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Ronnie Jraun Otems, Jr. v. State ( 2012 )


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  •                                COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00488-CR
    Ronnie Jraun Otems, Jr.                   §   From the 89th District Court
    §   of Wichita County (51,235-C)
    v.                                        §   December 6, 2012
    §   Per Curiam
    The State of Texas                        §   (nfp)
    JUDGMENT
    This court has considered the record on appeal in this case and holds that
    there was no error in the trial court’s judgment. It is ordered that the judgment of
    the trial court is affirmed.
    SECOND DISTRICT COURT OF APPEALS
    PER CURIAM
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00488-CR
    RONNIE JRAUN OTEMS, JR.                                              APPELLANT
    V.
    THE STATE OF TEXAS                                                        STATE
    ----------
    FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
    ----------
    MEMORANDUM OPINION1
    ----------
    I. Introduction
    In three points, Appellant Ronnie Jraun Otems, Jr. appeals his four
    convictions, complaining of the trial court’s actions before and during his trial.
    We affirm.
    II. Factual and Procedural Background
    In his appellate brief, Otems sets out the following background:
    1
    See Tex. R. App. P. 47.4.
    2
    The facts surrounding Appellant’s charges here are the stuff of a
    Hollywood action film and are largely uncontroverted at trial. On
    September 23, 2009[,] Mr. Otems was being held in the Wichita
    County jail awaiting trial on an unrelated charge. He was placed in a
    single cell at the annex facility, a former warehouse retrofitted to
    serve as a jail. After a series of altercations with staff which he
    described as abuse, Mr. Otems used his impressive strength to pry
    loose a metal table bolted to the cinderblock wall. He then used the
    table as a tool to beat on and pry back a steel plate covering the
    internals of the cell’s shower. Removing the plate exposed a small
    hole allowing access to a pipe chase behind the cell. Two pieces of
    rebar blocked Mr. Otem[s]’s egress through the hole, but he was
    able to bend them out of place enough to allow access to the pipe
    chase. Appellant entered the pipe chase and re-entered his cell
    multiple times, one time standing in the dark directly next to a
    detention officer investigating noise in the pipe chase. Back in his
    cell, Mr. Otems removed several long screws that held the shower
    plate to the wall and sharpened them to a point. He bound the
    screws to his hands with strips of his bed sheet and exited a final
    time into the pipe chase. He climbed the pipes and was able to
    position himself on top of the cells, with room to walk below the tall
    ceilings of the jail. He disabled a security camera and climbed hand
    over hand across a hallway on an electrical conduit and headed for
    the area he believed controlled the electrical power for the facility.
    Mr. Otems had previously tripped the breakers in his cell by jamming
    a paperclip in the electrical socket and watched which direction the
    guard went to fix the problem. When Mr. Otems arrived at an
    electrical box he began to flip switches and tear out wires causing
    the lights to go out and the electric doors to lock.
    According to the record, Otems then attacked Officer Samuel Hankins,
    stabbing him four times.    When Officer Michael Bonnin went to help, Otems
    charged at him and punched him in the face three times. During this struggle,
    Otems also lunged at Officer Dustin Lowery and swung at him several times. At
    trial, Officer Bonnin testified that he did not feel any pain when Otems struck him,
    and based on this testimony, Otems moved for a directed verdict on the
    3
    aggravated-assault-on-a-public-servant charge pertaining to Officer Bonnin,
    designated as Count II in the indictment. The trial court denied the motion.
    After a pretrial hearing on shackling, Otems was shackled, handcuffed,
    and attached to a large metal plate on the floor throughout the trial. However, all
    of this was obscured from the jury’s view by a black curtain. And after Otems
    complained about having supervised visits with his attorney, he was allowed
    private meetings in the courtroom with his attorney during breaks.
    The jury found Otems guilty in Count I for aggravated assault on a public
    servant (Officer Hankins), in Count II for the lesser included offense of attempted
    aggravated assault on a public servant (Officer Bonnin), in Count IV for
    possession of a deadly weapon in a penal institution, and in Count V for escape.
    The jury found Otems not guilty in Count III, attempted aggravated assault on a
    public servant (Officer Lowery).     The jury assessed the following years of
    confinement as Otems’s punishment: seventy-five for Count I, sixty for Count II,
    thirty-five for Count IV, and thirty-five for Count V, and the trial court entered
    judgment on the verdict, ordering the sentences to run concurrently with each
    other but consecutive to the sentence for which Otems was in prison at the time
    he committed these offenses. This appeal followed.
    III. Restraints
    In his first point, Otems complains that the trial court abused its discretion
    by allowing him to be shackled during trial. See Jacobs v. State, 
    787 S.W.2d 397
    , 407 (Tex. Crim. App.) (stating standard of review), cert. denied, 
    498 U.S. 4
    882 (1990); see also Long v. State, 
    823 S.W.2d 259
    , 282 (Tex. Crim. App. 1991),
    cert. denied, 
    505 U.S. 1224
    (1992).
    As a general rule, a jury should not be allowed to see a defendant in
    shackles during the guilt-innocence phase of trial because it affects the
    defendant’s presumption of innocence. See Marquez v. State, 
    725 S.W.2d 217
    ,
    227 (Tex. Crim. App.), cert. denied, 
    484 U.S. 872
    (1987), overruled on other
    grounds by Moody v. State, 
    827 S.W.2d 875
    , 892 & n.7 (Tex. Crim. App. 1992).
    Only in rare circumstances is shackling called for, and the trial court must set
    forth with specificity the reasons for it in the record. 
    Long, 823 S.W.2d at 282
    ;
    see also Davis v. State, 
    195 S.W.3d 311
    , 315–16 (Tex. App.–Houston [14th
    Dist.] 2006, no pet.) (stating that there must be a showing of manifest need or
    exceptional circumstances, such as when a defendant poses a threat to himself
    or others, assessed on a case-by-case basis).
    In Long, the court of criminal appeals stated the following with regard to
    the lack of specific findings of fact justifying the use of shackles:
    In the present cause, the trial judge did not make specific
    findings of fact justifying the use of shackles, but rather stated in the
    record general concerns regarding security because appellant was
    charged with capital murder. Indeed, the facts of this case are
    brutally violent, but there is no other evidence in the record of
    violence or threatened violence by appellant during this trial. The
    fact that a person is charged with the most serious of felonies cannot
    override that person’s constitutional presumption of innocence.
    Moreover, the trial judge noted that appellant had been well-
    behaved during pre-trial proceedings. While the trial judge’s concern
    with security during trial is certainly admirable, we find that these
    reasons are not sufficiently specific to support the judge’s decision to
    have appellant shackled from the commencement of his trial. Thus,
    5
    on the basis of this record, we hold the trial judge abused his
    discretion in shackling appellant prior to 
    trial. 823 S.W.2d at 283
    (footnote omitted). Despite concluding that the trial court
    abused its discretion, however, the court held that the appellant was not
    prejudiced or harmed because he had ―fail[ed] to direct our attention to any place
    in the record showing that the jury actually saw the shackles,‖ and the trial court
    had taken measures to prevent the jury’s exposure to the shackles. 
    Id. As in
    Long, the trial court here did not make findings regarding its
    shackling decision. See 
    id. In contrast
    to Long, however, in addition to Otems’s
    instant charges, which were all subject to enhancement with Otems’s prior
    convictions for aggravated robbery and assault on a public servant, at the pretrial
    hearing on shackling, Deputy Chief Derek Meador of the Wichita County Sheriff’s
    Office testified that while in jail, Otems had been involved in several incidents
    requiring the use of force against him, had an above-average number of
    disciplinary cases, had created weapons while in jail, and, on multiple occasions,
    had said that he intended to stab an officer. Deputy Meador described Otems as
    unpredictable and said that he believed Otems would potentially serve as a
    threat to himself or others during the course of the trial. Deputy Meador stated
    that on the night before the shackling hearing, Otems had told officers that he did
    not understand why he had been placed in a smock to prevent self harm
    ―because he wasn’t suicidal, he was homicidal.‖ [Emphasis added.]
    6
    Starla Jones, the assistant district attorney, testified that for at least one of
    Otems’s pretrial hearings, Otems had been brought in strapped down to a metal
    restraint chair, the only inmate that she could recall ever having been brought in
    that way in the eleven years she had been a prosecutor. And Royce Smithey,
    the chief investigator for the State of Texas’s special prosecution unit, testified
    that Otems had several cases pending against him for assaults on prison guards,
    and that, based on Otems’s past actions and the special precautions taken with
    Otems in the controlled environment of a jail, ―I think you put in a situation where
    [Otems] is not under the constant control of some type of restraint, I think you’re
    asking for possible problems, major problems, dangerous problems.‖
    Notwithstanding that, even without the express fact findings, the foregoing
    showed a manifest need to have Otems shackled during trial, it is also apparent
    from the record that Otems was not harmed: the trial court had a black curtain
    placed around the table to prevent the jury from seeing Otems’s hands or feet.
    See 
    id. at 282.
    Otems directs us to no place in the record showing that the jury
    saw him in restraints, and absent evidence that the jury actually saw the
    shackles, we cannot conclude that he was harmed. See 
    id. at 283;
    see also
    Canales v. State, 
    98 S.W.3d 690
    , 697–98 (Tex. Crim. App.) (―Nothing in the
    record indicates that the jury ever saw or heard or was otherwise aware that
    appellant was wearing shackles.‖), cert. denied, 
    540 U.S. 1051
    (2003).
    Therefore, we overrule Otems’s first point.
    7
    IV. Communication
    In his second point, Otems complains that he was unable to communicate
    with his attorney before and during trial, specifically with regard to the presence
    of guards during his jail meetings with his attorney. The following exchange
    occurred between the court and counsel for Otems before trial:
    [OTEMS’S COUNSEL:] Yeah, I will just make a statement to the
    Court real quick.          Judge, we’ve had some issues with
    communication with Mr. Otems. As Captain Johns noted, I’ve been
    available—I’ve been able to come to the Court—oh, I’m sorry—come
    to the jail and visit with Mr. Otems at any time. They’ve been quite
    good with that.
    However, while we’ve been in the jail there’s been a
    requirement that two officers be in the hallway. Sometimes they
    may be next to me. Sometimes they’ve been farther away and while
    I appreciate that for, you know, for myself, you know, the—the
    nature of these charges are assaults against members of the
    Sheriff’s Office, which makes it somewhat difficult to discuss both the
    trial strategy and just—just free and open communication with Mr.
    Otems at this time.
    We are prepared to go forward, but I’m not sure what—what
    possible information may have been stifled from Mr. Otems by the
    Sixth Amendment violation to his right to an attorney during this time.
    Thank you.
    [PROSECUTOR:] Your Honor, I haven’t heard of this. I don’t know
    exactly, you know, what the situation is up there. I can say that I
    know myself—neither myself nor Mr. Young or Ms. Jones have had
    any communication with any detention officers and we certainly have
    not received any information. So with regard to that, that’s—that’s
    all I know.
    THE COURT: What relief is sought?
    [OTEMS’S COUNSEL]: I haven’t really asked for relief at this time
    other than the opportunity in the future to visit with Mr. Otems
    8
    privately and to lay the objection before the Court for the previous
    incidents.
    [Emphasis added.]
    Following the foregoing exchange between the trial court and Otems’s
    counsel, further discussion ensued:
    [PROSECUTOR]: Depending on what the Court wants in this case,
    you know, [Otems’s attorneys], I mean, we have no objection if—if
    they would want unsecured meetings with the Defendant either in
    the jury room or the lawyer’s lounge. I don’t know if the Sheriff’s
    Department has a problem with that, I don’t know if the Court does,
    but we would have no objection to that or—or meetings inside of a
    jail cell with—with no guards.
    [OTEMS’S COUNSEL]: Additionally, I think there may be an issue
    with—that [Otems’s other counsel] spoke to you earlier about today
    being able to confer with [Otems] going forward through the trial. It
    doesn’t appear that he’s able to move from the steel plate on the
    floor, so that may be something to consider about how we want to
    handle that as well.
    THE COURT: Well, the steel plate on the floor is going to remain.
    Now, as far as conferring, we will try to afford you every opportunity.
    We will be taking breaks during the jury selection. They have an
    opportunity then and when nobody else will be in the courtroom, all
    right, subject to I guess the—maybe the deputies being at the back, I
    don’t know, because I’m not in the security business. I’m just in
    charge of it, supposedly, under the law.
    But as far as the actual handling of the Defendant, I’ve got to
    leave that to the discretion of the Sheriff and balance it out with the
    constitutional rights, obviously of Mr. Otems. So if possible, and if—
    if it’s acceptable with the Sheriff’s Office, then we could have them
    stand at the back of the courtroom or perhaps you and your—well,
    that’s not going to work because you can’t move the plate—to ask
    everybody else to leave and you would have an opportunity to
    confer.
    [OTEMS’S COUNSEL]: Thank you, Your Honor. I appreciate that.
    9
    THE COURT: And during the course of the trial, we will be taking
    breaks and we’ll see to it that everybody leaves the courtroom and
    you’ll have the opportunity to confer then. It’s not the Court’s
    intentions to prevent any conferring. It’s just what we’re going to
    have to tolerate to get there, okay?
    [OTEMS’S COUNSEL]: Thank you, Judge.
    To preserve a complaint for our review, a party must have presented to the
    trial court a timely request, objection, or motion that states the specific grounds
    for the desired ruling if they are not apparent from the context of the request,
    objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 
    319 S.W.3d 687
    ,
    691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the
    request, objection, or motion, either expressly or implicitly, or the complaining
    party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
    33.1(a)(2); Mendez v. State, 
    138 S.W.3d 334
    , 341 (Tex. Crim. App. 2004). A
    reviewing court should not address the merits of an issue that has not been
    preserved for appeal. Wilson v. State, 
    311 S.W.3d 452
    , 473 (Tex. Crim. App.
    2010) (op. on reh’g).
    Assuming the discussions above can be construed as an objection by
    Otems’s counsel, though apparently for which no relief was sought, Otems’s
    counsel indicated at the conclusion of the discussions that he was satisfied with
    the State’s proposals and the trial court’s decision; he made no further objection.
    Under these circumstances, because no further error, if any, was preserved for
    our review, we overrule Otems’s second point.
    10
    V. Directed Verdict
    In his third point, Otems complains that the trial court erred by overruling
    his motion for directed verdict on Count II, aggravated assault on a public
    servant, because the State failed to prove a bodily injury. However, though the
    trial court denied Otems’s request, the jury found Otems not guilty of this count
    anyway before finding him guilty of the lesser included offense, which did not
    require bodily injury, rendering this point moot. See Tex. Code Crim. Proc. Ann.
    art. 37.08 (West 2006) (―In a prosecution for an offense with lesser included
    offenses, the jury may find the defendant not guilty of the greater offense, but
    guilty of any lesser included offense.‖); see also Douthit v. State, No. 06-02-
    00007-CR, 
    2003 WL 1922490
    , at *1 (Tex. App.—Texarkana Apr. 24, 2003, no
    pet.) (not designated for publication). We overrule Otems’s third point.
    VI. Conclusion
    Having overruled Otems’s three points, we affirm the trial court’s judgment.
    PER CURIAM
    PANEL: MCCOY, WALKER, and GABRIEL, JJ.
    WALKER, J., concurs without opinion.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: December 6, 2012
    11