............................................................................... 22

ISSUE NUMBER 3......................................................................................... 22

Argument and Authority............................................................................... 23

CONCLUSION............................................................................................. 26
Page 3 of 27

LIST OF AUTHORITIES

CASES

Anders v. California, 386 US 738,744, 18 LEd.2d 493, 87 S Ct 1396 (1967...............................................13

Barras v. State, 902 S.W.2d 178,(Tex.App.--El Paso 1995, pet. ref'd) .........................................................15

Calcarone v. State, 675 S.W.2d 785 (Tex.App.--Houston [14th Dist.] 1984, no pet.)..................................16

Cedillos v. State, 250 S.W.3d 145 (Tex.App.-Eastland 2008).......................................................................25

Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. App. 1974); .........................................................................13

Deck v. Missouri, 544 U.S. 622, (2005) ..................................................................................................23, 24

Faretta v. California, 422 U.S. 806 (1975)..................................................................................14, 15,16, 20

Fernandez v. State, 564 SW2d 771 (Tex. Crim. App. 1978).......................................................................... 6

Ford v. State, 870 S.W.2d 155,(Tex.App.--San Antonio 1993, pet. ref'd) ....................................................15

Hardee v. Kuhlman, 581 F.2d 330 (CA2 1978).............................................................................................26

High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978)..............................................................................13

Hobbs v. State, 778 S.W.2d 185, (Tex.App.--Beaumont 1985, no pet.).......................................................15

Holbrook v. Flynn, 475 U.S. 560 (1986).......................................................................................................26

Illinois v. Allen, 397 U.S. 337 (1970)......................................................................................................20, 24

Johnson v. State, 760 S.W.2d 277 (Tex.Crim.App. 1988). ...........................................................................16

Johnson v. Zerbst, 304 U.S. 458....................................................................................................................15

Jordan v. State, 571 S.W.2d 883 (Tex.Crim.App. 1978). .............................................................................15

Logan v. State, 690 S.W.2d 311, (Tex.App.--Dallas 1985, pet. ref'd)...........................................................16

Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)..........................................................................23, 25

Manley v. State, 23 S.W.3d 172, 173 (Tex.App.--Waco 2000, pet. ref'd).....................................................15

Nixon v. State, 572 SW2d 699 (Tex. Crim. App. 1978)................................................................................ 6

U.S. v. Burch, 48 F.3d 1233 (10th Cir. 1995)..............................................................................................26

United States v. Long, 597 F.3d 720 (5th Cir. 2010).....................................................................................20

CONSTITUTIONAL PROVISIONS

Tex. Const. art. 1 § 10 ............................................................................................................................21, 22

U.S. Const. amend. 6th............................................................................................................................21, 22

U.S. Const Amnd 14th.............................................................................................................................21, 22
Page 4 of 27

STATEMENT OF CASE

The Appellant, Weylin Alford was indicted on January 9, 2014 by a 

Harris County Grand Jury on a charge of Burglary of a Habitation, a Second 

degree felony alleged to have occurred on October 12, 2013. Said indictment 

further alleged that the Appellant had been twice previously convicted of the 

felony of Possession of a Controlled Substance in Cause Number 3022258 

in the 147th District Court of Travis County, Texas on April 7, 2003 and 

Possession of a Controlled Substance in Cause Number 1289552 in the 

185th District Court of Harris County, Texas on January 4, 2014 for 

enhancement purposes. The latter prior conviction was found to be a State 

Jail Felony inappropriate for enhancement purposes and was not included in 

the evidence presented nor was the jury informed of that conviction.

At the pre-trial hearing on September 9, 2014 The Defendant advised 

the Court that he wanted to represent himself at trial. He was admonished by 

the Court that if that was his decision there would have to be another hearing 

to consider his request for self representation. The court further advised 

appellant that the Case was set for trial on October 3, 2014 and would not be

continued to give appellant additional time, nor would it be continued at the 

request of any new lawyer appellant may hire. [Reporter's Record Vol. 2].
Page 5 of 27

On September 19, 2014 the Court conducted a hearing in accordance 

with Faretta v. California, 422 U.S.806, 835 (1975) [Reporter's Record Vol. 

3]. See also The Court's Order granting Appellant's request to represent 

himself at trial at [Clerk's Record , Pg.112].

Upon Appellant’s plea of not guilty the case was tried before a jury on 

October 2, 2014. The jury found the Appellant guilty as charged. 

On the morning before the commencement of the punishment phase of 

the trial, while in the hold over area outside the courtroom, the Appellant 

was found to have concealed, among other things a hand made stabbing 

instrument commonly referred to as a "shank". After a brief discussion the 

Court revoked Appellant's pro se status and appointed standby counsel to 

proceed. 

After hearing the evidence and argument during the punishment phase 

of the trial the Jury sentenced Appellant to 30 years years confinement in the 

Institutional Division of the Texas Department of Criminal Justice.

Appellant gave timely and proper Notice of Appeal on October 6, 

2014 and the Trial Court Certified Appellant's right to appeal.
Page 6 of 27

STATEMENT OF FACTS

As must be done in accordance Fernandez v. State, 564 SW2d 

771 (Tex. Crim. App. 1978) and Nixon v. State, 572 SW2d 699 (Tex. Crim. 

App. 1978), viewed in the light most favorable to the verdict, the record 

reflects the following: 

State's Witnesses

Victor Ramirez, Harris County Sheriff's Office Deputy

Deputy Ramirez Testified that he responded to a call initially thought 

to be an Aggravated Assault at 942 Fruitvale, Houston, Tx. Upon arrival he 

met with the witness and home owner Cheryl Roberson and the Complainant 

Audra Shannon. Deputy Ramirez stated that he further learned that the case 

was a Burglary of a Habitation with intent to commit an assault. He also 

determined that the suspect had broken into the house and assaulted the 

Complainant. Entry into the house was gained by throwing a five gallon 

paint can through the front window. Deputy Ramirez took photos of the 

broken window, the paint can and the injuries sustained by the Complainant. 

the photos were admitted without objection as State's Exhibits 2, 3, 4, 5, 6, 7,

8, 9 and 10. [Reporter's Record, Vol. 5, Pg. 16 - 18]. Deputy Ramirez further 

testified that after he spoke to Ms Roberson and the Complainant he 

searched the general area to locate the suspect and found him at a Dollar 
Page 7 of 27

Store. The Appellant was taken into custody. [Reporter's Record, Vol. 5, Pg 

20, 21].

Deputy Ramirez was shown State's Exhibit 11 which he identified as 

the medical report of the North East Medical Center. Having been on file 14 

days prior to trial, the State offered State's Exhibit 11 and it was admitted 

without objection. [Reporter's Record, Vol. 5, Pg. 22-23]. The State 

requested and was granted permission to orally publish State's Exhibit 11 to 

the jury:

MR. GILLIAM: State's Exhibit No. 11 are medical records from the 

Houston Northwest Medical Center. The notes indicate that the patient 

states that she was assaulted by a fist, that she had injuries to her head 

and face. The diagram on the records indicate a contusion to her face 

and possibly to her neck.

Included in these records are records from the Harris County 

Emergency Corps. The records state that the medic was dispatched to 

a possible assault and upon arrival to the scene the complainant was 

noted to be sitting upright outside sitting in a chair saying that she was 

beaten up by her boyfriend. The boyfriend came over to talk and she 

did not let him. He broke the window and assaulted the patient. She 

states that she was hit with his fist and denies him using anything 
Page 8 of 27

other than a fist. She states she is having neck pain and that her head 

hurts. [Reporter's Record, Vol. 5, Pg. 23-24].

Cheryl Roberson

Ms. Roberson testified that she knew Appellant from work at WalMart where she was employed as a cook in the deli department and he was 

thought to be a stocker. She also met the Complainant, Appellant's 

girlfriend, who she knew as Shay. This witness made an in-court 

identification of the Appellant. Ms Roberson went on to testify that she had 

known the Complainant and Appellant a short time; approximately two 

weeks. [Reporter's Record, Vol. 5, Pg. 37, 38].

Ms Roberson further testified that the Complainant began to live with 

her for about 4 or 5 days at her residence at 914 Fruitvale, Houston, Harris 

County, Texas, when the alleged incident occurred. The Complainant began 

to live with Ms Roberson because she was told by Appellant that she had no 

place to go. The Complainant moved in bringing her belongings with her 

and was allowed to sleep on a couch. [Reporter's Record, Vol. 5, Pg 38 - 39].

The witness went on to state that on October 12, 2013 while the 

Complainant was living with her they came in contact with the Appellant. 

She described how Appellant first knocked on the door and asked for Shay. 

When Appellant was told Shay wouldn't come in there because she was 
Page 9 of 27

scared, he said "I'm going to count to ten." At that time Appellant did not

have permission to enter the home. When I shut the door he got the paint can 

and hit it through the window and went in and beat her up. [Reporter's 

Record, Vol. 5, Pg. 40 - 43].

When the window was broken Ms Roberson, her three grandkids ages 

5, 6 and 8 as well as the Complainant were in the living room. Ms Roberson 

told appellant to get out of her house. The appellant walked to the 

Complainant and beat her up; he kicked her, hit her in the face. The beating 

lasted for 15 minutes according to the witness. Ms Roberson kept telling him 

to "Get out of my house." [Reporter's Record, Vol. 5, Pg. 45 -47].

When Appellant left leaving blood all over her floor, Ms Roberson 

and her next-door neighbor went to find him and found him by the General 

Dollar Store. She knew where to look because the busses do not run late on 

weekends so she decided to look near the General Dollar Store where he was 

probably trying to get back on the bus. When they saw the Appellant she 

called the police. When they arrived she told the Deputy what had happened. 

[Reporter's Record, Vol. 5, Pg. 47 - 50].

Audra Shannon

Ms Shannon testified that she is also known by her nickname Shay 

and that the Appellant was her ex-boyfriend who she identified in court. She 
Page 10 of 27

said that she and the Appellant dated for about six to nine months after 

meeting at a homeless shelter downtown called the Bread of Life. They 

were still dating on October 12, 2013. They were not living together on 

October 12, 2013 and she was living with Cheryl Roberson. The 

Complainant was uncertain of the length of time she was living with Ms 

Roberson and expressed the time as one to two weeks. [Reporter's Record, 

Vol. 5, Pg 60 - 63]

Complainant testified that she had a conversation with Appellant on 

the morning of October 12, 2013. She stated: 

"I received a call from the Defendant. He was extremely upset 

because prior to that morning we had made an agreement since he 

was too busy and couldn't obtain his work badge -- his nametag 

before he left his job, his co-worker had given it to me to give to him. 

But before I could give it to him, he had already gotten on the bus 

and went to do other things.

So I took the name badge home with me, and we had agreed that the 

morning in question we were supposed to meet so that he could take 

his name badge and go to work."

She went on to explain that she did not agree to allow him to come 

over to get his badge:
Page 11 of 27

"Because the conversation that we had the time he called me and we 

were in the conversation he was already upset and told me forget

it, that he was just going to call off -- call in and call off of work and 

not to worry about it. The whole time that we were on the phone in 

conversation he was telling me that he was on his way to work,

which really his initial intentions and his ending goal was he was on 

his way to the residence where I was living at."

She explained that the initial lengthy conversation ended when he said 

he had to call someone and he would call back. The second conversation 

was short and ended right before he arrived at the house. During the second 

conversation he was calling her a "B" and a "H" and accused her of turning 

against him; that she was letting people get into her head and he wanted her 

to gather her belongings and leave with him immediately. She learned 

Appellant was at the residence when he unexpectedly knocked on the door . 

[Reporter's Record, Vol. 5, Pg 64 - 67].

Complainant explained that she, Ms Roberson and Ms Roberson's 

three grandchildren were in the room when Appellant knocked on the door 

and wanted her to come out. She refused to go out to meet Appellant 

because she didn't trust him. She said that she had seen him mad before; that 

he had serious anger and aggression issues so she was not going to put 
Page 12 of 27

herself in a position for him to do bodily harm to her. Appellant was given 

his name badge and was asked to leave the residence. [Reporter's Record, 

Vol. 5, Pg. 68 - 69].

Complainant continued stating that she heard Appellant say "you got 

to the count of three or I'm coming in." All of a sudden they heard a crash 

and Appellant came charging around the corner with a look she had never 

seen before. There was no emotion, no expression. She described it as "...

what you would consider a stone cold killer if you watch movies." Appellant 

came at her quickly giving her no time to react and started pounding on her 

with his fists knocking her to the floor continuing to hit her head and face 

seven or eight times before kicking her in her back her butt check and head. . 

[Reporter's Record, Vol. 5, Pg 69 - 71].

While she was being beaten Ms Roberson and her grandchildren were 

in the room. The oldest grandchild was curled up in a fetal position under the 

coffee table right next to where Complainant was laying while being beaten. 

Complainant also estimated she was beaten over a 15 to 20 minute period. 

Appellant stopped beating her, got up, took one step and turned around and 

took her wallet and cell phone and left. [Reporter's Record, Vol. 5, Pg 71 -

72].
Page 13 of 27

Complainant identified herself in State's Exhibit 5 showing bruises 

and contusions resulting from the beating she received at the hands of the 

Appellant, Weylin Alford. [Reporter's Record, Vol. 5, Pg. 76].

Defense Witnesses

The pro se Appellant produced no evidence in his defense. No 

witnesses were called by the Defense, nor did the Appellant take the witness 

stand to testify in his own defense. He simply rested and closed.[Reporter's 

Record, Vol. 5., Pg 85-85].

Summary

This Brief is prepared pursuant to the requirements for frivolous 

appeals as set forth in Anders v. California, 386 US 738,744, 18 LEd.2d 

493, 87 S Ct. 1396 (1967); Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. 

App. 1974); and High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978).

Appellate counsel sets forth three issue dealing with the Court's 

revocation of the appellant's right to self representation under Federal and 

State law; ordering the Appellant shackled during the punishment phase of 

the trial.
Page 14 of 27

Issues Presented

Issue Number 1

APPELLANT WAS DEPRIEVED OF HIS CONSITIUTIONAL RIGHT 

TO REPRESENT HIMSELF DURING THE PUNISHMENT PHASE OF 

THE TRIAL IN VIOLATION OF THE U.S. Const. amend. 6TH AND 

14TH. 

Argument and Authority

"The Sixth and Fourteenth Amendments of our Constitution guarantee 

that a person brought to trial in any state or federal court must be afforded 

the right to the assistance of counsel before he can be validly convicted and 

punished by imprisonment. This clear constitutional rule has emerged from a 

series of cases decided here over the last 50 years. The question before us 

now is whether a defendant in a state criminal trial has a constitutional right 

to proceed without counsel when he voluntarily and intelligently elects to do 

so. Stated another way, the question is whether a State may constitutionally 

hale a person into its criminal courts and there force a lawyer upon him, 

even when he insists that he wants to conduct his own defense. It is not an 

easy question, but we have concluded that a State may not constitutionally 

do so." Faretta v. California, 422 U.S. 806 (1975). "Although the right to 

self-representation is absolute, a waiver of the right to counsel will not be 
Page 15 of 27

lightly inferred, and the courts will indulge every reasonable presumption 

against the validity of such a waiver." Manley v. State, 23 S.W.3d 172, 173 

(Tex.App.--Waco 2000, pet. ref'd)(internal quotations omitted); see Johnson 

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 1023, 82 L.Ed. 1461 (1938), 

and Jordan v. State, 571 S.W.2d 883, 884 (Tex.Crim.App. 1978).

"The defendant, and not his lawyer or the State, will bear the personal 

consequences of a conviction. It is the defendant, therefore, who must be 

free personally to decide whether in his particular case counsel is to his 

advantage. And although he may conduct his own defense ultimately to his 

own detriment, his choice must be honored out of 'that respect for the 

individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337, 

350 -351 (BRENNAN, J., concurring)", Faretta v. California 422 U.S. 806.

If the record indicates a clear expression of the defendant's desire to 

proceed pro se, accompanied by careful and thorough admonishments from 

the trial court, the reviewing court should conclude that sufficient evidence 

exists to support allowing for waiver of counsel. See Barras v. State, 902 

S.W.2d 178, 180-81 (Tex.App.--El Paso 1995, pet. ref'd); Ford v. State, 870 

S.W.2d 155, 158 (Tex.App.--San Antonio 1993, pet. ref'd); Hobbs v. State, 

778 S.W.2d 185, 186-87 (Tex.App.--Beaumont 1985, no pet.); Logan v. 

State, 690 S.W.2d 311, 313-14 (Tex.App.--Dallas 1985, pet. ref'd). Although
Page 16 of 27

there has been no exact line of questioning set out to establish a knowing 

and intelligent waiver of the right to counsel, the trial court should at least 

inquire into the accused's age, background, education and experiences, in 

addition to making the accused aware of the advantages and disadvantages 

of self-representation. Calcarone v. State, 675 S.W.2d 785, 786 (Tex.App.--

Houston [14th Dist.] 1984, no pet.). Moreover, the court should make the 

accused aware of the general nature of the offense charged, aware that the 

accused must comply with the rules of evidence and criminal procedure, and 

aware that the accused will receive no special consideration by the court. Id. 

All of these admonishments should be sufficiently reflected within the 

record to enable the appellate court to make an accurate assessment of the 

decision of the accused. Johnson v. State, 760 S.W.2d 277, 279 

(Tex.Crim.App. 1988). See also Faretta v. California, 422 U.S. 806 (1975).

The trial court conducted a Faretta Hearing and complied with all of 

the above making the record in this case indicate a clear expression of the 

Appellant's desire to proceed pro se. Accordingly, the trial court granted 

Appellant his right to proceed pro se. [Reporter's Record, Vol. 3, Pg 5-33; 

Clerk's Record 112].
Page 17 of 27

While the jury was deliberating the Appellant's guilt or innocence on 

the morning of October 2, 2014, the court addressed the Appellant out of 

their presence:

THE COURT: 

Have a seat, Mr. Alford.

All right. Mr. Alford, it's my understanding that when you were 

brought up this morning Deputy Ojeda, who is one of my regular 

court bailiffs, found on you what appears to be some pills, a piece of 

wire, about a, I would say, 5 to 6-inch homemade jail shank, in 

addition to some other torn clothing that was used to secure it to your 

leg and other things like that.

In addition, speaking with Deputy Ojeda, he told me that your 

statement to him is that you've had it on you all of your court 

settings, which was -- I don't know if that's true because I know, 

according to Deputy Ojeda, he personally searches you when he --

when you've been on our docket, but you also stated that you had it 

on you yesterday.

Based on that statement, sir, you have now forfeited your right 

to represent yourself. You are now in the courtroom as a regular 

defendant.
Page 18 of 27

You now have your leg shackles on you.

Mr. Alford, I'll get to you in a moment.

You now have leg shackles on you. The leg shackles, you need 

to be careful that the jury does not hear them while you move around; 

but Mr. Aguirre is now your attorney.

If you would like to take this issue up on appeal, you're 

welcome to do so. But at this time you are considered a very high 

risk and a very high threat to the safety of the people in this 

courtroom. I am not going to tolerate any outbursts from you, any 

movements that are not necessary or anything else.

Do I make myself explicitly clear, Mr. Alford?

THE DEFENDANT: Yes, sir.

THE COURT: 

In addition, the ERT deputies will be in here. Whatever they 

feel is appropriate for the level of security now that they feel is 

necessary to protect everyone in this courtroom, including Mr. 

Aguirre, who was sitting next to you yesterday.
Page 19 of 27

So have a seat, sir. We have some read back. Mr. Aguirre has 

gone over that with you.

THE DEFENDANT: May I --

THE COURT: 

No, you may not. You are now represented by Mr. Aguirre. If 

you have any questions, you may address them through him. Have a 

seat.

Let's bring in the jury, please.

[Reporter's Record, Vol. 6, Pg 6 - 8].

Subsequently, a portion to the testimony of Ms. Roberson was read to 

the jury in response to their question, The jury retired and returned with a 

verdict of guilty. The trial continued to the punishment phase. Appellant 

made no further request or assertion of his right to self representation neither 

personally or through his attorney. 

Courts had been told that many criminal defendants representing 

themselves may use the courtroom for deliberate disruption of their trials. 

But the right of self-representation has been recognized from our beginnings 
Page 20 of 27

by federal law and by most of the States, including The State of Texas, and 

no such result has thereby occurred. Moreover, the trial judge may terminate 

self-representation by a defendant who deliberately engages in serious and 

obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337 Faretta v. 

California 422 U.S. 806 (1975) Of course, a State may - even over 

objection by the accused - appoint a "standby counsel" to aid the accused if 

and when the accused requests help, and to be available to represent the 

accused in the event that termination of the defendant's self-representation is 

necessary. See Faretta v. California 422 U.S. 806 (1975).

In United States v. Long, 597 F.3d 720 (5th Cir. 2010 No negative 

treatment in subsequent cases) in discussing the waiver of the right of self 

representation said, " [A] defendant can waive his Faretta rights, either by 

expressly requesting standby counsel's participation on a matter or by 

acquiescing in certain types of participation by counsel, even if the 

defendant insists that he is not waiving his Faretta rights .... [O]nce a pro se 

defendant invites or agrees to any substantial participation by counsel, 

subsequent appearances by counsel must be presumed to be with the 

defendant's acquiescence, at least until the defendant expressly and 

unambiguously renews his request that standby counsel be silenced .... 
Page 21 of 27

[S]tandby counsel's participation [must] be ‘ over the defendant's objection’ 

in order to erode the defendant's Faretta rights." 

In the case at bar the court terminated the Appellant's right of self 

representation based on the discovery of a "shank" on the person of the 

Appellant. This discovery was made while the Appellant was in the custody 

of the Harris County Sheriff's Office in the holdover cell and not in the 

courtroom. The weapon was taken from the Appellant and represented no 

threat to anyone in the courtroom. During the entire trial proceedings 

appellant was respectful to the court and his conduct was normal, reserved 

and appropriate to the circumstances in the courtroom. His conduct was not 

obstructionist in any manner. His conduct in the courtroom did not rise to 

the level of deliberately engaging in serious and obstructionist misconduct

authorizing termination of Appellant's constitutional right to self 

representation under the U.S. Const. amend. 6th and 14th, and Tex. Const. 

art. 1 § 10.

However, Appellant placed himself inside the courtroom with the 

shank based on his alleged statement to Deputy Ojeda that he, Appellant, 

"...had it on him yesterday..." thereby raising his conduct to the level of 

deliberately engaging in serious and obstructionist misconduct authorizing 

termination of Appellant's constitutional right to self representation. 
Page 22 of 27

Appellant's right of self representation under the U.S. Const. amend. 6th and 

14th, and Tex. Const. art. 1 § 10 were waived.

Issue Number 2

APPELLANT WAS DEPRIEVED OF HIS CONSITIUTIONAL RIGHT 

TO REPRESENT HIMSELF DURING THE PUNISHMENT PHASE OF 

THE TRIAL IN VIOLATION OF THE Tex. Const. art. 1 § 10.

Argument and Authority

The foregoing argument and authority presented above in the 

Argument and Authority for Issue Number 1 is incorporated herein with 

particular attention to the Texas case law cited.

Issue Number 3

APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE U.S. 

CONST. AMEND. 5TH AND 14TH WERE VIOLATED WHEN THE 

TRIAL COURT ORDERED HIM TO BE SHACKLED IN FRONT OF 

THE JURY DURING THE PUNISHMENT PHASE.
Page 23 of 27

Argument and Authority

The United States Supreme Court has held that the appearance of a 

defendant in shackles before a jury during a trial can violate the defendant's 

Fifth and Fourteenth Amendment rights to due process. Deck v. Missouri, 

544 U.S. 622, 629–34 (2005). The Court reasoned that "visible shackling 

undermines the presumption of innocence and related fairness of the 

factfinding process[, ] . . . can interfere with the accused's ability to 

communicate with his lawyer" and "participate in his own defense, " and 

"affronts the dignity and decorum of judicial proceedings that the judge is 

seeking to uphold." Id. at 630–31. 

'[A]ll efforts should be maintained to prevent the jury from seeing the 

defendant in shackles, except where there has been a showing of exceptional 

circumstances or a manifest need for such restraint.' Long v. State, 823 

S.W.2d 259, 282 (Tex. Crim. App. 1991). It is within the discretion of the 

trial judge as to whether a defendant shall be tried in handcuffs or shackles, 

and the trial court's decision is reviewed for abuse of that discretion. Id. 

(noting that "the record must clearly and affirmatively reflect the trial judge's 

reasons therefor").

Courts have recognized a narrow exception to this rule if a trial court 

determines that there is a particular need for shackling the defendant, such as 
Page 24 of 27

a demonstrated propensity to attempt escape or assault others in the 

courtroom. Id. (citing Deck, 544 U.S. 622, 627, 632 (2005), Long v State, 

823 S.W.2d 259, 282. The trial court’s determination is reviewed under an 

abuse of discretion standard. Long, 823 S.W.2d at 282.

A trial judge confronted by a defendant's disruptive conduct can exercise 

discretion to meet the circumstances of the case, and though no single 

formula is best for all situations, there are at least three constitutionally 

permissible approaches for the court's handling of an obstreperous 

defendant: (1) bind and gag him as a last resort, thereby keeping him 

present; (2) cite him for criminal or civil contempt; or (3) remove him from 

the courtroom, while the trial continues, until he promises to conduct himself 

properly. Illinois v. Allen, 397 U.S. 337 (1970).

The Fifth and Fourteenth Amendments of the United States 

Constitution prohibit the use of physical restraints visible to the jury unless 

the trial court in its discretion finds that they are justified by an essential 

State's interest such as physical security, escape prevention, or courtroom 

decorum. Deck v. Missouri, 544 U.S. 622, 628, 125 S.Ct. 2007, 161 L.Ed.2d 

953 (2005) . Courts have held that some circumstances justify the use of 

restraints during trial, including situations where an accused expressed his 

intention to escape, made threats of physical violence, resisted being brought 
Page 25 of 27

to court, repeatedly interrupted the court proceedings, attempted to leave the 

courtroom, or engaged in other egregious conduct. Cedillos v. State, 250 

S.W.3d 145 (Tex.App.-Eastland 2008) . 

When an appellant complains of the use of shackles, it is first 

determined if the trial court abused its discretion by allowing appellant to be 

shackled. If so,it must then be determine whether appellant suffered harm as 

a result. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App.1991) .

In the case at bar, Court choose to employ the first of the Illinois v 

Allen options; to bind and gag him as a last resort, thereby keeping him 

present in the court room. The court choose not to gag Appellant. The court 

also utilized the services of the ERT deputies as a security precaution. 

[Reporter's Record, Vol. 6, Pg 6 - 8].

The chief feature that distinguishes the use of identifiable security 

officers from courtroom practices that might be found inherently prejudicial 

is the wider range of inferences that a juror might reasonably draw from the 

officers' presence. While shackling and prison clothes are unmistakable 

indications of the need to separate a defendant from the community at large, 

the presence of guards at a defendant's trial need not be interpreted as a sign 

that he is particularly dangerous or culpable. Jurors may just as easily 

believe that the officers are there to guard against disruptions emanating 
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from outside the courtroom, or to ensure that tense courtroom exchanges do 

not erupt into violence. Indeed, it is entirely possible that jurors will not infer 

anything at all from the presence of the guards. If they are placed at some 

distance from the accused, security officers may well be perceived more as 

elements of an impressive drama than as reminders of the defendant's special 

status. Our society has become inured to the presence of armed guards in 

most public places; they are doubtless taken for granted so long as their 

numbers or weaponry do not suggest particular official concern or alarm. 

See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978). U.S. v. Burch, 48 

F.3d 1233 (10th Cir. 1995 No negative treatment in subsequent cases). See 

also Holbrook v. Flynn, 475 U.S. 560, 106 (1986), Deck v Missouri, 544 

U.S. 622, 658-659 .

By his own statement to Deputy Ojeda Appellent admitted that he had 

had the shank on him in court the previous day. The court was then 

authorized to employ the extra ordinary use of shackles and the ERT 

deputies for increased security and protection of all those in the court room. 

There was no violation of Appellant's constitutional rights.

CONCLUSION

Based of the undersigned attorney’s review of the record in this case, 

including the many misguided rambling motions filed by the appellant, legal 
Page 27 of 27

research conducted by said attorney and the arguments presented 

hereinabove, the appeal filed in this cause is wholly lacking in meritorious 

issues and is frivolous.

Respectfully submitted

_________________________

Glenn J. Youngblood

Attorney at Law

5555 West Loop South, Ste. 395

Bellaire, Texas 77401

(713) 432-1013 [Voice/FAX]

SBOT 22217400

glenlaw@att.net