Neal Graves v. State

Affirmed and Memorandum Opinion filed April 12, 2007

Affirmed and Memorandum Opinion filed April 12, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00106-CR  

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NEAL GRAVES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court  

Harris County, Texas

Trial Court Cause No. 1030831  

M E M O R A N D U M   O P I N I O N

Appellant Neal Graves was found guilty by a jury of aggravated robbery.  At appellant=s election, and after he pleaded true to two enhancements, the trial court assessed punishment at thirty-five years= confinement. In his sole issue on appeal, appellant contends the trial court erred by not providing civilian clothing for him to wear at his trial.  We affirm.

Background

Even though appellant does not challenge the legal or factual sufficiency of the evidence, we briefly summarize the basis for his conviction.  On June 16, 2005, appellant entered Randolph Office Furniture in Harris County, Texas, and demanded money from the complainant, Glen Schmidt, while brandishing a screwdriver.  Appellant wore Adirty@ khaki or tan pants and a beige or brown knit shirt, and he had a glove on his left hand.  Appellant took Schmidt into the office of the manager, Shelby Chachere, and again demanded money.  Between them, Schmidt and Chachere had only $2.70, so to appease appellant, Chachere offered him a sander that was on her desk.  After a struggle with Schmidt in which appellant hit Schmidt with the sander and threatened him with the screwdriver, appellant fled as other employees were summoned over the store=s intercom. A passing police officer was flagged down, and he located and arrested appellant.  At the time of his arrest, appellant was wearing one glove and carrying the screwdriver and sander. 

Appellant=s Issue on Appeal

Appellant contends the trial court erred in not providing civilian clothing for him to wear during his trial, and so his appearance in jail clothes at trial destroyed his presumption of innocence.  Appellant also complains that, on the second day of trial, he had no choice but to wear the clothes in which he was arrested, which unfairly bolstered the State=s witnesses= identification of him.^[1]    

In support of these claims, appellant primarily relies on Randle v. State, 826 S.W.2d 943 (Tex. Crim. App. 1992).  Randle holds that, if a defendant timely objects to being put to trial while dressed in prison clothes, he should not be compelled to stand trial in that attire, because such a compulsion would violate the defendant=s right to a fair trial and his right to be presumed innocent.  Id. at 944B45.  Appellant contends Randle and Texas Code of Criminal Procedure article 2.03(b) imposed a duty on the trial court to offer appellant civilian clothing to wear, because he did not want to wear jail clothes to trial and the only other clothes he had were the clothes in which he was arrested, which were dirty.  See Randle, 826 S.W.2d at 946 (AThus if an accused asserts his right to not be placed before the jury while wearing clothing which bears the indicia of incarceration, thus invading his right to a presumption of innocence, it is the duty of the trial court, the accused=s attorney, the state=s attorney, and the peace officers in control of the accused to offer the accused an opportunity to wear civilian clothes.@); Tex. Code Crim. Proc. art. 2.03(b) (AIt is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.@). 

However, as we explain in more detail below, the record contradicts appellant=s claim that he was compelled to wear jail clothes or that the trial court failed in any duty to supply him civilian clothing.  Appellant never objected to wearing jail clothes, and his later appearance in his arrest clothes was made part of his trial strategy to cast doubt on the witnesses= identification of him.  Randle makes clear that a defendant must timely object to being made to wear jail clothes or he waives the right to complain.  Randle, 826 S.W.2d at 945.  Therefore, appellant has waived any right to complain about his appearance in jail clothes or his own clothes.

The issue of appellant=s clothing first appears in the record on January 17, 2006, as appellant was awaiting trial.  At that time, the trial judge, not appellant, pointed out for the record that he was in a jail uniform, and asked appellant if he had some clothes to put on.  Instead of answering the trial judge, appellant instead complained about his lawyer.  Appellant later admitted that, when he was sent back to change clothes earlier, he had refused to do so.  The trial judge then admonished appellant that he should put on some street clothes and again sent him to change clothes, but left the choice to him.

The trial did not commence until two days later, and at that time, the trial judge again raised the issue of appellant wearing his jail clothes.  Appellant again refused to put on his street clothes.  The trial judge asked appellant, AAnd are you choosing not to put those on?@  Appellant responded by saying that his arrest clothes were Adirty@ and Ait don=t matter what [he wears].@  The trial judge explained to appellant that if he refused to put on his street clothes, he would go to trial in his jail uniform.  Appellant expressed other concerns, but did not address his attire any further.

Thus, the trial court twice attempted to reason with appellant regarding his choice to wear jail clothes, and twice appellant refused opportunities to change out of his jail clothes.  The trial judge explained the options to appellant and he chose to remain in jail clothes.  Appellant also had two days to obtain different clothes before the trial commenced.  No objection or complaint by either appellant or his attorney appears on the record.  Therefore, appellant waived his right to complain about being tried in jail clothes.  See id. at 945.

Likewise, when appellant appeared in his street clothes for the second day of trial, he did not object to appearing in the clothes in which he was arrested.  As noted above, at most, he complained that his clothes were dirty.  This complaint does not suffice to preserve the complaint appellant raises on appeal.  See Tex. R. App. P. 33.1(a).

Moreover, appellant testified in his defense and at one point his counsel asked him to stand up to display what he was wearing for the jury.  Appellant informed the jury that he was wearing the same clothes he was arrested in and that he had no access to them since the date of his arrest.  During closing argument, appellant=s counsel specifically mentioned appellant=s arrest clothes, arguing that the clothes did not match the descriptions given by Schmidt or Chachere, and that appellant=s pants were not Akhaki@ or Adirty.@  It has long been the rule in criminal cases that an error in admitting evidence may be waived if the aggrieved party himself introduces evidence to the same effect.  See Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992).

Appellant cannot complain for the first time on appeal that his constitutional rights were violated by his choice to dress in jail clothes and his arrest clothes when he failed to object and later strategically used his arrest clothes during trial.  See Randle, 826 S.W.2d at 945; see also Wickware v. State, 486 S.W.2d 801, 804B05 (Tex. Crim. App. 1972) (affirming trial court=s judgment when appellant failed to object to being tried in jail clothes and noting that he could not Aremain silent and then claim error for the first time on appeal@); Barber v. State, 477 S.W.2d 868, 870 (Tex. Crim. App. 1972) (affirming trial court=s judgment when the record failed to reflect that appellant was in a jail uniform during voir dire and no objection was made by him or his counsel to being in jail clothes).

Conclusion

The trial court=s judgment is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]      Although appellant raises this claim in his statement of the issue, he fails to provide any argument or authorities to support it.