Jermaine Damon Davis v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00167-CR
JERMAINE DAMON DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 27880
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
A Lamar County jury found Jermaine Damon Davis guilty of possession of marihuana in
an amount of fifty pounds or less, but more than five pounds. 1 After enhancing punishment by a
previous felony conviction, the trial court sentenced Davis to twenty years’ imprisonment, to be
served concurrently with other sentences imposed at the same time. 2 In this appeal, Davis
complains (1) that his constitutional and statutory rights were violated because he was absent when
the jury was called, seated, and instructed by the trial court and (2) that the trial court erred by
placing him in leg restraints during the trial. Because we find that Davis’s first complaint is
without merit and that any error in placing him in leg restraints was harmless, we will affirm the
trial court’s judgment.
I. Davis’s Absence Complaint Is Not Supported by the Record
In his first issue, Davis complains that he was absent when the jury was called, seated, and
instructed by the trial court, in violation of his constitutional and statutory rights. The State argues,
inter alia, that the record shows that Davis was not absent during this period. We agree.
As Davis admits, the record shows that he was present when jury selection began. After
disposing of some preliminary matters, the trial court addressed the absence of a defendant and his
counsel in an unrelated matter, cause number 28256, styled The State of Texas v. Bobby Carl
Lennox. Apparently, the jury in the Lennox case was to be chosen from the same voir dire panel
after Davis’s jury was selected.
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(4).
2
In cases that had been consolidated for trial with this case, Davis was also convicted of murder and unlawful
possession of a firearm. Those convictions have also been appealed to this Court and are addressed in opinions
released on the same date as this opinion.
2
The jury selection in this case then proceeded. Counsel for Lennox was also present for
the voir dire in this case. When Davis began his voir dire, his counsel stated, “As my client
Mr. Davis sits here today he is an innocent man,” indicating Davis’s continued presence during
voir dire. At the conclusion of voir dire, the trial court again noted for the record that Davis was
present. After a brief recess and hearing outside the presence of the jury, the following exchange
took place:
THE COURT: . . . . Now the Court has received the Lamar County jury
panel list for these three matters.
Does the State of Texas have any objection to the list?
[Attorney for the State]: No objection, Your Honor.
THE COURT: [Attorney for Davis], does the Defendant have any objection
to the list?
[Attorney for Davis]: No objection.
THE COURT: All right. The list is received. Now, did we get Mr. Lennox
back? If not we’ll take --
[Attorney for Lennox]: He’s on his way, Judge.
THE COURT: We’ll take it up later. Let’s go ahead and seat this jury.
The trial court then called, seated, and instructed the jury panel selected for this case.
Davis points to this exchange to support his contention that he was not present when the
jury was called, seated, and instructed. However, nothing in this exchange supports his contention.
Rather, it only shows, at best, that Lennox was not present. There is nothing in this exchange or
any other part of the record indicating that Davis was absent. To the contrary, the remainder of
the record supports a conclusion that Davis was present for all phases of the jury selection,
including when the jury panel was called, seated, and instructed. Since Davis has not shown that
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he was absent when the jury panel was called, seated, and instructed, we find that this complaint
is without merit. We overrule Davis’s first issue.
II. Any Error in the Use of Leg Restraints Did Not Affect Davis’s Substantial Rights
Davis’s second issue asserts that the trial court reversibly erred when it ordered him to wear
leg restraints during his trial. Shackling an accused at trial is permitted “when, in the trial judge’s
discretion, it is necessary for a particular defendant in a particular proceeding.” Bell v. State, 415
S.W.3d 278, 281 (Tex. Crim. App. 2013) (citing Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim.
App. 1992), superseded on other grounds by rule, TEX. R. APP. P. 44.2, as stated in Bell, 415
S.W.3d at 282). Even so, the record must reflect the trial court’s reasons and grounds that justify
the restraint. Id. Additionally, because shackling error may rise to constitutional error when the
record shows a reasonable probability that the jury was aware of the restraints, the trial court should
make every effort to prevent the jury from seeing the accused in restraints. Id. at 281, 283. But
even if the trial court errs in ordering that the defendant wear restraints, no harm will be found
absent evidence that a juror saw or was aware of the restraints or that the restraints interfered with
the defendant’s ability to communicate with his counsel. See id. at 283–84; Canalas v. State, 98
S.W.3d 690, 697–98 (Tex. Crim. App. 2003); Grant v. State, 255 S.W.3d 642, 649 (Tex. App.—
Beaumont 2007, no pet.).
We review a trial court’s order that the defendant be restrained during trial for an abuse of
discretion. See Ziolkowski v. State, 223 S.W.3d 640, 643 (Tex. App.—Texarkana 2007, pet. ref’d).
A trial court abuses its discretion when it does not make specific findings articulating its reasons
for the restraint. Id. When, as here, any trial court error does not rise to constitutional error, we
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disregard it unless it affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Bell, 415
S.W.3d at 284.
In this case, the trial court did not articulate, and the record does not reflect, the reasons for
ordering the leg restraints. Consequently, we find that the trial court erred in ordering Davis to
wear leg restraints during his trial. See Bell, 415 S.W.3d at 283.
Nevertheless, the trial court found that the type of leg restraints used would not be visible
to the jury. On appeal, Davis concedes that there was no evidence that the leg restraints were
visible to the jury. Even so, Davis argues that there was evidence that the restraints impeded his
ability to confer with his counsel and points to the exchange at the end of voir dire previously set
forth. As in his first issue, Davis contends that this shows he was not present when the jury panel
was called, seated, and instructed. We have previously noted that the record does not support this
contention. Davis does not cite, and we have not found, any other evidence in the record that
would support his contention that the leg restraints interfered with his ability to confer with his
counsel. On this record, we find that the trial court’s error did not affect Davis’s substantial rights.
See id. at 284. We overrule this issue.
III. Disposition
For the reasons stated, we affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: April 3, 2020
Date Decided: April 6, 2020
Do Not Publish
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