Opinion issued August 24, 20 23

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 22 - 00519 - CR

——————————— PAUL GENNUSA , Appella nt

V. THE STATE OF TEX AS , Appell e e
On Appeal from the 228th District Court

Harris County, Texas Tria l Court Ca se No. 1690746

MEMORANDUM OPINION A jury found appellant , Paul Gennusa, guilty of burglary of a habitation , 1 enhance d with a prior conviction for as sault on a family member as a repeat offen der

. The jury further assessed Gennus a ’ s pun ishment at 35 years ’

1 See T EX
. P ENAL C ODE § 30.02

.2

confinement. In th ree issues on appeal, Gennusa ’ s argues that (1 ) the trial court abused its discretion by having Ge n nusa ’ s legs shackled during trial; (2) the trial court abused its discretion by allowing improper jury argument from t he State ; and (3) the judgment of co nviction should be reformed to re flect that he was convicted of burglary of a h abitation wi th intent t o commit aggravated assault . Be cause we

c onclude that Gennusa was not harmed by the trial court ’ s error in leaving him shackled dur ing trial, no r was he harmed by the State ’ s jury argument, we affirm the judgment but mo dify it to reflect that Gennusa was convicted of burgla r y of habitation with intent to commit aggravated assault

. Backgro und Christian Marrder, the n eig hbor of the complainants How ard and Rhonda Rogers, was driving home when he observed a m a n on a motor cycle behaving erratically. The ma n o n the motorcycle drove into Marrder ’ s neighborhood a nd stopped at the Rogers ’ house. M a rrder watch ed the man, who he later identi fied a s Gennusa, force his way past Rhonda Rogers . When he heard Rhonda scream, Marr der called 9

- 1

- 1. Less than a minute lat e r, M arrder saw Howard Rogers wrestling with G ennusa in the Rogers ’ front yard. Howard R og ers was bleeding profusely . Gennusa f

led o n foot. Rhonda Rogers testified that she and her hus band were preparing to leave for dinner, and her husban d had just stepp e d out of the shower , when she heard a3

motorcycle and her husband saw someone a pproach ing t he door. Rhonda identified G ennusa as the man who came to the door , and she testified that he asked whether she had seen his dog . She cr acked the door to talk to him , and he insisted that she had stolen his dog. S he told him she had not seen his dog and tr ied to close the door. Gennusa pulled a kn ife out of his po cket and forced his way into he r house

. She shouted to her husband to ge t his gun, warning him that Gennus a had a knife. She saw Gennusa charge up the stairs to ward her husband , and she ran out the back door to get help. How ard Rogers tes tified that he heard Rhonda scream and then saw Gennusa rushing up the stairs toward him. He fought with Gennusa inside the h ouse. Gennusa stabbed Howard several times , but How ard was ev entually able to chase Gennu sa from the house . As he lef t the house, G ennusa dropped the kn ife , and Howard picked it up. Gennusa tried to get on his motor cycle to ride away, but How ard used the k n ife to puncture t he t ires. Gennusa fled on foot. He was arrested outside a nearby dance studio. Howard sustained multiple injur ies , including gashe s on his head, neck , and arm. He also had stab wounds to his stomach. He spent more than a week in the h o sp i t al recovering from the injuries he sustained. Howard and Rhonda both testified during th e punishment phase of the trial about the i mpact the cri me had on them. They moved to a new hou se in a “ safer ” neigh borhood bu t continued to be4

fearful about opening the door to people. How a r d c ontinued to have numbness and other physical effects from the assault. The State al so present ed evidence from Brig e t te Roulaine, whose niece was taking a cla ss at the n earby dance studio. While Roulaine was waiting , she saw a

man covered in blood come a round the corner and attempt to enter the dance studio. Roulaine called 9

- 1

- 1. The responding officer, A. V i llareal , arrived a nd

o bser ved Gennusa behaving erratically. He detained Gennusa , who was eventually charged with burglary of a habitation with the i ntent to commit aggravated assault. The jury found him guilty of the offense of burglary of a habitation wi t h the intent to commit aggravated assault, as instructed by the j ury charge. Gennusa also

c hose to have the jury assess his punishment , and the ju r y found that he sh ould be conf ined for 35 years. Although the indi ctment, jury charge, and evidence at trial indicated that Genussa was charged with and convicted of the offense of burglary of a habitation with the intent to commit aggravated assault, t he t rial court ’ s judgment of conviction reflect ed that Gennusa was co nvicted of burglary of a ha bitation with t h e intent to commit theft. This appeal followed. S hackling In his first issue, Gennusa argues that th e trial court reversibly erred in denying his c o unsel ’ s request to remove his leg shackle prior to the trial.5

A. R el evant F a cts During voir dire, while both s i des were making their strikes, defense counsel became aware that Gennusa was shackled , telling the trial court , “ Judge, I was not aware that my cl i e nt was shackled. So I told him to move seats, and it was on ly

onc e he moved that I realized he was shackled

. I ’ m not sure why, and I ’ m sure that that front row saw. ” Defense counsel went on to explain, “ I looked down at the table; and the way his feet we r e , I didn ’ t see any chains. And, so, I said, oh, let ’ s us move and it was only when I came around t hat I saw it but they did not move him. That ’ s on me. I just was not aware that he was shackled. ” The trial court questioned why Gennusa was s h ackled, obser v i ng that it was generally not necessary or proper to have a defen d ant s hackled in the courtro om for a trial. The deputy in the courtroom stated simply that Gennusa was “in
custo dy, ” and he stated that Gennus a “ was blocked off from both angles so the juror s couldn ’ t see him; and I made it known to the folks that, you know , he ’ s not going to be moved in view of th e p anel or the jury should it be selected

. ” The trial court and defense counsel agreed t hat the restraints on Gennusa ’s legs were not visible unles s G ennusa mo ved , but defense counsel nevertheless objected to Gennu sa ’s being shackled absent the articulatio n of some particular justification for restraining him.6

The trial court proceeded to question the venire panel. Several members of the venire saw t h e re straints, but only one of those

— Juror 12

— was eventually seated on the jury. When the trial cou rt asked J u ror 12 whether he had observed anything unusual when Gennusa stood up, Juror 12 stated that he saw Gennus a ’s leg restraints. Defense counsel asked , “[I] f you were chosen on this jury, [ would
you use ] that informat ion [i.e., the fact that Gennusa was weari n g leg irons] in deciding guilt/innocence in this case? ” Jur or 12 answered, “No. ” T wo other members of the venire panel

— Jurors 2 and 8

— saw the shac k l es and indicated that it would i mpact their consideration of Genn usa ’s g uilt or innocence , and therefore sh o uld be struck

. The trial court pointed out , however, that those jurors had already been str uck with peremptory strikes and stated, “ All right. Now , that issue I think is moot because the way that you guys exercise d your strikes, they ’ re off. They ’ re not o n . ” Defense counsel consulted with Gennusa, then info rmed the tri al court that , because Jurors 2 and 8 had previously been st ruck , Gennusa was “ pre p a red to go forward with the jury that we have

. ” When trial commenc e d, before the jury was seated, defense co u nsel again moved that Gennusa not be shackled and stat ing, “[I] f they can articulate, Judge, that my client has been vio lent or untrustworthy in t h e jail, I certainly would want to hear that but I ’ ve not been info rmed of anything like that and I think jus t having a blanket policy that we ’ re gonna shackle people who are unfortunate enough to7

not have money to make a bond is wrong. ” The tri al court qu e s tioned the deputies regarding why Gennusa was shackled, and the d eputies stated that it was simply their po l ic y to shackle people who were in cus tody. The trial court clarified: “I want to make sure that the record is clear that he was seated in a positi o n where the jury could not see that he was shackled. ” The trial co urt denied the motion to r emove the shackl e s, and the record reflects that the trial court and deputies intended that Gennusa would be positioned so that the restraints would not be visible t o the j ury. If he needed to move, the trial court would “tak e a b reak ” so that the jury would not see the s h ackles. B. Standard of Review and Relevant Law T he United States Constitution forbids the routine use of visible shackles on defendants during trial

. Deck v. Missouri , 544 U.S. 622, 624, 626

– 29 (2005) ; Ex
par te Chave z , 560 S.W.3d 191, 201 (Tex. Crim. App. 20 1 8) ; Be ll v. State , 415 S.W.3d 278, 281 (Tex. Crim. App. 2013). When the jury sees the defendant in shackles, his constitutional p resumption of innocence is undermined. Bell , 415 S.W.3d at 281

– 82 . Th us, th e trial court should make all efforts to pr event a jury from seeing a defendant in shackles unless there has been a showing that there a re extreme or exceptional circumstanc e s requiring a need for such restraints. Id.

“ Even when shackles are not visible to the jury, however, shackling a defendant d u ring tr ial is non

- constitutional error in violation of the common law8

unless it is necessary for a particular defendant in a parti c u lar proceeding. ” Chavez , 560 S.W.3d at 2 02. For shackling to be justified, “the record must manifest the trial judge ’ s rea s ons for restraining a defendant,” and a trial judge errs in ordering shackles if “the record fails to detail the grounds for rest r a int.” I d. (quoting Bell , 415 S.W.3d at 281). Further, those grounds must ar ticulat e why shackling is “necessary for a particu lar defe ndant in a particular proc eeding.” Bell , 415 S.W.3d at 281 , 283 (holding that trial court erred whe n it made no particularized finding articulating reason f

o r shackling defenda n t, inst ead expressing “ a gen eralized concern for court room security ” ). W e revi ew the trial court’s ruling for abuse of discretion. See B ell , 41 5 S.W.3d at 281 ; Long v. State , 823 S.W.2d 2 59, 282 (Tex. Crim. App. 1991) . If we conclude that the u s e of shackles constituted error, then we must dete rmine whether it was harmful. B ell , 415 S.W.3d a t 281

– 83 (holding that visi ble shackling without justification is constitutional error, but improper use of non

- visible shackles is non

- constitutional error t o be considered und er Texas Rule of Ap pellate Procedure 44.2(b)) ; see T EX
. R. A PP
. P . 44. 2 ( setting out standard for both

con stitutional and non

- constitutional harm analysis) ; see also Chavez , 560 S.W.3d at 201 ( “ Even when shackles are not visible to the j u ry, however, shackling a defendant du ring trial is non

- constitutional error in v iolation of the common law unless it is nece ssary for a particular defendant in a particular proceeding. ” )

.9

C. Analysis Gennusa moved to have his leg sh ackles removed prior to t h e start of trial , and the trial court denied the motion without making a ny partic ularized findings regarding why it was neces sary to restrain Gennusa. The only reasons set forth in the record were a general policy of leaving restraints on people who were “ i n
cust ody. ” This is insufficient just ification for shackling Gennusa during the guilt

in nocence phase of trial, and thus we conclude that the trial court abused its di scretion in denying Gennusa ’ s motion remo ve the shackles. See Bell , 415 S.W.3d at 281 , 2 8 3

.

“ W hether this error is of constitu tional dimension in that it deprived [Gennu sa] of h is presumption of innocence turns on an additional inquiry: whether the record shows a reasonable probability that the jury was aware of [his] shackles. ” I

d. at 283. “ Shackle s are considered visible for co nstitutional purposes if

‘ the record reflec ts a re a sonable probability that the jury was aware of the defendant ’ s shackles. ’ ” Chavez , 560 S.W.3d at 201 (qu oting Bell , 415 S.W.3d at 283)

. Here , the trial court stated o n the record that the shackles would no t b e visible to the jurors be cause of how G ennusa w as position ed in the courtroom. The record also reflected that the trial court intended to take measure s to ensure that the jury did not see the shackles if Gennusa needed to move. After these statements

w ere m ade on the record, d efense counsel nev er raise d the issue of sha ckling again10

or expressed any concern that the jurors had an opportunity to see the shackles. We conclude that the rec ord reflects no reasonabl e proba bility that the jury was aware of Gen nusa ’ s shackle s . See id. Gennusa argues th at Juror 12 was aware of the shackles because he saw them during voir dire. W e observe, however, that after Juror 12 saw the leg

re straints, he indicated that he would not use that information in deciding Gennusa ’ s guilt or inn o c ence, and Gennusa affirmati vely ap p rov ed Juror 12 ’ s seating on the jury. There is no indication that Jur or 12 had any furthe r chance to

o bserve Gennusa ’ s restra ints or that he was aware whether they remained in place
or not. The fact that J uror 12 saw th e restraints during v oi r dire

— a conce rn which Gennusa effectively waived by agreeing to have Jur or 12 seated on the jury

— does
not establish a reasonable pro babili ty that Juror 12 or any other member of the jury

was aw are that the shackles wer e still in pla c e during the trial. Accordin gly , we conclude that we must review this error for non

- constitutional harm. See id. Under Rule 44.2(b), any non

- constitutional “error, defect, irregularity, or variance that does not affect substantial r i g hts mus t be disregarded.” T EX
. R. A PP
. P. 44.2(b). “A subs tantial right is affected when the error had a substantial and inj urious effect or influence in determining the jury ’ s verdict.” Schmutz v. State , 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In asse s s ing the likelihood that the jury ’ s deci sion was ad versely affected by the error, important factors to consider11

include the n ature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with o ther ev idence in the case. Id . The anal ysis may in clude wh ether the State emphasized the error and whether overwhelming evid ence of guilt was present. Id. The record does not show that the jury saw or was otherwise aware of Gennusa ’s shackles during the g u ilt

- in n ocence phase of trial

. There is no indicati on that Gennusa ’s shackles hampered his ability to participate in the tria l or to communicat e with his counsel. Furt hermore, significant evidence supports the finding of guilt. Marrder, Rhonda, and Howard a ll iden tified Gennusa in court as the man who forc ed his w ay into t he Rogers ’ home and assaulted Howard. Roulaine and Office r Villareal likewise testified about finding Gennusa cove red in blood a t the nearby dance studio immediately following the burgl ary and ass ault. Thus, considering the character of th e shackl ing error in connection with the strong evidence of Gennusa ’s guil t , we conclude that the error did not aff ect any substantial right. See T EX
. R. A PP
. P. 44.2(b) ; Schmutz , 440 S.W.3d at 39

. We ove r rule Ge nnusa ’ s first issue. Jury Argument In his s econd is sue, G ennusa argues that the trial court abused its di scretion in allowing the State to make an imp roper jury argument.12

A. Relevant Facts Durin g the punishment phase, the State began its jury argum ent : [ The S tate ]: Ladies and gentlemen, this was not a targete d attack.

Yeah, it wasn ’ t. That makes it even scarier. He had no i dea who these people were, where they lived. He could have gone into your house, your house, to your house. [ Gennusa ]: Objection , Y o ur Hono r. Improper argument. [Court] : Overruled. [ The Sta te] : He could have gone to anyone ’ s house. It just happened

to be the Rogers.

. . . The State continued its argument regard ing o ther aspects of the case and Gennusa ’s defense that h is allege d m e ntal il l ness was mitigating f actor in assessing hi s punishment

. The S t ate pointed out the violent nature of Gennusa ’s action s and his cr iminal record, among other factors. The Stat e then concluded, “ Aga in, this

wasn ’ t a targeted attack and that makes i t e v en wors e and as citizens of Harris County, I am as king you to sentence this man to prison. I ’ m asking you to take this

man o ff the streets, and I ’ m asking you to keep Harris County safe. Thank you. ” B. Standard of Review As a general rule, appropriate jur y a r gument falls within only four areas: (1) summation of the evid ence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Milton v. State , 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) . T h e focus , therefore, has always been upon encouragi ng the jury to decide the case on the13

evidence in front of it rather than encour aging juries to reach a decision based upon information outside the record. See id. at 240. This is because improper refer enc e s to in formation outsid e the record are generally designed to arouse the passion and prejudice of the jury, and, as such, ar e inap propriate. See id. Further, arguments must stick to matters that are in evidence or inferable from the evidence; it cannot be “abusiv e or inflammator y.” See id. at 241. To pres erve a compl aint that jury argument was improper, a defendant must lodge a “proper objection,” such as asserting “that the argument was outside the record, was not a reasonable deduction from the evidence, w as n ot an answer to argument of opposing counsel, and was not a plea for law enforcement.” Hougham v. State , 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.] 1983); Vasquez v. State , 501 S.W.3d 691, 705 (Tex. App.

— Houston [14th Dist.] 2016, pet. ref ’ d).

“ O rdi n ar ily, an objection to ‘ improper argument ’ is too general to preserve error. ” Miles v. State , 312 S.W.3d 909, 911 (Tex. App.

— Houston [1st Dist.] 2010, pet. ref ’ d) ( citing Hougham , 659 S.W.2d at 414 and collecting other cases on objections to jury argum ent )

. S tatements such as , “We will object to this line of
arg ument” are “in suf

f icient to preserve error” regarding a claim of improper jury argument because they are “too general to apprise the trial cou rt of the ground” for a defendant’s objection. Hougham , 659 S.W.2d at 414; se e T EX
. R. A PP
. P. 33.1(a) (1)(A) (r equ iring , as prer equ i site to review, that object ion “ s tated the14

grounds for the ruling that the complaining party sought from th e trial court wit h sufficient specificity to make the trial court aware of t he complaint, unless the specific grounds w ere apparent from the cont ext ” )

. C. A na lysis The State argues that Gen n u ssa ’ s general objection that the State ’ s

c omment s that “ this was not a targeted attack ” a nd Gennus a “ could have gone into your house, your house , to your house ” were “ improper argument ” is too genera l to
preserve a nyt h ing for our review. We agree. A general objection like t he one Gennusa made here c an be sufficient to preserve error when th e record shows the trial court understood the nature of th e objection

. See Gonzalez v. State , 541 S.W. 3d 306, 316 (Tex. App.

— Hou sto n [14th Dist.] 2017, no pet.) ; Vasquez , 501 S.W.3d at 705 (trial court ’ s understanding of objection may be evide nced by

co mments or admonitions after its ruling). However, nothing in the record provides any context for the obje ction, no r did the tria l c o urt make further rulings that would make the ground or grounds for Gen nusa ’ s general objection clear. Gen nusa did not specif

y at trial that he believed the Stat e ’ s comments encouraged j urors to aba ndon the ir objectivity, no r did he specify “that the ar gum e nt was outside the record, was not a reasonable deduction from the evidence, was not an answer to argument of opposing couns el, and was not a plea for law enforcement.” See Hougham , 659 S.W.2d at 414 ; Vasquez , 501 S.W.3d at 705

. We conclude tha t his15

ob jec t ion to “ improper argument ” was “ too general to preserve error. ” Miles , 312 S.W.3d at 911

. Even if this error were preserved, and assumin g without deciding that the State ’ s argument was an improper invitation to abandon objectivit y, Gennusa has failed to e stablish that he suffere d any harm. T o determine whether an appellant ’ s substantial rights were affected, we balance the sev erity of the misconduct (i.e., the prejudicial effect), any cu rative measure s, and the certainty of the pu nishment

as sessed abse nt t he misconduct. See Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (citing Martinez v. State , 17 S.W.3d 677, 6 92

– 93 (Tex. Crim. App. 2000) ). Applying these factors, we conclud e that the State ’ s comments did not affect G ennus a ’ s su bstantial r igh t s. The State ’ s objectionable comments consisted of one
sentence preceded and f ollowed by a proper discussion of the evidence and the State ’ s arg ument that the offense was random, rather than targeted . Further, the severity of the misconduct as measured by the prejudicial effect of the State ’ s remarks is slight. The jury was reminded of the State ’ s burden of proo f prior to the S tate ’ s closing argument and in the court ’ s jury charge. And th e strength of the evidence supporting the as sessment of a 35

- year se n t ence was strong. A s we stated

a bove, Marrder, Rhonda, and Howar d all identified Gennusa in court as the man who forced his wa y into t he Rogers ’ home and assaulted Howard

. The details of16

Gen nusa ’ s ass ault of Howard were graphic , and How ard an d Rhonda both testified about the negative impac t the offense had on them phys ically and emotiona lly

. The State also presented evidence of G ennusa ’ s crimina l history, including proving an enhance ment base d on G ennusa ’ s previous conviction for assault again st a family member as a repeat offender. Given these factors, we have fair ass urance that the State ’ s comments had little or no effect. See Hawkins , 135 S.W.3d at 77 ; s ee also Franklin v. State , 459 S.W.3 d 670 , 68 1

– 8 2 (Tex. App.

— Texarkana 2015, pet. ref ’ d) (concluding that , although prosecutor ’s plea t o jurors to “fight for those littl e girls ” was improper plea to ab a ndon obj ectivity, error wa s harmless because

sev erity of misconduct wa s slight, jurors were r emind e d of proper burden of proof, and evidence s upporting conviction was strong). We overrule Ge nnusa ’ s second issue

.

Reformation of Jud gment In his third issue , Gennusa ask s this Court to modify the judgment to
proper ly reflect tha t he was convicted of b urgla r y of a habitation with intent to commit agg ravated assault

. The record here, including the indictment and jury charge , refle ct that Gen nusa was charged with and convicted of burglary of a habitation with the intent to commit ag gravate d assault. Howev er, t h e judgment of conviction erroneously17

states that he was c onvicted of burglary of a habitation with the intent to commit thef t.

“ This court has the power to modify an incorrect judgme nt to make the record speak the truth when w e have the necessary in forma t ion to do so. ” Cazarez v. State , 6 06 S.W.3d 549 , 557

– 58 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) (citing T EX
. R. A PP
. P

. 43.2(b) and Bigley v. State , 865 S.W.2d 26, 27

– 28 (Tex. C rim. App. 1993) ) ; see also Pfeiffer v. State , 363 S.W.3d 594, 599 ( Tex. C rim. App. 2012) (“[W]hen a defendant appeal s his conviction, the courts of appeals have the jurisdiction to address any erro r i n that case.”). “ This includes the authority to reform a judgment to reflect the correct offense. ” C azarez , 6 0 6 S.W.3d at 5 58 (r e forming judgment to reflect correct degree of theft) ; see Pfeiffer , 363 S.W.3d at 599; see also Jackson v. State , 288 S.W.3d 60, 64 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref ’ d) (r eforming judgment to reflect that appellant was convicted of aggrav ated a ssault and not “ag gravated assault against pb servant”). T he record here reflects that Gennusa was convicted of burg lary of a habitation with the intent to commit aggravated assault, rather than with the intent to commit theft . Acco rdingly, w e ref o rm the judgment to reflect the corr ect offense.18

W e sustain Gennusa ’ s third issue and modify the judgment to reflect the

corr ect offense

—

burglary of a habitation with the intent to commit agg ravated assault. Conclusion We modi fy the ju dgment to reflec t tha t Gennusa was convicted of burglary of a habitation with intent to commit aggravated ass ault. We affirm as modified.

Rich ard Hightower Justice Panel consists of Justices Kell y, Hightower, and Countiss. Do not publish. T EX
. R. A PP
. P. 47.2 (b).