in the Interest of L.A., A.R., S.A.H., and D.S.L.H., Children ( 2008 )


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  •                            COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-236-CV
    IN THE INTEREST OF L.A., A.R., S.A.H.,
    AND D.S.L.H., CHILDREN
    ------------
    FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    Appellants Latacha R. and Byron H. appeal from the trial court’s order
    terminating Latacha’s parental rights to her four children, L.A., A.R., S.A.H.,
    and D.S.L.H., and Byron’s rights to his two children, S.A.H. and D.S.L.H. We
    affirm.
    1
    … See T EX. R. A PP. P. 47.4.
    Factual and Procedural Background
    L.A., A.R., S.A.H., and D.S.L.H. are ten, seven, five, and four years of
    age, respectively. Latacha is the biological mother of all four children. Byron
    is the biological father of S.A.H. and D.S.L.H. Latacha is married to Izell R. 2
    Latacha and Izell separated in May or June of 2002. Latacha met Byron in early
    2002, and they began living together in the summer of 2002.
    L.A. suffers from what one psychologist diagnosed as mild mental
    retardation, and she has an IQ of 63. 3 In 2002, when L.A. was four years old,
    she made a sexual abuse outcry to her maternal grandmother, Estella B. Estella
    testified that L.A. told her that Byron had touched her “goochie” or privates.
    About a week later, L.A. moved in with Estella’s son, Devarius B., and his
    girlfriend, Natasha G., in Austin. Natasha testified that L.A. told her that her
    “goochie” hurt, that Byron hurt her, and that she did not want to go back to the
    “blue house” where Byron lived. Natasha and Devarius took L.A. to a Child
    Advocate Center. The Department eventually “ruled out” the allegation for
    physical abuse and sexual abuse.
    2
    … Izell is the presumed father of A.R., S.A.H., and D.S.L.H. The trial
    court terminated Izell’s parental rights, and Izell did not appeal the trial court’s
    order.
    3
    … But L.A.’s special-needs teacher testified that L.A. scored a 74 on
    another IQ test, which is four points above the cutoff for mental retardation.
    2
    Eric Franklin, the supervisor of investigations for Travis County Child
    Protective Services, testified that the Department received four other referrals
    for the family in the eight months after December 2002. In February 2004, the
    Department received a risk referral regarding allegations that Byron had sexually
    abused his ten-year-old biological daughter, who lived in Montana. In May
    2004, the Department received another referral regarding Byron’s abuse of one
    of L.A.’s younger siblings. The Department recieved two more referrals in
    2005 for physical abuse and physical neglect.
    In July 2006, Byron’s mother, Salome H., received a voicemail message
    on which she thought she heard L.A. crying out for help (a Department
    caseworker testified that subsequent analysis of the voicemail showed
    Salome’s interpretation to be unfounded). Concerned about L.A.’s and the
    other children’s safety, Salome retrieved all four children from Byron’s home.
    L.A. told Salome that “my daddy took me in the bedroom and pulled my pants
    down, . . . he had a long brown thing between his legs, and he put it in my
    butt.” Salome reported L.A.’s outcry to the police. In a videotaped interview,
    L.A. told a Department investigator that Byron told her to bend over and that
    he “poked” her “bottom” with an object she called a “ranus.” When asked by
    the Department interviewer to draw a picture of Byron and his penis, she drew
    the penis separate and detached from his body. Latacha consented to a search
    3
    of the apartment she shared with Byron, and in the apartment police found and
    photographed a vibrator and a dildo. The trial court admitted the photographs
    into evidence over Latacha’s and Byron’s objections.       Dr. Jamye Coffman,
    director of the child abuse program at Cook Children’s Medical Center, testified
    that L.A. told her that her daddy “put his penis in [her] butt”; that her mom was
    just standing there watching; that she told her mom that it hurt, but her mom
    didn’t do anything; and that she passed blood with a bowel movement
    afterwards.
    Based on L.A.’s outcry, the Department removed the children and placed
    them with Byron’s mother. The State charged Byron with sexually assaulting
    L.A. in 2002, and Byron remained in jail awaiting trial when the termination
    case went to trial. A jury found that Latacha and Byron had endangered the
    children and that termination was in the children’s best interest, and the trial
    court terminated their parental rights.
    4
    Discussion
    1.    Admission of photographs of sexual device
    Latacha, in her first issue, and Byron, in his second issue, both argue that
    the trial court erred by admitting into evidence two photographs of the dildo
    police found in their apartment because the danger of unfair prejudice
    substantially outweighed the photograph’s probative value.
    Although relevant, evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice, confusion of the
    issues, or misleading the jury, or by considerations of undue delay or needless
    presentation of cumulative evidence. T EX. R. E VID. 403. A Rule 403 analysis
    should include consideration of (1) how probative the evidence is; (2) the
    potential of the evidence to impress the jury in some irrational, but nevertheless
    indelible way; (3) the time the proponent needs to develop the evidence; and(4)
    the proponent’s need for the evidence. Shuffield v. State, 
    189 S.W.3d 782
    ,
    787 (Tex. Crim. App.), cert. denied, ___ U.S. ___ (2006). When considering
    photographs admitted over a Rule 403 objection, the reviewing court should
    also consider the number of photographs, the size of the photographs, whether
    they are in color or black and white, and the detail shown in the photographs.
    
    Id. (also listing
    considerations not applicable here).
    5
    The admissibility of photographs over a challenge is within the sound
    discretion of the trial court. In re J.B.C., 
    233 S.W.3d 88
    , 94 (Tex. App.—Fort
    Worth 2007, pet. denied). Because Rule 403 favors admissibility of relevant
    evidence, the presumption is that relevant evidence will be more probative than
    prejudicial. Montgomery v. State, 
    810 S.W.2d 372
    , 389 (Tex. Crim. App.
    1990) (op on reh’g). The burden is on the opponent of the proffered evidence
    to demonstrate the prejudicial attributes of the evidence and to show how these
    attributes substantially outweigh the probative value of the evidence. Goldberg
    v. State, 
    95 S.W.3d 345
    , 367 (Tex. App.—Houston [1st Dist.] 2002, pet.
    ref’d), cert. denied, 
    540 U.S. 1190
    (2004).
    In this case, the photographs of the dildo found in Latacha and Byron’s
    apartment was probative evidence that supported L.A.’s outcry that Byron had
    penetrated her anus with an object she described as a “ranus.”              The
    photographs certainly had the potential to impress the jury in a way that was
    unfavorable to Latacha and Byron and possibly indelible, but we cannot say that
    the impression so formed would be irrational, particularly in a case where a key
    question for the jury was the credibility of L.A.’s testimony that she had been
    sexually assaulted with a foreign object.     The Department spent little time
    developing the evidence. As both Latacha and Byron point out, there was
    ample testimony about L.A.’s outcry that she had been sexually assaulted with
    6
    a “ranus,” and a police officer described finding the dildo, but the testimony
    was inadequate to describe the device itself; this case proves the time-worn
    cliché that a picture is worth a thousand words. Thus, the Department had a
    need for the evidence.
    One of the photographs is approximately eight by ten inches and the
    other is approximately five by seven inches. The first photograph was taken
    outside a closet and depicts the areas both inside and outside the closet, and
    the dildo is just visible though the closet door. The second photograph presents
    a wide-angle view of the closet floor. In both photographs, the image of the
    dildo itself is occupies a small portion—less than one percent of the five by
    seven and about 1/10 of one percent of the eight by ten—of the whole
    photograph. The copies filed in this court are black and white; presumably, the
    original exhibits are in color, but neither Latacha nor Byron suggest that the
    color of the photographs presented a danger of unfair prejudice.
    We hold that Latacha and Byron have failed to show how the
    photographs’ prejudicial attributes outweighed their probative value and that the
    trial court did not abuse its discretion by overruling their Rule 403 objections.
    We overrule Latacha’s first issue and Byron’s second issue.
    7
    2.    Legal and Factual Sufficiency
    Latacha, in her second issue, and Byron, in his third issue, challenge the
    legal and factual sufficiency of the evidence to support the jury’s grounds-for-
    termination and best interest findings. As grounds for termination, the jury
    found that Latacha violated paragraphs (D) and (E) of family code section
    161.001(1) with regard to all four children and that Byron violated the same
    paragraphs with regard to S.A.H. and D.S.L.H.
    a.     Standard of review
    A    parent’s   rights   to   “the   companionship,   care,   custody,   and
    management” of his or her children are constitutional interests “far more
    precious than any property right.”         Santosky v. Kramer, 
    455 U.S. 745
    ,
    758–59, 
    102 S. Ct. 1388
    , 1397 (1982); In re M.S., 
    115 S.W.3d 534
    , 547
    (Tex. 2003). In a termination case, the State seeks not just to limit parental
    rights but to end them permanently—to divest the parent and child of all legal
    rights, privileges, duties, and powers normally existing between them, except
    for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b) (Vernon
    Supp. 2007); Holick v. Smith, 
    685 S.W.2d 18
    , 20 (Tex. 1985). We strictly
    scrutinize termination proceedings and strictly construe involuntary termination
    statutes in favor of the parent. 
    Holick, 685 S.W.2d at 20
    –21; In re E.M.N.,
    
    221 S.W.3d 815
    , 820 (Tex. App.—Fort Worth 2007, no pet.).
    8
    In proceedings to terminate the parent-child relationship brought under
    section 161.001 of the family code, the petitioner must establish at least one
    ground listed under subdivision (1) of the statute and must also prove that
    termination is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001
    (Vernon Supp. 2007); In re J.L., 
    163 S.W.3d 79
    , 84 (Tex. 2005).                Both
    elements must be established; termination may not be based solely on the best
    interest of the child as determined by the trier of fact. Tex. Dep’t of Human
    Servs. v. Boyd, 
    727 S.W.2d 531
    , 533 (Tex. 1987).
    Termination of parental rights is a drastic remedy and is of such weight
    and gravity that due process requires the petitioner to justify termination by
    clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
    In re J.F.C., 
    96 S.W.3d 256
    , 263 (Tex. 2002). This intermediate standard falls
    between the preponderance standard of ordinary civil proceedings and the
    reasonable doubt standard of criminal proceedings. In re G.M., 
    596 S.W.2d 846
    , 847 (Tex. 1980); In re C.S., 
    208 S.W.3d 77
    , 83 (Tex. App.—Fort Worth
    2006, pet. denied). It is defined as the “measure or degree of proof that will
    produce in the mind of the trier of fact a firm belief or conviction as to the truth
    of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
    (Vernon 2002).
    9
    When reviewing the evidence for legal sufficiency in parental termination
    cases, we must determine whether the evidence is such that a fact-finder could
    reasonably form a firm belief or conviction that the grounds for termination
    were proven.    In re J.P.B., 
    180 S.W.3d 570
    , 573 (Tex. 2005).         We must
    review all the evidence in the light most favorable to the finding and judgment.
    
    Id. This means
    that we must assume that the fact-finder resolved any disputed
    facts in favor of its finding if a reasonable fact-finder could have done so. 
    Id. We must
    also disregard all evidence that a reasonable fact-finder could have
    disbelieved. 
    Id. We must
    consider, however, undisputed evidence even if it is
    contrary to the finding. 
    Id. That is,
    we must consider evidence favorable to
    termination if a reasonable fact-finder could and disregard contrary evidence
    unless a reasonable fact-finder could not. 
    Id. We must
    therefore consider all of the evidence, not just that which favors
    the verdict. 
    Id. But we
    cannot weigh witness credibility issues that depend on
    the appearance and demeanor of the witnesses, for that is the fact-finder’s
    province. 
    Id. at 573,
    574. And even when credibility issues appear in the
    appellate record, we must defer to the fact-finder’s determinations as long as
    they are not unreasonable. 
    Id. at 573.
    When reviewing the evidence for factual sufficiency, we must give due
    deference to the fact-finder’s findings and not supplant the verdict with our
    10
    own. In re H.R.M., 
    209 S.W.3d 105
    , 108 (Tex. 2006). We must determine
    whether, on the entire record, a fact-finder could reasonably form a firm
    conviction or belief that the parent violated the relevant conduct provision of
    section 161.001(1) and that the termination of the parent’s parental rights
    would be in the best interest of the child. In re C.H., 
    89 S.W.3d 17
    , 28 (Tex.
    2002). If, in light of the entire record, the disputed evidence that a reasonable
    fact-finder could not have credited in favor of the finding is so significant that
    a fact-finder could not reasonably have formed a firm belief or conviction in the
    truth of its finding, then the evidence is factually insufficient. 
    H.R.M., 209 S.W.3d at 108
    .
    b.    Endangerment as grounds for termination
    Paragraph (D) of family code section 161.001(1) authorizes termination
    if a parent knowingly placed or knowingly allowed the child to remain in
    conditions or surroundings that endanger the child’s physical or emotional well-
    being, and paragraph (E) authorizes termination if a parent engaged in conduct
    that endangers the child’s physical or emotional well-being. T EX. F AM. C ODE
    A NN. § 161.001(1)(D), (E).
    Endangerment means to expose to loss or injury, to jeopardize. 
    Boyd, 727 S.W.2d at 533
    ; see also In re M.C., 
    917 S.W.2d 268
    , 269 (Tex. 1996).
    Under subsection (D), it is necessary to examine evidence related to the
    11
    environment of the child to determine if the environment was the source of
    endangerment to the child’s physical or emotional well-being. In re D.T., 
    34 S.W.3d 625
    , 633 (Tex. App.—Fort Worth 2000, pet. denied). Conduct of a
    parent in the home can create an environment that endangers the physical and
    emotional well-being of a child.   In re W.S., 
    899 S.W.2d 772
    , 776 (Tex.
    App.—Fort Worth 1995, no writ). For example, abusive or violent conduct by
    a parent or other resident of a child’s home may produce an environment that
    endangers the physical or emotional well-being of a child. See 
    id. at 776–77;
    Ziegler v. Tarrant County Child Welfare Unit, 
    680 S.W.2d 674
    , 678 (Tex.
    App.—Fort Worth 1984, writ ref’d n.r.e.).
    Under subsection (E), the relevant inquiry is whether evidence exists that
    the endangerment of the child’s physical well-being was the direct result of the
    parent’s conduct, including acts, omissions, or failures to act. In re R.D., 
    955 S.W.2d 364
    , 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Tex.
    Dep’t of Protective & Regulatory Servs., 
    907 S.W.2d 81
    , 83–84 (Tex.
    App.—Dallas 1995, no writ).         Additionally, termination under section
    161.001(1)(E) must be based on more than a single act or omission; a
    voluntary, deliberate, and conscious course of conduct by the parent is
    required. T EX. F AM. C ODE A NN. § 161.001(1)(E); 
    D.T., 34 S.W.3d at 634
    ; In re
    K.M.M., 993 S.W .2d 225, 228 (Tex. App.—Eastland 1999, no pet.). Under
    12
    either subsection (D) or (E), it is not necessary that the parent’s conduct be
    directed at the child or that the child actually suffer injury. 
    Boyd, 727 S.W.2d at 533
    .
    Because the evidence concerning these two statutory grounds for
    termination is interrelated, we consolidate our examination of it. See In re
    J.T.G, 
    121 S.W.3d 117
    , 126 (Tex. App.— Fort Worth 2003, no pet.); In re
    B.R., 
    822 S.W.2d 103
    , 106 (Tex. App.—Tyler 1991, writ denied) (recognizing
    the link between a parent’s conduct and a child’s conditions and surroundings).
    i.    Grounds for termination: Latacha
    Latacha argues that the evidence is legally and factually insufficient to
    support the jury’s paragraph (D) and (E) endangerment findings because she
    testified that she knew nothing about Byron’s abusing L.A. Latacha testified
    that she did not learn of L.A.’s 2002 outcry until June 2003. She testified that
    when she did learn of L.A.’s outcry, she asked both L.A. and Byron about the
    alleged abuse; she testified that they both denied that anything had happened.
    On the other hand, Dr. Jamye Coffman testified that L.A. told her that Latacha
    watched as Byron abused her, that she told Latacha that it hurt, and that
    Latacha did nothing in response. We must defer to the jury’s determinations
    of the credibility of the witnesses, the weight to be given the testimony, and
    the resolution of evidentiary conflicts. City of Keller v. Wilson, 
    168 S.W.3d 13
    802, 819, 822 (Tex. 2005). A reasonable jury could have formed the firm
    belief or conviction that Latacha witnessed or knew about the abuse and did
    nothing to stop it. We therefore hold that the evidence is both legally and
    factually sufficient to support the jury’s endangerment findings.
    In addition, Daniel Green, a psychotherapist who provided counseling
    services to Latacha as part of her service plan, testified that she told him that
    she had “relapsed” and used marijuana and cocaine after the Department
    removed her children. Department caseworker Tikishia Lusk-Wilkerson likewise
    testified that Latacha tested positive for cocaine and marijuana a few months
    before trial and that Latacha said that she did not consider marijuana to be a
    drug. A parent’s decision to engage in illegal drug use during the pendency of
    a termination suit, when the parent is at risk of losing a child, supports a finding
    that the parent engaged in conduct that endangered the child’s physical or
    emotional well-being. In re R.H., No. 02-06-00130-CV, 
    2006 WL 3627176
    ,
    at *4 (Tex. App.—Fort Worth Dec. 14, 2006, no pet.) (mem. op.); In re J.J.O.,
    No. 02-03-00267-CV, 
    2004 WL 966317
    , at *4 (Tex. App.—Fort Worth May
    6, 2004, no pet.) (mem. op.). Latacha denied having used cocaine and testified
    that she only told Green that she had tested positive for cocaine, not that she
    had relapsed. Again, the jury was free to believe Green and Lusk-Wilkerson and
    disbelieve Latacha. See City of 
    Keller, 168 S.W.3d at 819
    , 822. We hold that
    14
    the evidence of Latacha’s drug use during the pendency of the termination suit
    is also legally and factually sufficient to support the jury’s endangerment
    findings. We overrule the portion of Latacha’s second issue that pertains to the
    jury’s findings on grounds for termination.
    ii.   Grounds for termination: Byron
    Byron argues that the evidence is legally and factually insufficient to
    support the jury’s endangerment findings because there is no evidence that he
    sexually abused his biological children, S.A.H. and D.S.L.H.       It is beyond
    question that sexual abuse is conduct that endangers a child’s physical or
    emotional well-being.   In re R.W., 
    129 S.W.3d 732
    , 742 (Tex. App.—Fort
    Worth 2004, pet. denied). Evidence of sexual abuse of one child is sufficient
    to support a finding of endangerment with respect to other children. 
    Id. Most of
    the evidence at trial concerned the allegations that Byron sexually abused
    L.A. We therefore hold that the evidence was legally and factually sufficient
    to support the jury’s endangerment findings with regard to Byron, and we
    overrule his third and fourth issues.
    15
    c.    Best interest
    Prompt and permanent placement of the child in a safe environment is
    presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
    (Vernon 2002). There is also a strong presumption that keeping a child with
    a parent is in the child’s best interest. In re R.R., 
    209 S.W.3d 112
    , 116 (Tex.
    2006). Nonexclusive factors that the trier of fact in a termination case may use
    in determining the best interest of the child include:
    (1)   the desires of the child;
    (2)   the emotional and physical needs of the child now and
    in the future;
    (3)   the emotional and physical danger to the child now and
    in the future;
    (4)   the parental abilities of the individuals seeking custody;
    (5)   the programs available to assist these individuals to
    promote the best interest of the child;
    (6)   the plans for the child by these individuals or by the
    agency seeking custody;
    (7)   the stability of the home or proposed placement;
    (8)   the acts or omissions of the parent which may indicate
    that the existing parent-child relationship is not a
    proper one; and
    (9)   any excuse for the acts or omissions of the parent.
    Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976).
    16
    These factors are not exhaustive; some listed factors may be inapplicable
    to some cases; other factors not on the list may also be considered when
    appropriate. 
    C.H., 89 S.W.3d at 27
    . Furthermore, undisputed evidence of just
    one factor may be sufficient in a particular case to support a finding that
    termination is in the best interest of the child. 
    Id. On the
    other hand, the
    presence of scant evidence relevant to each factor will not support such a
    finding. 
    Id. i. Best
    interest: Latacha
    Ruth Ann Patsel, a court-appointed special advocate who attended some
    but not all of the supervised visitations, testified that she saw very little
    interaction between Latacha and the children during the visitations. Latacha
    appeared happy to see the boys but had little to do with the girls.        She
    occasionally brought gifts for the children but usually for just the boys. She
    allowed S.A.H. to bully the other children and take toys away from them.
    Patsel testified that the girls were not strongly bonded to Latacha.
    Caseworker Lusk-Wilkerson testified that Latacha refused to attend non-
    offender sexual abuse classes and was discharged from a CATS drug treatment
    program for noncompliance.
    Jacqueline H.—Byron’s aunt—testified that Latacha is doting, playful, and
    very affectionate towards the children. She said that the children cried for
    17
    Latacha when she was absent. Latacha’s mother testified that Latacha is a
    caring and loving mother who can be protective. Byron’s mother testified that
    the children were bonded to Latacha.
    Latacha testified that she doubted that Byron sexually abused L.A.
    because Latacha’s mother was living with them at the time of the alleged
    abuse; but she also admitted that she, herself, had been sexually assaulted as
    a minor when living in her mother’s home and had ultimately been placed in
    foster care. Green, the psychologist who counseled Latacha, testified that
    Latacha was supportive of Byron and that she said she would stand by him until
    the State proved that he sexually abused L.A. Latacha said that she was no
    longer in a relationship with Byron and would not resume it if Byron were
    released from custody. She denied that the two had exchanged letters while
    Byron was in jail, but she later spoke of writing to him in jail. Latacha testified
    that she allows people with whom she is comfortable to be around her children,
    and she said she was comfortable around Byron.
    Considering the evidence relevant to the Holley factors, we hold that a
    fact-finder could rationally have formed a firm belief or conviction that
    termination of Latacha’s parental rights is in the children’s best interest;
    therefore, the evidence is legally sufficient to support the jury’s best-interest
    findings.   Considering all of the evidence, including the evidence that
    18
    contradicts the jury’s best-interest findings, we hold that it is also factually
    sufficient. We therefore overrule the remainder of Latacha’s second issue.
    ii.   Best interest: Byron 4
    Patsel testified that during supervised visitations, Byron had very little to
    do with the children and once spent three-quarters of a visitation reading a
    magazine.   Lusk-Wilkerson testified that he refused to attend sex offender
    counseling classes. He attended only three parenting classes (due to lack of
    cooperation, not because his incarceration prevented his attendance) and did
    not submit to a psychological evaluation. Like Latacha, he was discharged from
    a CATS drug treatment program for noncompliance.
    Latacha testified that prior to the children’s removal, Byron was the main
    economic provider for the family. But when asked about his relationship with
    the children, she testified, “Really, he semi-played with them sometimes, but
    most of the time he was . . . in his back room messing with” his music records
    and turntables.
    Considering all of the evidence relevant to the Holley factors, including
    the evidence that contradicts the trial court’s best-interest findings, we hold
    that a fact-finder could rationally have formed a firm belief or conviction that
    4
    … Byron challenges only the factual sufficiency of the evidence to
    support the jury’s best-interest findings.
    19
    termination of Byron’s parental rights is in S.A.H.’s and D.S.L.H.’s best interest;
    therefore, the evidence is factually sufficient to support the jury’s best-interest
    findings. We therefore overrule Byron’s fifth issue.
    3.    Denial of Byron’s motion to appear in personal clothing and without
    restraints
    Byron—who was awaiting trial on sexual assault charges stemming from
    L.A.’s outcry—appeared throughout the trial of this case in a prison jumpsuit
    and leg shackles. In his first issue, Byron argues that the trial court abused its
    discretion by denying his motion to appear in personal clothing and without
    restraints.   The Department tacitly concedes that the trial court erred by
    compelling Byron to appear in shackles and prison garb but argues that the error
    was harmless.
    The issue of shackling a party during trial naturally arises more often in
    criminal cases. The United States Supreme Court has admonished that a
    criminal defendant should not be shackled in the sight of the jury except as “a
    last resort.” Illinois v. Allen, 
    397 U.S. 337
    , 344, 
    90 S. Ct. 1057
    , 1061 (1970).
    Our court of criminal appeals has echoed that shackling should be avoided
    “except where there has been a showing of exceptional circumstances or a
    manifest need for such restraint.” Long v. State, 
    823 S.W.2d 259
    , 282 (Tex.
    Crim. App. 1991), cert. denied, 
    505 U.S. 1224
    (1992). A trial judge must set
    20
    forth with specificity the reasons supporting the decision to restrain the
    defendant. Cooks v. State, 
    844 S.W.2d 697
    , 722 (Tex. Crim. App. 1992),
    cert. denied, 
    509 U.S. 927
    (1993).
    Compelling a defendant to appear for trial in prison clothes is similarly
    disfavored. “If a defendant objects to being put to trial while dressed in prison
    clothes, he should not be compelled to stand trial in that attire.” Randle v.
    State, 
    826 S.W.2d 943
    , 944–45 (Tex. Crim. App. 1992).               Compelling a
    defendant to appear in jail clothes during trial bears the indicia of incarceration
    that subvert a defendant’s right to a presumption of innocence. Scott v. State,
    
    80 S.W.3d 306
    , 307 (Tex. App.—Fort Worth 2002, no pet.).
    When a trial court erroneously compels a respondent in a parental-rights
    termination case to appear in shackles, the reviewing court must apply the
    harmless error rule. In re K.R., 
    63 S.W.3d 796
    , 800 (Tex. 2001), cert. denied,
    
    536 U.S. 941
    (2002). “If the Fourteenth Amendment does not prevent the
    application of the ‘harmless error’ rule to shackling in criminal cases, then we
    do not see how it can be held to do so in civil cases, even those involving
    matters as important as the parent-child relationship.” 
    Id. In In
    re K.R., the trial court, without stating its reasons in the record,
    compelled the respondent father—who had been convicted of reckless injury to
    a child that resulted in the death of one of his two children—to remain
    21
    handcuffed throughout the parental-rights termination trial. 
    Id. at 798.
    The
    trial court instructed the jury not to infer anything from the fact that the father
    was handcuffed other than the fact that he had been convicted of an
    unspecified crime requiring incarceration. 
    Id. The supreme
    court applied the
    harmless error rule and concluded that “we must assume, absent any evidence
    to the contrary, that [the jury] could . . . follow the trial court’s instruction and
    draw no improper conclusions from seeing [the father] sitting in handcuffs.
    Nothing in the record even hints that they would have reached a different
    verdict had they not seen [the father] in shackles.” 
    Id. at 800–01.
    In this case, the trial court apparently considered and denied at a pretrial
    hearing Byron’s motion to appear in street clothes and without shackles; there
    is no record of the hearing or the trial court’s ruling. On the first day of trial,
    Byron briefly re-urged his motion to the visiting judge who tried the case. No
    other party offered argument on the motion, and the trial court denied the
    motion without explaining why exceptional circumstances or a manifest need
    justified Byron’s restraint during trial. In the absence of any such explanation,
    and none being apparent from the record, we hold that the trial court erred by
    requiring Byron to appear in prison garb and shackles. See 
    Cooks, 844 S.W.2d at 722
    .
    22
    We must now determine whether the error harmed Byron. See In re 
    K.R., 63 S.W.3d at 800
    . Unlike In re K.R., the trial court in this case did not instruct
    the jury regarding what inferences it could or could not draw from the fact that
    Byron was shackled and wearing a jail jumpsuit.          But during voir dire, his
    counsel made the following explanation to the panel:
    I guess we should talk about the elephant in the room before
    we go any further. My client is wearing a green jumpsuit. . . . My
    client has not been convicted of anything. He’s not in, he’s not in
    the Texas Department of Criminal Justice.             He’s not been
    convicted. He is innocent. He is, however, poor. He cannot make
    bail, so he sits here today in a green jumpsuit. . . . He’s not had a
    criminal day in court, okay? That has not happened in this case.
    There has, however, been an accusation, and ultimately, . . . the
    reason we are here is because of that accusation. They do go hand
    in hand.
    W e have already considered the evidence presented at trial and
    determined that it is legally and factually sufficient to support the jury’s verdict
    with regard to Byron’s parental rights. As in In re K.R., nothing in the record
    suggests that the jury would have arrived at a different verdict had they not
    seen Byron in shackles and jail garb. We therefore hold that the trial court’s
    error in requiring him to do so was harmless, and we overrule his first issue.
    23
    4.    Conclusion
    Having overruled all of Latacha’s and Byron’s issues, we affirm the trial
    court’s termination order.
    PER CURIAM
    PANEL F:    GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
    DELIVERED: May 22, 2008
    24