Michael Wayne Brown v. State ( 1992 )

Brown v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-91-057-CR

     MICHAEL WAYNE BROWN,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 90-809-C

OPINION ON REHEARING

      In a motion for rehearing, Michael Wayne Brown asserts that we erred in failing to consider whether the wearing of a leg brace, and questioning about the brace, was fundamental error. He also contends that we erred in not allowing him to file a supplemental brief raising the issue of ineffective assistance of counsel.

      At trial, Brown apparently appeared before the jury under the physical restraint of a type of leg brace that could be concealed beneath his trouser leg. Brown did not object to wearing the brace, and there is no evidence in the record that the jury saw the physical restraint. In cross-examining him about the offense, the State briefly questioned Brown about the effects of the brace, without objection.

      Because he did not object, Brown did not preserve his complaint for appellate review. See Tex. R. App. P. 52(a). Almost every right, constitutional and statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Brown asserts that the error was fundamental and may be addressed for the first time on appeal, despite the lack of a trial objection.

      This court has jurisdiction to entertain unassigned fundamental error in a criminal case. See Carter v. State, 656 S.W.2d 468, 468 (Tex. Crim.App. 1983). Once jurisdiction is invoked, our appellate review is limited only by our own discretion or a valid restrictive statute. See id. at 469. Fundamental error affecting substantial rights of a defendant may be addressed even though it was not brought to the attention of the trial court. Tex. R. Crim. Evid. 103(d). Having carefully reviewed the entire record, we do not find that questioning Brown about the effects of the brace was fundamental error requiring our reversal of his conviction under Rule 103 without preserved error. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

      As set forth in our opinion, we recognize that an accused should not be compelled to go to trial in jail clothing because it might impair the presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976). To preserve the error, however, an accused must object before or during trial to being compelled to wear jail clothing. Id. at 509-10, at 1694. Likewise, the constitutional presumption of innocence is infringed when the jury sees the accused in handcuffs or shackles. Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). However, a momentary, inadvertent, and fortuitous encounter outside of the courtroom between a handcuffed accused and jurors does not necessarily call for a mistrial or reversal. Clark v. State, 717 S.W.2d 910, 919 (Tex. Crim. App. 1986).

      We have reviewed the entire record and do not find that his wearing a concealed brace was error so "fundamental" as to justify our reversal of the conviction without preserved error. See Tex. R. App. P. 52(a); Briggs, 789 S.W.2d at 924.

      Appellate counsel for Brown filed a brief on June 10, 1991. The State filed its response brief on July 5th. Brown filed a pro-se motion for an extension of time to file a supplemental brief on August 8 in which he alleged that his trial counsel had been ineffective in failing to object to the leg brace, in failing to file pretrial motions, and in failing to properly prepare for trial. We denied the motion on August 28th.

      Submission and oral argument were set for December 18. Apparently, appellate counsel telecopied a motion and supplemental brief to the State on December 16, raising the issue of ineffective assistance of counsel. On December 17, the State filed a motion opposing Brown's supplemental points. Brown's counsel actually filed the motion for leave to file a supplemental brief on December 18, the date of oral arguments. The motion was denied January 8, 1992.

      Rule 74(o) of the Rules of Appellate Procedure allows briefs to be amended "at any time when justice requires." Tex. R. App. P. 74(o). As to Brown's pro-se request to file a supplemental brief, an appellant has no right to hybrid representation when he is represented by counsel who files a brief. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981). As to whether we should consider matters raised in a supplemental brief, that decision is within our discretion, absent exceptional situations involving constitutional restraints or "the interest of justice." See Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990).

      Brown alleges that, by refusing to consider his supplemental brief, we have effectively foreclosed appellate review of his claims. However, he may bring his claim of ineffective assistance of counsel by way of a writ of habeas corpus. See Ex parte Duffy, 607 S.W.2d 507, 512-13 (Tex. Crim. App. 1980). In many cases involving claims of ineffective assistance of counsel, the record on appeal does not adequately reflect the alleged failings of trial counsel. Id. at 513. In these situations, the collateral attack of habeas corpus may be the best method by which a thorough and detailed examination of alleged ineffectiveness may be developed. Id.

      We deny Brown's motion for rehearing.

                                                                                     BILL VANCE

                                                                                     Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Motion for rehearing denied

Opinion delivered and filed April 22, 1992

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he then watched him closely during the next two or three minutes as he proceeded to walk from the entrance to the cash register and then demand the "big bills" from Harcrow. See Holder v. State, 837 S.W.2d 802, 804 (Tex. App.—Austin 1992, pet. ref'd) (two to three minutes ample time to view assailant); Richardson v. State, 730 S.W.2d 371, 373 (Tex. App.—Dallas 1987), rev'd on other grounds, 761 S.W.2d 13 (Tex. Crim. App. 1988) (less than a minute is adequate if degree of attention is high). The extended amount of time Patricia had to view Schroeder added to the reliability of her in-court identification.

           2. Degree of Attention

          Patricia's attention was fixated upon Schroeder. She noticed him when he first entered the store because he was the only person in the store besides herself, her family, and Harcrow. Her attention was drawn even closer to Schroeder as he walked from the telephone booths to the cash register because she spotted the pistol in his right hand. Patricia's concern for her own safety as well as her family's compelled her to focus upon Schroeder's movements with the greatest degree of attention. See Richardson, 730 S.W.2d at 373.

          3. Accuracy of Prior Description

          Patricia, before identifying Schroeder in the single photograph, described the robber as a man with a long, drawn face, a prominent chin, long hair, and wearing sunglasses, blue jeans, black shoes, a camouflaged jacket, and a white hat with lettering on it. The combination of the accuracy of this physical description along with the specificity in her recollection of Schroeder's apparel renders Patricia's subsequent identifications in the line-up and courtroom extremely reliable. See Delk, 855 S.W.2d at 706-707; Navarette v. State, 875 S.W.2d 452, 454 (Tex. App.—Corpus Christi 1994, no pet.); Richardson, 730 S.W.2d at 373.

          4. Certainty in Subsequent Identifications

          Patricia identified Schroeder three times after examining the single photograph. She positively identified him during an in-person lineup which included Schroeder and five other men. Later, on the day of his trial, Patricia made two more positive identifications of Schroeder, once during the hearing on Schroeder's motion to suppress and once during the guilt-innocent phase of the trial. The certainty of Patricia's subsequent identifications indicates she was able to identify Schroeder not from the single photograph but from her view of him during the robbery. See Navarette, 875 S.W.2d at 454; Holder, 837 S.W.2d at 804.

          5. Time Between Crime and Identification

          Twenty-three days passed between the commission of the robbery and Patricia's identification of Schroeder in the single photograph. Twenty-three days was a short enough time where Patricia would not be expected to have forgotten Schroeder's appearance. See Turner v. State, 850 S.W.2d 762, 767 (Tex. App.—El Paso 1993) (six months not excessive); Delk, 855 S.W.2d at 707 (eighteen months).

          Considering these factors we determine that the facts evident in the record support the trial court's implicit finding that Patricia's in-court identification of Schroeder was independently reliable and not the product of any taint from a preceding impermissible identification. Consequently, Schroeder's first point is overruled.

                                        II. SUFFICIENCY OF THE EVIDENCE

          In his second point Schroeder contends the evidence admitted at his trial was insufficient to support the jury's implied finding the he was the man who robbed Duke's on March 20. We disagree.

          The standard of review for challenges to sufficiency claims is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Gunter v. State, 858 S.W.2d 430, 438 (Tex. Crim. App. 1993), cert. denied, -- U.S. --, 114 S. Ct. 318; Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991), cert. denied, -- U.S. --, 112 S. Ct. 202.

          Patricia Zimmerman identified Schroeder during the trial and provided testimony on his actions in committing the robbery. Janet Monthie testified that she had seen Schroeder in Duke's more than once during the day on March 20. Harcrow, while not able to identify Schroeder positively, testified that the assailant was a man with physical characteristics similar to Schroeder's. These facts are sufficient to support a rational trier of fact's finding beyond a reasonable doubt that Schroeder was the man who robbed Duke's on March 20. Schroeder's second point is overruled. Because we overrule Schroeder's two points, the judgment of the trial court is affirmed.

                                                                                 BOBBY L. CUMMINGS,

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed November 16, 1994

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