Opinion
No. 14-05-00435-CR
Memorandum Opinion filed August 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1022770. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
MEMORANDUM OPINION
Appellant, Julian Garcia Ramirez, was convicted by a jury of aggravated sexual assault of his five-year-old daughter, D.R., and received a forty-five year prison sentence. He asks this Court to reverse his conviction and order a new trial because (1) he was forced to proceed with a jury trial while wearing leg shackles and (2) he was denied his constitutional due process right to present a defense when the trial court refused to admit alternative perpetrator evidence. We affirm. Appellant argues, in his first point of error, that being forced to wear leg shackles throughout his jury trial impermissibly infringed upon his constitutional right to due process and the presumption of innocence. Before voir dire began, appellant's attorney objected to the fact appellant was forced to wear leg shackles. Defense counsel stated there is no showing appellant was a threat to anyone, and the shackling was improper and prejudicial to appellant's right to a fair trial. Appellant's attorney expressed concern that the shackles would be visible to any venire member called to the bench for questioning, and based his objection upon denial of due process and equal protection under the federal and state constitutions. Defense counsel asked the court to remove appellant's shackles in light of the absence of any allegation or factual basis to justify the shackling. The prosecutor replied that appellant's criminal history, including manslaughter and two counts of assaulting a family member, justified the restraints. The trial court gave no reason for requiring appellant to wear shackles, and there is nothing in the record to indicate appellant posed any threat during his trial. Instead, the following exchange ensued prior to bringing the jury panel into the courtroom:
The Court: Let the record reflect that Mr. Ramirez is seated in a position where it is in the Court's opinion impossible, absolutely impossible for any member of the venire while seated in the courtroom, to tell that Mr. Ramirez has leg irons. When we bring jurors to the bench, Mr. Ramirez will position himself in such a way where the leg irons would not be visible to any potential veniremen.
[Defense]: Let the record reflect I'm standing where we would bring potential jurors up to be questioned at the bench and that I can see from this point the leg irons on Mr. Ramirez. So, it's not impossible for someone to see that. I think it would be impossible for him to position himself in any way, shape, or form from where he is sitting to avoid that potential. There's no way to hide that, Judge. When the jurors turn around to go back to their seat out in the audience, they're going to be able to see the leg irons.
The Court: Well, let the record reflect when jurors at the bench are facing me, they will have their back to your client, and we can put a box — your client can turn to the left, we put a box there, and it will not be possible for any potential juror to . . . see the leg irons.
[Defense]: I'll state this for the record. The box has been placed there and —
The Court: Hold on a minute. Mr. Ramirez, turn to your left, please. Scoot forward toward the table.
The Bailiff: Scoot up.
The Court: See any leg irons now?
[Defense]: I'll state for the record I do not.
The Court: It's impossible. So, your objection is overruled.
After the jury was selected and before trial began the next day, appellant's attorney renewed his objection because there was no articulable reason for the shackling.
[Defense]: I assume the Court is going to maintain [the shackling] throughout the whole trial?
The Court: Correct.
[Defense]: So, any time the jury is outside here and Mr. Ramirez is in the courtroom, he'll be shackled; is that correct?
The Court: Correct.
[Defense]: Then I'd like to have a running objection for the same reasons stated yesterday to that situation.
The Court: You agree it's impossible for the jury to see these shackles?
[Defense]: Well —
The Court: Do you agree with that?
[Defense]: As he is sitting right now, Judge, yes.
The Court: Okay.
[Defense]: Whether or not something comes up —The Court: If something comes up, we'll deal with it when it comes up, but I intend for the jury to never to [sic] see these shackles. The only other reference to the restraints was made prior to appellant's testimony in this case. The trial court sent the jury out, allowed appellant to take the witness stand, and asked appellant to position his feet so the jury could not see his restraints. When appellant finished testifying, the trial court excused the jury before appellant left the witness stand. A defendant's due process right to the presumption of innocence is seriously infringed when a jury sees him in handcuffs or shackles. Cooks v. State, 844 S.W.2d 697, 722 (Tex.Crim.App. 1992). A trial court should make all efforts to prevent the jury from seeing the defendant in shackles, except where there is a showing of exceptional circumstances or other manifest need for the restraint. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App. 1991); Clark v. State, 717 S.W.2d 910, 919 (Tex.Crim.App. 1986). It is within the trial court's discretion to order a defendant to be tried in handcuffs or shackles. Long, 823 S.W.2d at 282. When reviewing this issue on appeal, we must determine whether the trial court abused its discretion and, to assist in this determination, the record must clearly and affirmatively reflect the reasons for the restraint. Id. The crime charged or a general concern for courtroom security are not sufficiently specific reasons to require shackles. Id. at 283; see also Jacobs v. State, 787 S.W.2d 397, 407 (Tex.Crim.App. 1990) (finding trial court did not abuse discretion in requiring defendant to wear shackles during trial even when record reflected some jurors saw restraints, as defendant had a history of escapes and had expressed a wish to die rather than be incarcerated for life). If we find the trial court abused its discretion, we must determine whether the error prejudiced appellant. TEX. R. APP. P. 44.2(a). Because this error implicates the appellant's constitutional rights, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Id. Because the record contains no evidence or explanation for requiring appellant to be tried in leg shackles, we find the trial court abused its discretion. We cannot, however, find this abuse prejudiced or harmed appellant. The record contains no indication that any venire member or juror ever saw appellant's restraints. On the contrary, the trial judge ensured the shackles were hidden behind a box, and appellant's attorney twice stated that he could not see appellant's restraints. We find appellant was not harmed by the trial court's order to restrain him during trial. See Grayson v. State, 192 S.W.3d 790, 793 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (stating that although requiring a criminal defendant to be tried in restraints without adequate reason is repugnant to the spirit of our laws and ideas of justice, appellate court was bound by precedent to find defendant was not harmed when the record contained no evidence the jury ever saw defendant's shackles). Appellant's first point of error is overruled. Appellant argues in his second point of error that he was deprived of his right to present a defense when the trial court refused to admit his alternative perpetrator evidence. During trial, the court granted the prosecutor's motion in limine regarding defense evidence that appellant's brother, David Ramirez, had sexually assaulted other young girls. During a hearing outside the jury's presence, appellant's sister, Linda Ybarra, testified that David had sex with her when she was between two and five years old. She also said David was accused of sexually abusing children at the church where he was a minister. The defense also offered Maria Barrara's testimony. Barrerra testified outside the jury's presence that David admitted to her that he sexually abused children at his church and that he was in love with one eleven-year-old girl, as well as other girls. The defense argued this testimony showed David is an admitted child abuser, and pointed out that D.R. and her younger brother were sent to live with David for approximately one year after appellant was arrested in September of 2002. The defense used D.R.'s prior testimony that it did not hurt when her father had sex with her, but that she experienced pain in the lower part of her body "where [her] private part is" when she was six or seven years old, to argue this "is some indication that something may have been going on while she was living with David." Defense counsel also noted that appellant was in jail when D.R. was six and seven years old. The trial court denied the defense's proffered testimony without stating a reason. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Ruth v. State, 167 S.W.3d 560, 566 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). "Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense." Potier v. State, 68 S.W.3d 657, 663 (Tex.Crim.App. 2002). There are two ways such error might violate a defendant's constitutional rights: (1) by following a state evidentiary rule that categorically and arbitrarily stops the defendant from offering relevant, reliable evidence vital to his defense, or (2) by a trial court's clearly erroneous ruling excluding relevant, reliable evidence that "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399, 405 (Tex.Crim.App. 2002) (quoting Portier, 68 S.W.3d at 665). Appellant's argument falls into the second category. Although the trial court did not specify a reason for denying the defense's proffered testimony, the prosecutor originally moved to exclude this testimony on grounds that, inter alia, it was unfairly prejudicial to the State's case under Texas Rule of Evidence 403. We will uphold the trial court's ruling to exclude evidence if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Appellant has not shown the trial court's ruling was erroneous. Trial courts making an evidentiary ruling under Texas Rule of Evidence 403 must be sensitive to the special problems presented by alternative perpetrator evidence when weighing the probative value of evidence against its prejudicial effect. Wiley, 74 S.W.3d at 406. While a defendant has a right to defend himself by showing someone else committed the crime,
he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged "alternative perpetrator."Id. Appellant has shown no such nexus. The fact David abused his sister Linda when she was between two and five years old, or that he admitted to sexually abusing children at his church, does not show he committed any crime against D.R. This is especially so when D.R. testified she was sure it was her father who "did these things" to her, even though she has lived in many houses with many different people, including David and other male adults. Even if we were to find this testimony somehow tied David to this crime, the evidence could not survive a Rule 403 balancing test due to its highly speculative nature. See id. at 407 (stating evidence that another person may have assisted an unknown alternative perpetrator in committing the crime is too speculative to survive Rule 403 balancing test). Nothing in the record suggests David ever sexually abused D.R. The defense asserts only that David abused other children and that the fact D.R. experienced pain in the lower part of her body "where [her] private part is" during a time she lived with David may indicate he abused D.R. But D.R. consistently reported she was abused by her father when she was five years old, not that she was abused by her uncle when she was six or seven. The record does not indicate what caused her pain when she was six or seven years old, only that D.R. may have had a yeast infection or mucus discharge at the time of her physical examination in September of 2004. A defendant cannot offer unsupported speculation that another person may have committed the crime; this speculative blaming increases the risk of confusing the jury and invites a jury verdict based on emotion or prejudice. Id. at 407. We find appellant established no nexus between David and the crime charged, and that the threat of confusing the jury with speculative, meager evidence was too high to properly admit it before the jury. Appellant's second point of error is overruled. We affirm the trial court's judgment.
The manslaughter charge arose when a firearm appellant was playing with accidentally discharged. He initially received a deferred sentence but spent three years in prison after he stopped reporting to his probation officer. The family member who was twice assaulted by appellant testified for the defense during this trial.
Appellant's argument to this Court that trial testimony showed D.R. gave conflicting accounts of where the abuse occurred lacks support in the record. Detective Mark Morgan filed charges against appellant and erroneously listed D.R.'s address when she reported the abuse (a house) as the location of the assault. D.R., however, has consistently stated the abuse happened in the apartment where she lived.
The State argues appellant has not preserved his constitutional argument because he failed to make an objection on this ground at trial. During trial and pursuant to the State's motion in limine, counsel for the defense alerted the court before eliciting this testimony outside the jury's presence. Defense counsel also explained the defensive theory to show the testimony's relevance before the trial court refused to allow either witness' testimony into evidence. To preserve error in the exclusion of evidence, the complaining party must actually offer the evidence or a summary of the evidence and secure an adverse ruling from the court. TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.1(a); Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App. 1984) (explaining if there is no showing of what the excluded testimony would have been, nothing is presented for review); Fox v. State, 115 S.W.3d 550, 559 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding error properly preserved when record was clear that the nature of the excluded evidence was apparent to everyone). We find appellant has properly preserved this issue for appeal.