Opinion issued August 26, 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 12
- 0 1042
- CR

——————————— GBOWEH DICKSON GEORG E , 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 fou nd appellant, Gboweh Dickson George , guilty of the offense of murder 1 and assessed his punishment at confinement for seventy

- five years. In six

1 See T EX
. P ENAL C ODE A NN
. § 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 int o his competency to stand
trial , excluding him from the courtroom during trial, not instructing the jury to disregard his absence from trial, deny ing his motion for mistrial, and admitting certain pho tographs 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 sit ting 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 t urned off the lights. As a ppellant 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 t he com plainant, 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 , a ppellant asserted that he had fire d 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
“f lash ed

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

. At a pretrial he aring , conducted three weeks before trial , 2 appellant, while the State was reci ting the facts of the case , interru pted 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 dis m iss; but there was

— did

— [Appellant]: You’re lying. [ The State]:

— make entry and did re cover 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 T he trial court noted that although it had previously granted defense counsel ’s motion for appellant to undergo a competency evaluation, a n 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 h e “didn’t mean it

. ”
T he trial court then asked appellant whether he wished t o be examined for competency or if it needed to take action reg arding 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 interru pted 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.” A nd

a ppellant responded, “I understand.”
A t trial , appellant sat through voir dire without inciden t. 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 cou rt 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 whi ch 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 .) [Appella n t]: 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, [a ppellant] . Settle down right now. (Jury out.) THE COURT: Now, [a ppellant] , 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 cour troom. That means that you would not be able to consult wit h 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, continu e this trial. I do not6 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, [a ppellant]. Do you understand? [Appellant]: (Nods head.) THE COURT: All right. Now, can I have your promise that you will not disrupt this trial again? [Appell ant]: Yes. Sorry, y our Honor. THE COURT: Thank yo u, [a ppellant]. 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 testif y, 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

. ” T he trial court granted a recess for defense counsel to consult with ap pellant 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 interrupt ed 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 appellan t

. 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.
A ppellant 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 d o 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 prio r 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 e arlier, and I still mean it, [a ppellant] , I’m very concerned for your representation. I’m totally and

— concerned with regard to what this jury might do watching you [] disrupting this p roceeding. In other words, I’m very concerned that they might ignore th e evidence in the case and find you guilty based upon your disrupting this trial. You see what I’m sayi ng? Can you hear me, [a ppellant] ? (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, [a ppellant] . Do you understand?8 (No response.) THE COURT: [A ppellant] , 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 re sponse.) THE COURT: Answer my question. Can you hear me, [a ppellant] ? (No response.) THE COURT: Let the record reflect that [a ppellant] has got his head down, he is handcuffed, he is shaking, he is mumbling, but he is not answering the Court

. [Def. Couns el] : Your Honor, if I may. At this point in time, loo king at [a ppellant’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 assis t 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 as sist your attorney. And I have watched him assisting you throughout this trial. How much th at was, I don’t know, and I don’ t really want to get into it, but I have no evidence from any source whatsoever exc ept him acting out whether or n ot 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 recor d reflect that [a ppellant] refuses to answer my question. Let the record reflect further since I have no confidence whatsoever that when we restart this trial that [a ppellant] w ill not continually disrupt the trial by shouting out to the witnesses in an a g gressive 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 understa nd your objections, and they’ re duly noted for the record.

. . .

. . . . Now, [a ppellant], I know you ca n 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 ass ist 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, [a ppellant] ? (No response.)

. . . . [Def. Counsel] : Your Honor, at this po int 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 min e also, but your motion is denied at this time. Very well. One last time, [a ppellant] can you give me your assurance s10 that you will not disrupt this trial and [will] assist your attorney? (No response.) THE COURT: Very well. Let th e record reflect that [a ppellant] i s 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 m e 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 exi ts the courtroom.) THE COURT: I tell you what, . . . I decided not to do that. [Def. counsel] : Well,

. . . perhaps what would b e 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

. T he trial court instructed the b ailiff 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 himsel f appropriately. The jury t hen returned , and the trial continued.11 Later in the afternoon, defense counsel, o utside 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.
A fter 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 situat ion.” 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

. A fter

a ppellant 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 si nce the previous day , and he had not responded to her questions concerning the evidence or whether he still planned to testify. Counsel stated th at she wished to “renew the competency issue.” The trial court12 asked whether there was any evidence of appellant’s incompetency other tha n his “simply refusing to a nswer ” 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 dete rmine whether he wished to testify. The trial court noted on the record that appellant, after bein g bro ught 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 proceeding s because his outbursts related to the matters raised in the courtroom.
T he State asserted, thus, it was apparent that appellant had “been able to perceive what has be en 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. A ppellant answered , “Yes, I wish to participate.” And he indicated that he wished to testify. During his test imony, appellant offered

numerous non - resp onsive answers and answered beyond the question s asked

. At the close of questioning, appellant refused to step down and continued to speak. After removing the jur y from the courtroom, the trial court asked appellant whether13 he would be quiet during the remainder of the p roceeding, and appellant agreed

. Defense counsel then moved for a mistrial, asserting t hat t he jury had been tain ted by ap pellant’s conduct , which the trial court denied

. During the State’s closing at punishment , ap pellant 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.
A fter the jury assessed punishment , the tr ial court released the jury, had a ppellant brought out , and sentence d 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 ou tbursts , 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 inqui ry, for an abuse of14 discretion. See L una v. State , 268 S.W.3d 594, 600 (Tex. Crim. App. 2008); Thomas v. State , 312 S.W.3d 732, 736

– 37 (Tex. App.

— Hou ston [1st Dist.] 2009, pet. ref’ d).

“ A criminal defendant who is inc ompetent 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 ment al 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 factua l, understanding of the proceedings against him. T EX
. C ODE C RIM
. P ROC
. A NN
. 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
i ssu e 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 is15 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 par ty may suggest by motion, or a trial court may sug gest on its own motion, that a defendant may be incompetent to stand trial. T EX
. C ODE C RIM
. P ROC
. A NN
. a rt. 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 th e competency of [a] defendan t.” 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 Artic le 46B.003.” Id . Th e factors includ e 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, ev ents, and states of mind; (C ) engage in a reasoned choice of legal strategies and options; (D ) understand the adversarial na ture of criminal proceedings; (E ) exhibit approp riate courtroom behavior; and (F ) testify.” Id. a rt. 46B.024(1) (Vernon Supp. 2013)

. In conducting its info rmal inquiry , a tri al court must consider only the evide nce tending to show incompetency , “putting aside all competing indications16 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 entitle d to great deference on appeal. Ross v. State , 133 S.W.3d 618, 627 (Tex. Cri m. 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 t o stand trial

. See T EX
. C ODE C RIM
. P ROC
. A NN
. 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 “i nformal inquiry” into his competence . H e 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 th e trial court. Thus , the trial court was required to determine by i nformal inquiry whether there was some evidence from any source that would support a17 finding that appellant might be incompetent to stand trial. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 46B.00 4(c) ; see also id. art. 46 B.004(c

- 1) (providing that suggestion of incompetence “ may consist solely of a representation from any credible source,” further evidentiary sh owing n ot required, and trial court “not required to have a bona fide doubt about the c ompetency of the defendant”)

. Here, in assessing appellant’s competence to stand trial, t he 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,” t he trial court asked whether there was any evidence of appellant’s incompetency other tha n his “simply refusing to a nswer ” her or the trial court. After defense counsel responded in the negative, the trial court denied h er request

. T he trial court had the opportunity to observe appellant’s conduct first

- hand and sup plement its observations with its inquiry to defense counsel

. See Ross , 133 S.W.3d at 627 (stating trial court’s fir st

- hand factual assessment of defendant’s competency entitle d to “great deference” on appeal); see, e.g. , J ackson v. State , 391 S.W.3d 139, 142 (Tex. App.

— Texarkana 2012, no pet.) ( concluding trial18 court’s inquiry to defense counsel coupled with its own observations of defendant consti tuted sufficient informal inquiry into defendant’s competence )

. I n 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 Di st.] 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 interruption s during court proceedings and his refusal to answer counsel and the trial court when prompted a re probative
of hi s incompetence to stand trial. However, d isruptive courtroom conduct and a general failure to cooperate are not probativ e of in competence to stand trial. Burks
v. State , 792 S .W.2d 835, 840 (Tex. App.

— Hou st on [1st Dist.] 1990, pet. ref’d ). “If such actions were probative of incompetence, one could effectively avoid criminal just ice through immature behavior.” Id

. Further, appellant’s r efusal to communicate with counsel and t he trial court did not overcom e 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 m ay 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 failur e to communica te with counsel did not demonstrate inability to communicate )

. Here, a lthough appellant’s obstinance and refusal to cooperate constituted

“ v iolations of court decorum,” it did not constitute evidence of an inability to factually appreciate t he proceedings or to communicate with counsel and the trial
court

. See Moore v. State , 999 S.W.2 d 385, 395 (Tex. Crim. App. 1999) (holding defendant’s unruly and d isruptive 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 qu estions as he was directed ” did not indicate incompetency)

. Moreover, appellant’ s rude behavior d id 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 oth er witnesses.” See Moore , 999 S.W.2 d at 395; Lawrenc e v. State , 169 S.W.3d 319, 322

– 23 (Tex. App.

— Fort Worth 2005, pet. ref’d) ( noting defendant’s rambling and nonresp onsive answers to questions did not constitute evidence of incompetency becaus e his answers revealed “ he simply wanted his day
i n court and wanted an opportu nity 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 A ntonio20 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 hol d 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, b ecause the trial court did not conclude through its i nformal 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 T EX
. C ODE C RIM
. P ROC
. A NN
. art. 46B.005

. W e overrule appe llant’s first issue

. Exclusion from Trial
In his second issue, appellant argues that the trial court erred in excluding
hi m 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.
C ONST
. amend. V, V I, XIV; T EX
. C ONST
. art. I, § 10; T EX
. C ODE C RIM
. P ROC
. A NN
. 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 (19 70); T EX
. C ODE C RIM
. P ROC
. A NN
. 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 h imself in a manner befitting an American courtroom. ” Allen , 397 U.S. at 34 5

– 4 6 , 90 S. Ct. at 1062. Thus , a defendant may forfeit his right t o remain in the courtroom by engaging in misconduct. Id . at 342

– 43 , 90 S. Ct. 1060

– 61 ; see also T EX
. C ODE C RIM
. P ROC
. A NN
. art. 33.03 (allowing vo luntary absence after voir dire in jury trial)

. Appellant was present throughout voir dire and the first day of trial without incident. Begi nning the second day of trial, he , on several occasions, interrupted witness testimony. He then r epeatedly r efused to answer the trial court’s questions regarding whether he intended to continue engaging in such misconduct

. Prior to his removal , the trial court repe atedly warned appellant that he would be removed from the courtro om if he persisted in his unruly conduct

. See Allen , 397 U.S. at
342

– 43, 90 S. Ct. at 1060

– 61. Once removed, t he trial co urt ensured that appellant was able to hear the trial while he was in the holdover cell , and it directed the bailiff to ask appellan t , every thirty minutes to an hour , whether he wished to return to the courtroom.
T hroughout the proceedings, the trial court directed defense counsel to consult22 with appellant about returning to the courtroom. Further, on numerous occasions, the trial c ourt 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 defendan t from courtroom when , despite having been warned he would be expelled from courtroom if disruptive behavior continued, defendant insist ed behavior not disruptive and did not assure trial court he would remain silent )

. We overrule a ppellant’s second issue

. Mistrial In his third issue, ap pellant 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 preju dicial and incurable errors. Ocon v. State , 284 S.W.3d 8 80, 884 (Tex. Crim. App. 2009). We review a trial court’s denial of a motion for mistrial for an
abuse of disc retion. 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 m istrial “only when residual prejudice remains” after less drastic alternatives are exp lored, such as instructing the jury “to consider as evidence only the testimony and exhibits admitted throu gh witnesses on the stand.” Id . at 884

– 85. Moreover, a trial court does n ot 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 d efendant’s own outbursts ); see , e.g ., Granados v. State , No. 01

- 10

- 00547

- CR, 201 1 WL 5026406, at *5 (Tex. App.

— Houston [1st Dist.] Oct. 20, 2011, pet. ref’d) ( mem. op., no t designate d 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, w e hold that the trial court did not err in de nying appellant’s motion for mistrial, which was predicated on his own misconduct.
W e 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 sent ence . 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, w e 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 o verrule appellant’s fourth issue. Ineffective Assistance of Counsel In his fif th 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 suffic ient 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, indulgi ng a strong presumption tha t counsel’s performance falls within the wide range of reasonable professiona l 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 th e 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 nee d to consider the other prong.” Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 20 09). Having hel d 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 an2 6 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 ins truction to which defendant was not entitled )

. Appellant also was not entitled to have the trial

cou rt 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 R odriguez , 899 S.W.2d at 668. Further, as discussed above , the re cord 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 6 87

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

– 44.
W e overr ule appellant’s fifth issue

.27 Evidentiary Issues In his sixth issue, appellant argues that the trial court erred in admitting into evidence certain “inflammatory” photogr aphs 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 8 37, 841 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to a ny guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When conside ring a trial court’ s decision to admit or exclude evidence, we will not reverse the ruling unless it falls outside the “ zon e 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.” T EX
. R. E VID
. 403. The opponent of the e v idence must demonstrate that its neg ative attributes substantially outweigh any probative value. Montgomery , 810 S.W.2d at 377. A r ule 403 analysis must balance (1) the inherent probative force of the proffered item of eviden ce , 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 of28 the eviden ce 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 a re “highly inflammatory” and their “prejudic ial 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.” A nd appellant asserts that State’s exhibits 182 through 185, which depi ct the contents of the compla i nant’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 w as in the fourth grade

. The record reveal s that a ppellant asserted in his state ment , 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 18229 through 185 , which show that the co m plainant did not have a weapon, make appellant’s self

- defense claim less probable

. See T EX
. R. E VID
. 401. Additionally, the probative value of exhibits 66 and 182 through 185 was not substantially outweighed by th e danger of unfair prejudice. See T EX
. R. E VID . 403.
G iven 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

. T he jury had already heard the complainant descr ibed 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 , t he 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 im proper basis or to confuse or distrac t the jury from the main issues

. Se e id . And t he time the State need ed 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 , a re “exception ally 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 “depi ct the reality of [the] offense ” and may show the manner in which it30 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
p hotographs, (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 ar e three photographs, which appe llant asserts were in color when published to the jury on a fifty

- inch screen in the courtroom, show ing in detail the multiple gunshot wounds the complainant suffered to his head. See id. The photographs a re 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 br ain matter ha ving exited through one of the wounds

. See id. However, p hotographs 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 cumulati ve , or of insignificant probative value. 998 S.W.2 d at 236

– 37. The c ourt 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. A lthough 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 ex truded through a large wound on the side of the head , we re “ 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 , w e conclude that exhibits 67 , 68, and
69 a re pro bative of the crime scene and the injuri es suffered by the complainant

. See id. T hese photographs are no more gruesome than would be expected , given the nature of the injuries inflicted

. See id

. The fact that the co mplainant ’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 T EX
. R. E VID
. 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.
P ublish

. T EX
. R. A PP
. P. 47.2( b).