Opinion issued August 26, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-01042-CR

———————————

GBOWEH DICKSON GEORGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1302726

O P I N I O N

A jury found appellant, Gboweh Dickson George, guilty of the offense of 

murder1 and assessed his punishment at confinement for seventy-five years. In six

 1 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011). 
2

issues, appellant contends that he received ineffective assistance of counsel and the 

trial court erred in not conducting an informal inquiry into his competency to stand 

trial, excluding him from the courtroom during trial, not instructing the jury to 

disregard his absence from trial, denying his motion for mistrial, and admitting 

certain photographs into evidence. 

We affirm.

Background

Jaleah “Juju” Carter testified that on the night of April 12, 2011, appellant, 

who was her neighbor at an apartment complex, came to her door with a police 

officer and accused her of having been involved in burglarizing his car. After 

Carter denied any involvement, appellant and the officer left. Shortly thereafter, 

Carter and Justin Chenier, while sitting outside on the steps of the apartment 

building, saw appellant “pacing” near his car. Minutes later, appellant drove his 

car up to Carter with his window down. After Carter and Justin saw that he was 

holding a shotgun, they ran into Carter’s apartment, closed the door, and turned off 

the lights. As appellant began shooting through the door, walls, and windows of 

the apartment, Carter and Justin tried to move children, who had been sleeping on 

the living room floor, to the back of the apartment. After firing several rounds, 

appellant left. 
3

Carter and Justin then saw that appellant had shot the complainant, an 

eleven-year-old boy, in the head. He died at the scene. Appellant also shot the 

complainant’s nine-year-old brother in the knee and torso, and he shot Carter in the 

wrist and thigh.

The trial court admitted into evidence appellant’s statement to law 

enforcement. In his statement, appellant asserted that he had fired his weapon

because he saw Chenier “flash a weapon” or “some kind of steel object.” And he 

kept firing into the apartment because someone inside the apartment had

“flashed . . . a weapon or something” through a bedroom window.

At a pretrial hearing, conducted three weeks before trial,

2 appellant, while

the State was reciting the facts of the case, interrupted as follows:

[The State]: Just as a point of a fact, Judge, they did search the 

domicile. So, even—we don’t contend that that 

would be a basis for a motion to dismiss; but there 

was—did—

[Appellant]: You’re lying.

[The State]: —make entry and did recover multiple projectiles 

and evidence within the—

[Appellant]: You’re lying.

THE COURT: I beg your pardon? I beg your pardon?

[Appellant]: She’s lying.

THE COURT: Well, I guess that will come out at trial, won’t it; 

but we’re not trying the case here today.

 2

 This hearing took place before the Honorable Shawna L. Reagin.
4

The trial court noted that although it had previously granted defense 

counsel’s motion for appellant to undergo a competency evaluation, an

examination had not been conducted. Defense counsel explained that she had 

moved for an evaluation “in an abundance of caution” after appellant had made a 

“disturbing” remark to his mother regarding the prosecutor.3

 However, appellant 

had since informed counsel that his comment was a joke and he “didn’t mean it.” 

The trial court then asked appellant whether he wished to be examined for 

competency or if it needed to take action regarding any mental health issues. 

Appellant responded, “No. I’m competent.”

Later during the hearing, appellant, while the State was reciting certain facts 

of the case, again interrupted and accused the prosecutor of “lying.” The trial court 

instructed appellant to “be quiet,” and it admonished him, “Now, listen to me. 

When we have this trial, I’m not going to be having any of these outbursts. 

You’ve got to behave appropriately during this trial.” And appellant responded, 

“Yes, ma’am.” The trial court further cautioned appellant, “[Y]ou don’t help 

yourself at all when you start shouting things out or acting out of control.” And 

appellant responded, “I understand.”

At trial, appellant sat through voir dire without incident. On the second day 

of trial, when Carter testified that she first met appellant when she saw him 

 3 The substance of the remark is not in the record. 
5

walking down an apartment-complex sidewalk and asked him for a cigarette, 

appellant interrupted with, “I don’t smoke cigarettes. Stop lying.” The trial court 

admonished appellant that he could not testify unless he later chose to take the 

stand. Later, the following discussion took place:

[The State]: . . . where on here is [appellant’s] apartment?

[Carter]: It’s either up here or up here. I don’t know which 

one it is, but I know it’s on the second floor.

. . . . 

[Def. Counsel]: Your Honor, may we approach?

[Appellant]: You just said you knew where I lived. You just 

said it.

THE COURT: [Appellant]—remove the jury please.

(Jury leaving courtroom.)

[Appellant]: You just said you knew where I lived. You just 

said it. You just said it. Stop lying. You just said 

it.

THE COURT: [Appellant], settle down. You be quiet, 

[appellant]. Settle down right now. 

(Jury out.)

THE COURT: Now, [appellant], we had this conversation. If you 

continue to disrupt this trial, two things you are 

doing as a disservice to yourself. One is, if you 

keep it up, the first thing is I will have to remove 

you from this courtroom. That means that you 

would not be able to consult with your attorney, 

who is [sic] her obligation to cross-examine folks. 

You understand? She gets to ask the questions, not 

you.

If you disrupt this courtroom one more time, then I 

may have to ask you to—the bailiff to remove you 

from the courtroom, continue this trial. I do not 
6

want to do that. I think that is to your detriment. 

That hurts your case.

The second thing is, the more you disrupt in front 

of this jury, the more you taint the jury. By that I 

mean is, they’re looking at you thinking maybe 

you might be a violent person. Do you 

understand?

(No response.)

THE COURT: Answer my question, [appellant]. Do you 

understand?

[Appellant]: (Nods head.)

THE COURT: All right. Now, can I have your promise that you 

will not disrupt this trial again?

[Appellant]: Yes. Sorry, your Honor.

THE COURT: Thank you, [appellant]. I appreciate that. And 

let’s try to—you try to assist your attorney in the 

representation of you in this trial by not speaking 

out. You will have an opportunity if you so desire 

to testify, and your lawyer will have the 

opportunity to cross-examine these witnesses. All 

right. I have your promise, so let’s start again.

After the jury returned and the State continued its examination of Carter, 

defense counsel, in a discussion at the bench, requested a recess to talk with 

appellant because she had noted that he was becoming “extremely agitated.” The 

State also noted that appellant was “twisting and grating his hands.” The trial court 

granted a recess for defense counsel to consult with appellant in the holdover cell. 

After the recess, but before the jury returned to the courtroom, the trial court 

asked counsel to inform it of any disruptiveness by appellant prior to trial. The 

State explained that appellant, as noted above, had interrupted the pretrial hearing, 
7

received a lengthy admonishment from the trial court, and agreed not to be 

disruptive during trial. Defense counsel then requested, and the trial court granted,

additional time for her to consult with appellant. 

Subsequently, while the jury was still out, the trial court announced that the 

bailiff had informed it that appellant had refused to come out of the holdover cell. 

Appellant was then brought before the trial court, and the following exchange took 

place:

THE COURT: [Appellant], from the outset I have been trying to 

explain to you what your conduct can do to poison 

this jury in determinig not from the evidence that’s 

been presented of your guilt, but because of your 

actions. You have—I’ve understood a prior record 

of a pre-trial conference, that you disrupted that. 

You have been disrupting this trial by shouting out 

loud, glaring at the witness, and otherwise totally 

disrupting this trial to the point where I’d have to 

remove the jury.

I indicated to you earlier, and I still mean it, 

[appellant], I’m very concerned for your 

representation. I’m totally and—concerned with 

regard to what this jury might do watching you[]

disrupting this proceeding. In other words, I’m

very concerned that they might ignore the evidence 

in the case and find you guilty based upon your 

disrupting this trial. You see what I’m saying? 

Can you hear me, [appellant]?

(No response.)

THE COURT: You gave me your promise the last time that I 

removed the jury that you could remain quiet and 

assist your attorney in representing you. You gave 

me your promise, [appellant]. Do you understand?
8

(No response.)

THE COURT: [Appellant], I need for you to answer me. I have 

done nothing but respect you and I expect you to 

do the same for me.

(No response.)

THE COURT: Answer my question. Can you hear me, 

[appellant]?

(No response.)

THE COURT: Let the record reflect that [appellant] has got his 

head down, he is handcuffed, he is shaking, he is 

mumbling, but he is not answering the Court.

[Def. Counsel]: Your Honor, if I may. At this point in time, looking

at [appellant’s] demeanor, his inability to 

communicate with me, his inability to 

communicate with the Court, I would ask for a 

competency hearing to see if he is competent 

enough to continue with the trial and in capacity.

THE COURT: That’s denied. That’s denied. I don’t have any—

any evidence whatsoever other than him acting out 

in this trial about whether or not he is competent 

to assist you in this trial. 

[Appellant], I am trying to do everything in this 

Court’s power to allow you to sit at [the] counsel 

table and assist your attorney. And I have watched 

him assisting you throughout this trial. How much 

that was, I don’t know, and I don’t really want to 

get into it, but I have no evidence from any source 

whatsoever except him acting out whether or not 

he is competent.

[Appellant], I’m going to ask you one more time, 

sir, please help me help yourself. Can you sit there 

and not disrupt and shout out at these witnesses 

and behave yourself? Can you do that? Can you 

help me help you?

(No response.)
9

THE COURT: Let the record reflect that [appellant] refuses to 

answer my question. Let the record reflect further 

since I have no confidence whatsoever that when 

we restart this trial that [appellant] will not 

continually disrupt the trial by shouting out to the 

witnesses in an aggressive and loud manner, now 

I’m going to remove him from this trial. Your 

objection, please.

[Def. Counsel]: Yes. I would object under the confrontation 

clause, your Honor. Also under 33.03 of the Code 

of Criminal Procedure, and also under his Fifth

Amendment right to testify, because he was 

planning on testifying at this trial, and his removal, 

of course, would make that difficult if not 

impossible.

THE COURT: Very well. I understand your objections, and 

they’re duly noted for the record. . . .

. . . .

Now, [appellant], I know you can hear me. Here’s 

the situation, I’m going to have to order that you 

are removed from this courtroom to sit in the 

holdover cell. At any time that you wish to come 

back into this courtroom to sit by your attorney 

and assist your attorney in the representation of 

you in this murder trial, we will be happy to have

you back. Do you have anything to say at this 

time, [appellant]?

(No response.)

. . . .

[Def. Counsel]: Your Honor, at this point I would ask for a 

mistrial. I think he has tainted the jury to this 

point in time that they will be making a decision 

based on his conduct as opposed to making a 

decision based on the evidence.

THE COURT: Well, that’s a concern of mine also, but your

motion is denied at this time. Very well. One last 

time, [appellant] can you give me your assurances
10

that you will not disrupt this trial and [will] assist 

your attorney?

(No response.)

THE COURT: Very well. Let the record reflect that [appellant] is 

refusing to answer my question. Remove him 

from the courtroom. Thank you.

[Def. counsel]: And your Honor, if I may, when the jury is seated, 

if you would give them an instruction or an 

admonishment if possible to try to cure the taint at 

this point in time.

THE COURT: Are you sure you want me to do that and call 

attention to it? I don’t care. It’s what you want to 

do.

[Def. counsel]: Yes, please.

THE COURT: All right.

(Defendant exits the courtroom.)

THE COURT: I tell you what, . . . I decided not to do that.

[Def. counsel]: Well, . . . perhaps what would be best is an 

instruction to not consider his absence from the 

trial.

THE COURT: I don’t think so.

[Def. counsel]: Okay.

(Emphasis added.) 

The bailiff then placed appellant in a holdover cell where he could hear the 

proceedings through an audio system. The trial court instructed the bailiff to ask 

appellant every thirty minutes to an hour whether he wished to come back into the 

courtroom and discuss with the trial court whether he could conduct himself 

appropriately. The jury then returned, and the trial continued.
11

Later in the afternoon, defense counsel, outside the jury’s presence, advised 

the trial court that she had attempted to speak with appellant during a break, but he

would not respond when she asked whether he wanted to return to the courtroom.

After another break, defense counsel notified the trial court that she had spoken 

with appellant, who had indicated that he did not wish to participate in the trial,

talk to her, or “talk about the case or the situation.” 

The next morning, before proceedings resumed in front of the jury, appellant 

told the trial court that he wished to participate in the trial. The trial court twice 

asked appellant whether he could refrain from disrupting the proceedings. After 

appellant refused to answer, the trial court sent him to the holdover cell, and the 

trial continued. Later that day, appellant was again brought before the trial court 

and asked whether he wished to participate. The trial court cautioned appellant 

against missing the trial, but explained that it could not allow him to disrupt the 

proceedings. Again, appellant refused to answer. The trial court announced that it

had no choice but to send appellant back to the holdover cell where he could listen 

to the trial.

Defense counsel then advised the trial court that she had been unable to 

communicate with appellant since the previous day, and he had not responded to 

her questions concerning the evidence or whether he still planned to testify. 

Counsel stated that she wished to “renew the competency issue.” The trial court 
12

asked whether there was any evidence of appellant’s incompetency other than his 

“simply refusing to answer” her or the trial court. After defense counsel responded 

in the negative, the trial court denied her request. 

After the State rested, the trial court, outside the presence of the jury, asked 

defense counsel to consult with appellant to determine whether he wished to 

testify. The trial court noted on the record that appellant, after being brought 

before the trial court, “once again made outbursts” before it could ask him any 

questions. The trial court then announced that it was “not confident that 

[appellant] would [] refrain from interrupting the orderly process of this trial.” 

And the State observed that it was apparent that appellant had been listening to the 

proceedings because his outbursts related to the matters raised in the courtroom. 

The State asserted, thus, it was apparent that appellant had “been able to perceive 

what has been going on out here.” The defense then rested.

The next day, after the jury found appellant guilty, but prior to the 

commencement of the punishment phase, the trial court asked appellant whether he 

wished to participate. Appellant answered, “Yes, I wish to participate.” And he 

indicated that he wished to testify. During his testimony, appellant offered 

numerous non-responsive answers and answered beyond the questions asked. At 

the close of questioning, appellant refused to step down and continued to speak. 

After removing the jury from the courtroom, the trial court asked appellant whether
13

he would be quiet during the remainder of the proceeding, and appellant agreed. 

Defense counsel then moved for a mistrial, asserting that the jury had been tainted 

by appellant’s conduct, which the trial court denied.

During the State’s closing at punishment, appellant continued to interrupt, 

accusing Carter of being affiliated with a gang. After again removing the jury, the 

trial court stated, 

Let the record reflect that [appellant] had to be forcibly removed from 

the courtroom, in the presence of the jury, after repeated 

admonishments. While this Court has attempted to protect 

[appellant’s] rights from the onset of this trial, it is obvious to the 

Court that he cannot conduct himself in a manner that will not 

interrupt the orderly process of the punishment phase, and this Court 

cannot place anyone that is within this courtroom in danger, including 

the officers, so therefore I’m not going to permit him to be back out 

here until he is sentenced.

After the jury assessed punishment, the trial court released the jury, had appellant

brought out, and sentenced him.

Competency

In his first issue, appellant argues that the trial erred in not making an 

informal inquiry into his competency to stand trial and not further ordering a 

formal competency examination because he engaged in frequent outbursts, before 

and during trial, and refused to communicate with his attorney and the trial court.

We review challenges to the adequacy of a trial court’s informal competency 

inquiry, and its finding following an informal competency inquiry, for an abuse of 
14

discretion. See Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008); 

Thomas v. State, 312 S.W.3d 732, 736–37 (Tex. App.—Houston [1st Dist.] 2009, 

pet. ref’d).

“A criminal defendant who is incompetent may not be put to trial without 

violating due process.” Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 

2013). “‘[A] person whose mental condition is such that he lacks the capacity to 

understand the nature and object of the proceedings against him, to consult with 

counsel, and to assist in preparing his defense, may not be subjected to trial.’” Id.

at 688–89 (quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 

(1975)). Thus, a defendant is incompetent to stand trial if he does not have a 

sufficient present ability to consult with his lawyer with a reasonable degree of 

rational understanding or a rational, as well as factual, understanding of the 

proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (Vernon 

2006). Upon suggestion that a defendant may be incompetent, a trial court shall 

determine by “informal inquiry” whether there is “some evidence” from any source 

that would support a finding that the defendant may be incompetent to stand trial. 

Id. art. 46B.004(c) (Vernon Supp. 2013); see Druery v. State, 412 S.W.3d 523, 538 

(Tex. Crim. App. 2013) (stating informal inquiry intended to determine whether

issue of competency sufficiently raised such that formal hearing should be held). 

However, the fact that a defendant is mentally ill does not by itself mean that he is 
15

incompetent; nor does the fact that he obstinately refuses to cooperate with his 

counsel or a trial court. Turner, 422 S.W.3d at 691.

Either party may suggest by motion, or a trial court may suggest on its own 

motion, that a defendant may be incompetent to stand trial. TEX. CODE CRIM.

PROC. ANN. art. 46B.004(a). A suggestion of incompetence “may consist solely of 

a representation from any credible source.” Id. art. 46B.004(c-1). “A further 

evidentiary showing is not required to initiate the inquiry, and [a] court is not 

required to have a bona fide doubt about the competency of [a] defendant.” Id. 

“Evidence suggesting the need for an informal inquiry may be based on 

observations made in relation to one or more of the factors described by Article 

46B.024 or on any other indication that the defendant is incompetent within the 

meaning of Article 46B.003.” Id. The factors include whether the defendant can: 

“(A) rationally understand the charges against [him] and the potential 

consequences of the pending criminal proceedings; (B) disclose to counsel 

pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal 

strategies and options; (D) understand the adversarial nature of criminal 

proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify.” Id. art. 

46B.024(1) (Vernon Supp. 2013). 

In conducting its informal inquiry, a trial court must consider only the

evidence tending to show incompetency, “putting aside all competing indications 
16

of competency, to find whether there is some evidence, a quantity more than none 

or a scintilla, that rationally may lead to a conclusion of incompetency.” Ex parte 

LaHood, 401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013). A trial court’s first-hand 

factual assessment of a defendant’s competency is entitled to great deference on 

appeal. Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App. 2004).

If, after its informal inquiry, the trial court determines that evidence exists to 

support a finding of incompetency, the trial court “shall appoint” an expert to 

examine the defendant and “shall hold” a formal competency trial to determine 

whether the defendant is incompetent to stand trial. See TEX. CODE CRIM. PROC.

ANN. arts. 46B.005, 46B.021(b) (Vernon 2006); Turner, 422 S.W.3d at 692. 

Appellant asserts that the trial court did not engage in an “informal inquiry” 

into his competence. He argues that it was required to do so because his “bizarre 

disruptions,” “physical shaking,” and “outbursts,” before and during trial, as well 

as his failure to communicate with the trial court and counsel, “supported a 

finding” that he “did not have sufficient present ability to consult with his lawyer 

or understand the proceedings against him.” 

The record shows that defense counsel requested a “competency hearing”

based on appellant’s demeanor and his “inability to communicate” with counsel 

and the trial court. Thus, the trial court was required to determine by informal 

inquiry whether there was some evidence from any source that would support a 
17

finding that appellant might be incompetent to stand trial. See TEX. CODE CRIM.

PROC. ANN. art. 46B.004(c); see also id. art. 46B.004(c-1) (providing that

suggestion of incompetence “may consist solely of a representation from any 

credible source,” further evidentiary showing not required, and trial court “not 

required to have a bona fide doubt about the competency of the defendant”). 

Here, in assessing appellant’s competence to stand trial, the trial court noted 

on the record that it had “watched [appellant] assisting” counsel “throughout” trial 

and did not have “any evidence whatsoever, other than him acting out,” that he was 

not competent. Appellant’s obstinate refusal to communicate with his trial counsel 

and the trial court did not, by itself, constitute incompetence. See Turner, 422 

S.W.3d at 691. When defense counsel later stated that she wished to “renew the 

competency issue,” the trial court asked whether there was any evidence of 

appellant’s incompetency other than his “simply refusing to answer” her or the trial 

court. After defense counsel responded in the negative, the trial court denied her 

request.

The trial court had the opportunity to observe appellant’s conduct first-hand

and supplement its observations with its inquiry to defense counsel. See Ross, 133 

S.W.3d at 627 (stating trial court’s first-hand factual assessment of defendant’s 

competency entitled to “great deference” on appeal); see, e.g., Jackson v. State, 

391 S.W.3d 139, 142 (Tex. App.—Texarkana 2012, no pet.) (concluding trial 
18

court’s inquiry to defense counsel coupled with its own observations of defendant 

constituted sufficient informal inquiry into defendant’s competence). In making its 

informal inquiry, the trial court was not required to follow specific protocols. See, 

e.g., Teal v. State, No. 01-10-00506-CR, 2011 WL 6140676, at *2 (Tex. App.—

Houston [1st Dist.] Dec. 8, 2011, pet. ref’d) (mem. op, not designated for 

publication) (“As its name suggests, an ‘informal inquiry’ does not have specific 

formal requirements.”). 

Appellant asserts that his numerous interruptions during court proceedings

and his refusal to answer counsel and the trial court when prompted are probative 

of his incompetence to stand trial. However, disruptive courtroom conduct and a 

general failure to cooperate are not probative of incompetence to stand trial. Burks 

v. State, 792 S.W.2d 835, 840 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). 

“If such actions were probative of incompetence, one could effectively avoid 

criminal justice through immature behavior.” Id. Further, appellant’s refusal to 

communicate with counsel and the trial court did not overcome the presumption of 

his competence. See, e.g., White v. State, No. 02-12-00087-CR, 2013 WL 

4210827, at *8 (Tex. App.—Fort Worth Aug. 15, 2013, no pet.) (mem. op., not 

designated for publication) (holding defendant’s refusal to return to courtroom may 

have been disruptive, but not probative of incompetence); DeWitt v. State, No. 05-

12-00583-CR, 2013 WL 3389055, at *2 (Tex. App.—Dallas July 3, 2013, no pet.) 
19

(mem. op., not designated for publication) (stating defendant’s failure to 

communicate with counsel did not demonstrate inability to communicate).

Here, although appellant’s obstinance and refusal to cooperate constituted

“violations of court decorum,” it did not constitute evidence of an inability to 

factually appreciate the proceedings or to communicate with counsel and the trial 

court. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (holding 

defendant’s unruly and disruptive courtroom demeanor not probative of his 

competence to stand trial); see also Ex parte LaHood, 401 S.W.3d at 51–56

(concluding defendant’s “multiple outbursts,” “continu[ing] to talk when he was 

not supposed to,” and refusal to “answer questions as he was directed” did not 

indicate incompetency). 

Moreover, appellant’s rude behavior did not consist of any bizarre or 

unusual rants that might signal incompetence. Rather, his interruptions were 

“timely, topical, and logically related to the questions and answers offered during 

the examination of other witnesses.” See Moore, 999 S.W.2d at 395; Lawrence v. 

State, 169 S.W.3d 319, 322–23 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting 

defendant’s rambling and nonresponsive answers to questions did not constitute 

evidence of incompetency because his answers revealed “he simply wanted his day 

in court and wanted an opportunity to tell his story his way”); see, e.g., Lopez v. 

State, No. 04-12-00568-CR, 2013 WL 6533183, at *7 (Tex. App.—San Antonio 
20

Dec. 11, 2013, no pet.) (mem. op., not designated for publication) (noting,

although defendant refused to cooperate with counsel and interrupted proceedings 

by speaking out loud, nothing supported “a rational inference” his conduct was “‘a 

product of mental illness rather than mere obstinacy’”) (quoting Turner, 422 

S.W.3d at 696)).

We hold that the trial court did not err in concluding that there was no 

evidence to support a finding that appellant was incompetent to stand trial. See

Luna, 268 S.W.3d at 600; Thomas, 312 S.W.3d at 736–37. Further, because the 

trial court did not conclude through its informal inquiry that there was any 

evidence of appellant’s incompetency to stand trial, we hold that it was not 

required to conduct a formal competency hearing. See TEX. CODE CRIM. PROC.

ANN. art. 46B.005. 

We overrule appellant’s first issue.

Exclusion from Trial

In his second issue, appellant argues that the trial court erred in excluding

him from the courtroom because he did not insult the court or threaten anyone, 

and, although he was disruptive, it was not necessary to remove him. See U.S.

CONST. amend. V, VI, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN.

art. 33.03 (Vernon 2006).
21

A defendant has a constitutional and statutory right to be present throughout

his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970); TEX.

CODE CRIM. PROC. ANN. art. 33.03. A trial court may, however, decide that it is 

necessary to remove an unruly defendant from the courtroom and continue the trial 

in his absence unless and until he “promise[s] to conduct himself in a manner 

befitting an American courtroom.” Allen, 397 U.S. at 345–46, 90 S. Ct. at 1062. 

Thus, a defendant may forfeit his right to remain in the courtroom by engaging in 

misconduct. Id. at 342–43, 90 S. Ct. 1060–61; see also TEX. CODE CRIM. PROC.

ANN. art. 33.03 (allowing voluntary absence after voir dire in jury trial). 

Appellant was present throughout voir dire and the first day of trial without 

incident. Beginning the second day of trial, he, on several occasions, interrupted 

witness testimony. He then repeatedly refused to answer the trial court’s questions

regarding whether he intended to continue engaging in such misconduct. Prior to 

his removal, the trial court repeatedly warned appellant that he would be removed 

from the courtroom if he persisted in his unruly conduct. See Allen, 397 U.S. at 

342–43, 90 S. Ct. at 1060–61. 

Once removed, the trial court ensured that appellant was able to hear the trial 

while he was in the holdover cell, and it directed the bailiff to ask appellant, every 

thirty minutes to an hour, whether he wished to return to the courtroom. 

Throughout the proceedings, the trial court directed defense counsel to consult 
22

with appellant about returning to the courtroom. Further, on numerous occasions, 

the trial court encouraged appellant to return to the courtroom, admonished him 

concerning the dangers of missing his trial, and attempted to assess whether 

appellant would agree to conduct himself in an orderly manner. See id. 

Accordingly, we hold that the trial court did not err in excluding appellant

from the courtroom. See id. at 346, 90 S. Ct. at 1062; Ramirez v. State, 76 S.W.3d 

121, 128–30 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding trial court 

acted within its discretion in removing defendant from courtroom when, despite 

having been warned he would be expelled from courtroom if disruptive behavior 

continued, defendant insisted behavior not disruptive and did not assure trial court 

he would remain silent). 

We overrule appellant’s second issue.

Mistrial

In his third issue, appellant argues that the trial court erred in denying his 

motion for a mistrial because his misconduct tainted the jury against him. 

A mistrial is appropriate only in extreme circumstances for a narrow class of 

highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. 

Crim. App. 2009). We review a trial court’s denial of a motion for mistrial for an 

abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004);

Juarez v. State, 409 S.W.3d 156, 166 (Tex. App.—Houston [1st Dist.] 2013, pet. 
23

ref’d). Whether a mistrial is required depends on the particular facts of the case. 

Ocon, 284 S.W.3d at 884. A trial court should grant a mistrial “only when residual 

prejudice remains” after less drastic alternatives are explored, such as instructing 

the jury “to consider as evidence only the testimony and exhibits admitted through 

witnesses on the stand.” Id. at 884–85. 

Moreover, a trial court does not abuse its discretion in denying a mistrial 

based on the defendant’s own misbehavior. Molina v. State, 971 S.W.2d 676, 682 

(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding trial court did not 

abuse its discretion in denying mistrial based on defendant’s own outbursts); see,

e.g., Granados v. State, No. 01-10-00547-CR, 2011 WL 5026406, at *5 (Tex. 

App.—Houston [1st Dist.] Oct. 20, 2011, pet. ref’d) (mem. op., not designated for 

publication) (noting trial court not required to “reward” defendant with mistrial 

based on his own disruptive outbursts during trial). A defendant cannot be 

permitted by his own disruptive behavior to avoid being tried. Allen, 397 U.S. at 

346, 90 S. Ct. at 1062.

Accordingly, we hold that the trial court did not err in denying appellant’s 

motion for mistrial, which was predicated on his own misconduct.

We overrule appellant’s third issue.
24

Jury Instruction

In his fourth issue, appellant argues that the trial court erred in denying his 

request that the jury be instructed not to consider his absence from the courtroom

because such an instruction would have been proper during the guilt phase of trial 

and the State exacerbated the error by encouraging the jury to consider it in 

determining his sentence. In support of his argument, appellant relies on People v. 

Sully, 812 P.2d 163 (Cal. 1991).

Appellant has provided no binding authority requiring a trial court to instruct 

a jury to disregard a defendant’s absence from the courtroom after his removal for

his own disruptive behavior. And we note that a defendant may not “create 

reversible error by his own manipulation.” See Beasley v. State, 634 S.W.2d 320, 

321 (Tex. Crim. App. 1982). Accordingly, we hold that the trial court did not err

in denying appellant’s request that it instruct the jury to disregard his absence after 

his own disruptive behavior required his removal from the courtroom. 

We overrule appellant’s fourth issue.

Ineffective Assistance of Counsel

In his fifth issue, appellant argues that his trial counsel’s performance was 

deficient because counsel failed to request, or object to the lack of, a jury 

instruction in the trial court’s charge to disregard his in-court behavior and absence 

from trial.
25

To prove a claim of ineffective assistance of counsel, appellant must show 

that (1) his trial counsel’s performance fell below an objective standard of 

reasonableness and (2) there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s 

performance, we look to the totality of the representation to determine the 

effectiveness of counsel, indulging a strong presumption that counsel’s

performance falls within the wide range of reasonable professional assistance or 

trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App.

2006). Appellant has the burden to establish both prongs by a preponderance of 

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An 

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need 

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

Having held that appellant was not entitled to have the trial court instruct the

jury not to consider his absence from the courtroom, his trial counsel could not 

have been ineffective for not requesting, or objecting to the lack of, such an 
26

instruction in the jury charge. See Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. 

Crim. App. 1995) (holding counsel not ineffective for not requesting instruction to 

which defendant was not entitled). Appellant also was not entitled to have the trial 

court instruct the jury to disregard his in-court misconduct. See Granados, 2011 

WL 5026406, at *4–5. Thus, appellant’s counsel could not have been ineffective 

for not requesting such an instruction in the court’s charge or objecting to the lack 

of such an instruction. See Rodriguez, 899 S.W.2d at 668. 

Further, as discussed above, the record shows that the trial court actually 

denied counsel’s requests, made during the trial, that it instruct the jury to 

disregard appellant’s in-court behavior and his absence. Moreover, the record does 

not show that appellant moved for a new trial. Generally, a silent record that 

provides no explanation for counsel’s actions will not overcome the strong 

presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 

(Tex. Crim. App. 2005).

We hold that appellant has not shown that his trial counsel’s performance 

fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687–

88, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at 143–44. 

We overrule appellant’s fifth issue.
27

Evidentiary Issues

In his sixth issue, appellant argues that the trial court erred in admitting into 

evidence certain “inflammatory” photographs because their probative value was 

“greatly outweighed by their prejudicial effect.” 

We review a trial court’s decision to admit or exclude evidence under an 

abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. 

App. 2006). A trial court abuses its discretion if it acts arbitrarily or unreasonably, 

without reference to any guiding rules or principles. Montgomery v. State, 810 

S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court’s 

decision to admit or exclude evidence, we will not reverse the ruling unless it falls 

outside the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 

102 (Tex. Crim. App. 1996).

Relevant evidence “may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. The opponent 

of the evidence must demonstrate that its negative attributes substantially outweigh 

any probative value. Montgomery, 810 S.W.2d at 377. A rule 403 analysis must 

balance (1) the inherent probative force of the proffered item of evidence, along 

with (2) the proponent’s need for that evidence, against (3) any tendency of the 

evidence to suggest decision on an improper basis, (4) any tendency of the 

evidence to confuse or distract the jury from the main issues, (5) any tendency of 
28

the evidence to be given undue weight by a jury that has not been equipped to 

evaluate the probative force of the evidence, and (6) the likelihood that 

presentation of the evidence will consume an inordinate amount of time or merely 

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006).

Here, appellant first asserts that the photographs admitted into evidence at 

trial as State’s exhibits 66 through 69 and 182 through 185 are “highly 

inflammatory” and their “prejudicial nature . . . outweighs any probative value.”

Specifically, he asserts that State’s exhibit 66, which shows the complainant’s hand

close-up as he lay on the floor of the apartment, is not relevant to any issue in the 

case and was offered “to evoke sympathy [that] this is a little boy who wears 

rubber bands on his wrist.” And appellant asserts that State’s exhibits 182 through 

185, which depict the contents of the complainant’s pockets, namely, money and a 

paper from his school, are not probative of any issue in the case. He further argues 

that exhibit 185, which shows the complainant’s homework, is prejudicial because 

it emphasizes that he was in the fourth grade. 

The record reveals that appellant asserted in his statement, which was 

admitted into evidence, that he continued to shoot into Carter’s apartment because 

he had seen someone “flash something at the window.” Thus, exhibits 66 and 182 
29

through 185, which show that the complainant did not have a weapon, make

appellant’s self-defense claim less probable. See TEX. R. EVID. 401. 

Additionally, the probative value of exhibits 66 and 182 through 185 was not 

substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.

Given appellant’s defensive theory, the State’s need to show that the complainant 

was unarmed was high. See Gigliobianco, 210 S.W.3d at 641–42. The jury had 

already heard the complainant described through various testimony as a “child” 

and had seen State’s exhibit 145, which is a photograph of the complainant taken 

before the shooting. Thus, the photographs showing that the complainant was in 

fourth grade and wore rubber bands on his wrist had low potential to suggest a 

decision on an improper basis or to confuse or distract the jury from the main 

issues. See id. And the time the State needed to develop this evidence was 

minimal. See id.

Appellant next asserts that State’s exhibits 67, 68, and 69, which show close 

up the gunshot wounds to the complainant’s head, are “exceptionally gruesome”

and cumulative of the autopsy report and medical examiner’s testimony. Further, 

he argues that “they are not representative of the scene as it was found” because 

the complainant had been turned over. 

We note that crime scene photographs are almost always relevant because 

they “depict the reality of [the] offense” and may show the manner in which it 
30

occurred. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). In 

determining the prejudicial effect of photographs, a court should consider (1) the 

number of photographs, (2) the size of the photographs, (3) whether the 

photographs are in color or black and white, (4) the detail shown in the 

photographs, (5) whether the photographs are gruesome, (6) whether a body shown 

in the photographs is naked or clothed, and (7) whether the photographed body has 

been altered since the crime in some way that might enhance the gruesomeness of 

the photograph to the appellant’s detriment. Reese v. State, 33 S.W.3d 238, 241 

(Tex. Crim. App. 2000). 

Exhibits 67, 68, and 69 are three photographs, which appellant asserts were 

in color when published to the jury on a fifty-inch screen in the courtroom, 

showing in detail the multiple gunshot wounds the complainant suffered to his 

head. See id. The photographs are gruesome. See id. And because the 

complainant’s body was turned over at the scene, the gruesomeness of exhibit 69 is 

enhanced in that it depicts brain matter having exited through one of the wounds. 

See id. However, photographs provide powerful visual evidence of the offense, 

and a trial court does not abuse its discretion in admitting photographs into 

evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 

511, 519 (Tex. Crim. App. 1995). 
31

In Chamberlain, the Texas Court of Criminal Appeals rejected the premise 

that the photographs accompanying the testimony in that case were cumulative, or 

of insignificant probative value. 998 S.W.2d at 236–37. The court explained that 

“[v]isual evidence accompanying testimony is most persuasive and often gives the 

fact finder a point of comparison against which to test the credibility of a witness 

and the validity of his conclusions.” Id. at 237. Although it further concluded that 

the photographs before it, which showed close up the bullet wounds suffered by 

the victim and included a close-up of the victim’s face with brain matter extruded 

through a large wound on the side of the head, were “gruesome in that they

depict[ed] disagreeable realities,” it held that the photographs depicted “nothing 

more than the reality of the brutal crime committed.” Id.

Here, as did the court in Chamberlain, we conclude that exhibits 67, 68, and 

69 are probative of the crime scene and the injuries suffered by the complainant. 

See id. These photographs are no more gruesome than would be expected, given 

the nature of the injuries inflicted. See id. The fact that the complainant’s body 

was rolled over to assess his injuries did not render the photographs inadmissible. 

See Prible v. State, 175 S.W.3d 724, 734–35 (Tex. Crim. App. 2005). And the 

danger of unfair prejudice did not substantially outweigh the probative value of the 

photographs. See TEX. R. EVID. 403. 
32

Accordingly, we hold that the trial court did not err in admitting into 

evidence State’s exhibits 66 through 69 and 182 through 185.

We overrule appellant’s sixth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Higley, and Sharp.

Justice Sharp, dissenting. Dissent to follow.

Publish. TEX. R. APP. P. 47.2(b).