REVERSE and REMAND and Opinion Filed July 5, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00174-CR GLENDA COREAS MA CHADO, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-24919-Q OPINION Before Justices Molberg, Pe dersen, III, and Goldstein Opinion by Justice Molberg “Green dress, shackles on the legs.” This is how a law enforcement officer described appellant Glenda Coreas Machado when identifying her in front of the jury in the guilt phase of her tria l on a first-degree felony indictment. 1 Her counsel immediately objected and moved for mistrial, which the trial court overruled. Soon thereafter, the jury found Coreas Machado gu ilty of the offense as charged, and the

1 Coreas Machado was indicted on a first-degree felony charge of manufacturing/possession with intent to deliver a controlled substance—to wit, meth amphetamine—in an amount of 400 grams or more. See T EX

. H EALTH & S AFETY C ODE §§ 481.112(f), 4 81.1121(b)(3).–2– trial court imposed a sentence of twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Coreas Machado appeals the trial cour t’s judgment and argues the trial court erred by (1) overruling her counsel’s objection and motion for mistrial and (2) failing to explain on the record its reasons for orde ring her to be shackle d during trial. The State disagrees, both on the merits and by ar guing she failed to preserve error. The State also raises a cross-issue regarding c ourt costs. We sustain Coreas Machado’s first issue, do not address her sec ond issue or the State’s cross-issue, 2 reverse the trial court’s judgment, and remand for a new trial.
B ACKGROUND The pertinent portion of the tria l transcript is as follows: Q. If [Coreas Machado], the person th at you – that was arrested that night with methamphetamine were in the courtroom today, would you be able to identify her? A. Yes. Q. Can you do so using an article of her clothing? A. Looks like a green sleeveless shirt. Q. Can I have the defendant stand up, please, so the officer can identify the full outfit that the defendant is wearing? A. I stand up too? Yes, it’s her standing up.

. . . .

2 We need not address these issues in light of our disposition of Coreas Machado’s first issue. See T EX

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. P. 47.1 (courts of appeal “must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”).–3– Q. [Prosecutor:] Officer, can you come around and see what type of garment the -- [Prosecutor:] Can the officer have permission to come down and see what type of garment the de fendant is wearing, please? THE COURT: Sure. A. [Witness] Green dress, shackles on the legs. [Defense counsel]: Objection. Move for mistrial. THE COURT: Overruled. [Prosecutor:] Let the record reflect that the witness has identified the defendant in open court. THE COURT: Record will so reflect. Later, after the case was submitted to the jury, and after defense counsel made a proffer regarding issues not pertinent to this appeal, defense counsel and the trial court engaged in the following exchange: [Defense counsel]: Yes, Judge. And I did make a motion for mistrial when the officer, not in response to any question, walked around the side and commented on the fact th at she was shackled. And I would suggest to the Court that that is a violation of due process. We do go through procedures not to show a de fendant shackled or to have them put on trial in jail clothes or anything to indicate that they are in custody. THE COURT: I denied that as well. I’m sure th at [the prosecutors] will school their witnesses a little bit bette r in the future about comments on shackling, jail. I don’t think an y harm was done, and so -- [Defense Counsel]: I think that was inappropriate. I do not fault [the prosecutors] -- THE COURT: I don’t either.–4– [Defense Counsel]: -- in any way be cause that was not in response to a question. And as a matter of fact, I don’t think it’s that big a deal whether that’s a tank top or a shirt or dress in identifying the defendant. THE COURT: I’m not blaming anybody. I’m just going to say I deny the motion. [Defense Counsel]: But this officer , per the testimony, has been with Garland two years and, prior to that, four to six years in California. And I’m sure California works under th e same Constitution we do. And has testified there before. THE COURT: Okay. (Recess.)
D ISCUSSION In her first issue, Coreas Machado argues that the trial court violated her right to due process by overruling her counsel’s objection and motion for mistrial and that such error must be reversed under rule of appellate procedure 44.2(a). The State disagrees, both on the merits and by argu ing Coreas Machado failed to preserve

error. Preservation of Error Because a reviewing court should not addr ess the merits of an issue that has not been preserved for appeal, see Obella v. State , 532 S.W.3d 405, 407 (Tex. Crim. App. 2017); Wilson v. State , 311 S.W.3d 452, 473 (Tex. Cr im. App. 2010) (op. on reh’g), before addressing the merits, we consider whether Coreas Machado preserved her first issue for appellate review. To preserve a complaint for our review, the record must show that the party presented to the trial court a timely reques t, objection, or motion that states the–5– specific grounds for the desired ruling if th ey are not apparent from the context of the request, objection, or motion. T EX
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. P. 33.1(a)(1); Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The record must also show that the trial court “ruled on the request, objection, or mo tion, either expressly or implicitly” or “refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.” T EX
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. P. 33.1(a)(2); Pena v. State , 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). In Clark , the court stated: To preserve error for appellate re view, the Texas Ru les of Appellate Procedure require that the record show that the objection “stated the grounds for the ruling that the comp laining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” T EX
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. P. 33.1(a)(1)(A). The point of error on appeal must comport with the objection made at tria l. Therefore, if a party fails to properly object to constitutional erro rs at trial, these errors can be forfeited. . . . [W]here the correct ground for an objection is obvious to the judge and opposing counsel, no waiver resu lts from a general or imprecise objection. . . . While no “hyper-technical or formalistic use of words or phrases” is required in order for an objection to preserve an error, the objecting party must still “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.” In determin ing whether a complaint on appeal comports with a complaint made at tr ial, we look to the context of the objection and the shared understanding of the parties at the time. The two main purposes of requiring a specific objection are to inform the trial judge of the basis of the obj ection so that he has an opportunity to rule on it and to allow opposing couns el to remedy the error. Usually, for a complaint to be obvious withou t having been explicitly stated and still satisfy the purposes above, there have been statements or actions–6– on the record that clearly indicate what the judge and opposing counsel understood the argument to be. Clark , 365 S.W.3d at 339 (citations and footnote omitted). On appeal, Coreas Machado argues de fense counsel’s immediate objection and motion for mistrial were sufficient to preserve the error for our review because the grounds were apparent from the context and, as shown by the trial judge’s later comments, he was sure that the prosecutors would “school their witnesses a little bit better in the future about comments on shackling.” The State makes some what contradictory arguments in response. On one hand, the State argues that because Coreas Machado’s counsel did not ask for an instruction to disregard 3 or make the due process objec tion clear at the time of his objection, this casts doubt as to the true na ture of the objection, and it was “unclear whether [he] was objecting on due process grounds, prejudicial grounds under [rule of evidence] 403, relevancy under [rule of ev idence] 401 or 402, or some other silent rationale.” But on the other hand, the State concedes Coreas Machado’s trial counsel’s later argument that a mistrial should have been declared based on a violation of due process “may be sufficien t to preserve” her first issue but not her second issue.

3 To the extent the State suggests otherwise, we note that “requesting lesser remedies is not a prerequisite to a motion for mistrial.” Ocon v. State , 284 S.W.3d 880, 885 (Tex. Crim. App. 2009). While we acknowledge that “when the mova nt does not first request a lesser remedy, [appellate courts] will not reverse the court’s judgment if the problem could ha ve been cured by the less drastic alternative[,]” id ., here, we conclude the problem could not have been cured by a less drastic alternative than mistrial.–7– We conclude Coreas Machado preserved her first issue for appellate review because, as the record before us reflect s, the due process grounds for her objection and motion for mistrial were apparent from the context, both in light of the circumstances and comments immediately preceding the objection and as further evidenced by the trial judge’s later commen ts, which reflected he clearly understood Coreas Machado’s objection concerned due process. See T EX
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. P. 33.1(a)(1)(A); Clark , 365 S.W.3d at 339 (“[W]here the correct ground for an objection is obvious to the judge and oppos ing counsel, no waiver results from a general or imprecise objecti on” and “no ‘hyper-technical or formalistic use of words or phrases’ is required in order for an obj ection to preserve an error.”) (citations omitted); Pena , 353 S.W.3d at 807 (“[N]o magi c words are needed.”). Denial of Mistrial Next, we determine whether the tria l court erred by overruling Coreas Machado’s objection and motion for mistrial after the officer identified her in front of the jury by stating, “Green dress, shackles on the legs.” We review the denial of a motion for mistrial under an abuse of discretion standard and must uphold the trial court’s ruli ng if it is within the zone of reasonable disagreement. Coble v. State , 330 S.W.3d 253, 292 (T ex. Crim. App. 2010); see also Becerra v. State , 685 S.W.3d 120, 127 (T ex. Crim. App. 2024) (“We review a trial court’s denial of a motion for a mi strial . . . under an abuse of discretion standard.”). Under this st andard, we do not substitute our judgment for that of the–8– trial court; rather, we deci de whether the trial court’ s decision was arbitrary or unreasonable. Becerra , 685 S.W.3d at 127. A trial judge abuses his discretion when no reasonable view of the record could support his ruling. Id

. “The law has long forbidde n routine use of visible shackles during the guilt phase; it permits a State to shackle a crim inal defendant only in the presence of a special need.” Deck v. Missouri , 544 U.S. 622, 626 (2005). “[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determinat ion, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Id . at 629. Thirty-five years prior to Deck , the Court acknowledged, “[T]he sight of shackles . . . might have a significant e ffect on the jury’s feelings about the defendant,” and their use might be “something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Illinois v. Allen , 397 U.S. 337, 344 (1970). Shackling is an “unmistakable” indication of the need to separate a defendant fr om the community at large. Holbrook v. Flynn , 475 U.S. 560, 569 (1986). “The primary concern in shackling erro r is the jury’s perception of the restraints and the ill effects it may ha ve upon the defendant’s presumption of innocence.” Bell v. State , 415 S.W.3d 278, 282 (Tex. Crim . App. 2013). Absent a showing of exceptional circumstances or a ma nifest need for such restraint, requiring an accused person to be restrained befo re the jury infringes on the accused’s–9– constitutional presumption of innocence. Clark v. State , 717 S.W.2d 910, 918–19 (Tex. Crim. App. 1986) (referring to an accused’s being handcu ffed). “Even when exceptional circumstances or a manifest need for such restraint exists, the trial judge should make all efforts to prevent the jury from seeing the defendant in shackles.” Bell , 415 S.W.3d at 281; see also Ex parte Chavez , 560 S.W.3d 191, 202 (Tex. Crim. App. 2018) (orig. proceeding) (citing Bell ). No showing of exceptional circumstances or a manifest need for such restraint exists in the record before us, and in the portion of the record at issue, there is no indication the trial judge made any effort whatsoever to prevent the jury from seeing Coreas Machado in shackles. Based on the record before us, we conclude the trial court abused its discretion because no reas onable view of the record could support the ruling, and its decision was arbitrary, unreasonable, and not within the zone of reasonable disagreement, when it overrule d Coreas Machado’s objection and motion for mistrial after the officer identified her in front of the jury by st ating, “Green dress, shackles on the legs.” See Becerra , 685 S.W.3d at 127; Coble , 330 S.W.3d at 292 (both outlining applicable standards). This does not end our inquiry, however , as we must determine whether reversible error exists under ru le of appellate procedure 44.2. The rule states, in part, (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is s ubject to harmless error review, the court of appeals must reverse a j udgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.–10– (b) Other Errors. Any other error, de fect, irregularity, or variance that does not affect substantial rights must be disregarded. In Bell , the Texas Court of Criminal Appeals stated, Therefore, shackling error may rise to the level of constitutional error when the record reflects a reasona ble probability that the jury was aware of the defendant’s shackles. We do not intend to suggest that reasonable probability in this contex t means more probable than not; it simply requires a substantial basis supporting a conclusion that the jury perceived the defendant’s restraints. 415 S.W.3d at 283. 4 Based on the record before us, we concl ude the trial court’s error rises to the level of constitutional error because the re cord reflects a reasonable probability the jury was aware of Coreas Machado’s sh ackles and perceived her restraints. Immediately before the officer’s comment, a nd in the jury’s presence, the trial court had Coreas Machado stand and allowed the officer to leave the witness stand to approach her in order to identify her clothing. 5 The officer’s comment, by its very nature, drew the shackles to the jury’s atte ntion. In light of the officer’s comment and surrounding circumstances, the record reflects a reasonable probability that the

4 Recently, Judge Slaughter from the Texas Court of Criminal Appeals stated, “[T]he question of whether a shackling error is constitutional or non-constitutional error comes down to whether the jurors saw the shackles, not the extent to which the jurors saw them.” Gennusa v. State , 689 S.W.3d 320, 324 (Tex. Crim. App. 2024) (Slaughter, J., joined by Richardson and McClure, JJ., concurring) (citing Deck , 544 U.S. at 634).
5 It is not clear from the record where Coreas Machado and the officer stood in relation to the jury or to one another when the officer identified her as wearing a “[g]reen dress, shackles on the legs.” Regardless of where they stood at the time of the remark, the reco rd reflects, and the State co ncedes, the jury was made aware of the shackles through the office r’s remark. For example, in its a ppellate brief, the State indicates “the jury’s awareness th at Coreas Machado was we aring shackles” came “exclusively through testimony” and argues the “verbal revelation [Coreas Machado] was restrained” did not impact the jury’s verdict.–11– jury was aware of Coreas Machado’s shack les and provides a s ubstantial basis to support a conclusion the jury perceived her restraints. To its credit, the State does not contes t that the jury was aware of Coreas Machado’s restraints. Rather than argue that we should apply the nonconstitutional harm analysis under rule of appellate pr ocedure 44.2(b), the State instead seems to implicitly accept that the proper analysis is under rule 44.2(a), as the State argues that we should affirm the judgment becaus e, based on the eviden ce presented to the jury of Coreas Machado’s guilt, we may conclude, beyond a reas onable doubt, that the shackling error did not contribute to Coreas Machado’s conviction. See T EX
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. P. 44.2(a). We disagree. Although the record certa inly contains some evidence to support the jury’s finding of guilt, we cannot conclude, beyond a reasonable doubt, that the shackling error did not contribute to her conviction. See id . At bottom, given Coreas Machado’s testimony at trial a nd her statements to officers at the scene of the arrest, the case boiled down to a question of Coreas Machado’s credibility, and the jury’s awareness of Coreas Mach ado in shackles, not long before the case was submitted to the jury for decision in the guilt phase, could easily have led the jury to ignore reasonable doubts they may ha ve otherwise had and to tip the scale of justice against her and in the State’s fa vor when determining guilt. Under the circumstances of this case, and in ligh t of the long-standi ng recognition of the negative effect the sight of a criminal de fendant in restraints might have upon the–12– accused’s presumption of innocence, we cannot conclude beyond a reasonable doubt that the jury’s awareness of Coreas Machado standing in shackles in the courtroom during the guilt phase did not contribute to the jury’s finding of Coreas Machado’s guilt. We sustain Coreas Machado’s first issue.
C ONCLUSION Without addressing Coreas Machado’s s econd issue or the State’s cross-issue, we reverse the trial court’s judgm ent and remand for a new trial.

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230174F.U05 /Ken Molber g/ KEN MOLBERG JUSTICE–13– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GLENDA COREAS MACHADO, Appellant
No. 05-23-00174-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F22-24919-Q. Opinion delivered by Justice Molberg. Justices Pedersen, III and Goldstein participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for a new trial.
Judgment entered this 5th day of July, 2024.