Paul Gennusa v. the State of Texas

Opinion issued August 24, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00519-CR
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PAUL GENNUSA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1690746
MEMORANDUM OPINION
A jury found appellant, Paul Gennusa, guilty of burglary of a habitation,1
enhanced with a prior conviction for assault on a family member as a repeat
offender. The jury further assessed Gennusa’s punishment at 35 years’
1
See TEX. PENAL CODE § 30.02.
confinement. In three issues on appeal, Gennusa’s argues that (1) the trial court
abused its discretion by having Gennusa’s legs shackled during trial; (2) the trial
court abused its discretion by allowing improper jury argument from the State; and
(3) the judgment of conviction should be reformed to reflect that he was convicted
of burglary of a habitation with intent to commit aggravated assault. Because we
conclude that Gennusa was not harmed by the trial court’s error in leaving him
shackled during trial, nor was he harmed by the State’s jury argument, we affirm
the judgment but modify it to reflect that Gennusa was convicted of burglary of
habitation with intent to commit aggravated assault.
Background
Christian Marrder, the neighbor of the complainants Howard and Rhonda
Rogers, was driving home when he observed a man on a motorcycle behaving
erratically. The man on the motorcycle drove into Marrder’s neighborhood and
stopped at the Rogers’ house. Marrder watched the man, who he later identified as
Gennusa, force his way past Rhonda Rogers. When he heard Rhonda scream,
Marrder called 9-1-1. Less than a minute later, Marrder saw Howard Rogers
wrestling with Gennusa in the Rogers’ front yard. Howard Rogers was bleeding
profusely. Gennusa fled on foot.
Rhonda Rogers testified that she and her husband were preparing to leave
for dinner, and her husband had just stepped out of the shower, when she heard a
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motorcycle and her husband saw someone approaching the door. Rhonda identified
Gennusa as the man who came to the door, and she testified that he asked whether
she had seen his dog. She cracked the door to talk to him, and he insisted that she
had stolen his dog. She told him she had not seen his dog and tried to close the
door. Gennusa pulled a knife out of his pocket and forced his way into her house.
She shouted to her husband to get his gun, warning him that Gennusa had a knife.
She saw Gennusa charge up the stairs toward her husband, and she ran out the back
door to get help.
Howard Rogers testified that he heard Rhonda scream and then saw Gennusa
rushing up the stairs toward him. He fought with Gennusa inside the house.
Gennusa stabbed Howard several times, but Howard was eventually able to chase
Gennusa from the house. As he left the house, Gennusa dropped the knife, and
Howard picked it up. Gennusa tried to get on his motorcycle to ride away, but
Howard used the knife to puncture the tires. Gennusa fled on foot. He was arrested
outside a nearby dance studio.
Howard sustained multiple injuries, including gashes on his head, neck, and
arm. He also had stab wounds to his stomach. He spent more than a week in the
hospital recovering from the injuries he sustained. Howard and Rhonda both
testified during the punishment phase of the trial about the impact the crime had on
them. They moved to a new house in a “safer” neighborhood but continued to be
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fearful about opening the door to people. Howard continued to have numbness and
other physical effects from the assault.
The State also presented evidence from Brigette Roulaine, whose niece was
taking a class at the nearby dance studio. While Roulaine was waiting, she saw a
man covered in blood come around the corner and attempt to enter the dance
studio. Roulaine called 9-1-1. The responding officer, A. Villareal, arrived and
observed Gennusa behaving erratically. He detained Gennusa, who was eventually
charged with burglary of a habitation with the intent to commit aggravated assault.
The jury found him guilty of the offense of burglary of a habitation with the
intent to commit aggravated assault, as instructed by the jury charge. Gennusa also
chose to have the jury assess his punishment, and the jury found that he should be
confined for 35 years. Although the indictment, jury charge, and evidence at trial
indicated that Genussa was charged with and convicted of the offense of burglary
of a habitation with the intent to commit aggravated assault, the trial court’s
judgment of conviction reflected that Gennusa was convicted of burglary of a
habitation with the intent to commit theft. This appeal followed.
Shackling
In his first issue, Gennusa argues that the trial court reversibly erred in
denying his counsel’s request to remove his leg shackle prior to the trial.
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A. Relevant Facts
During voir dire, while both sides were making their strikes, defense counsel
became aware that Gennusa was shackled, telling the trial court, “Judge, I was not
aware that my client was shackled. So I told him to move seats, and it was only
once he moved that I realized he was shackled. I’m not sure why, and I’m sure that
that front row saw.” Defense counsel went on to explain, “I looked down at the
table; and the way his feet were, I didn’t see any chains. And, so, I said, oh, let’s us
move and it was only when I came around that I saw it but they did not move him.
That’s on me. I just was not aware that he was shackled.”
The trial court questioned why Gennusa was shackled, observing that it was
generally not necessary or proper to have a defendant shackled in the courtroom
for a trial. The deputy in the courtroom stated simply that Gennusa was “in
custody,” and he stated that Gennusa “was blocked off from both angles so the
jurors couldn’t see him; and I made it known to the folks that, you know, he’s not
going to be moved in view of the panel or the jury should it be selected.” The trial
court and defense counsel agreed that the restraints on Gennusa’s legs were not
visible unless Gennusa moved, but defense counsel nevertheless objected to
Gennusa’s being shackled absent the articulation of some particular justification
for restraining him.
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The trial court proceeded to question the venire panel. Several members of
the venire saw the restraints, but only one of those—Juror 12—was eventually
seated on the jury. When the trial court asked Juror 12 whether he had observed
anything unusual when Gennusa stood up, Juror 12 stated that he saw Gennusa’s
leg restraints. Defense counsel asked, “[I]f you were chosen on this jury, [would
you use] that information [i.e., the fact that Gennusa was wearing leg irons] in
deciding guilt/innocence in this case?” Juror 12 answered, “No.”
Two other members of the venire panel—Jurors 2 and 8—saw the shackles
and indicated that it would impact their consideration of Gennusa’s guilt or
innocence, and therefore should be struck. The trial court pointed out, however,
that those jurors had already been struck with peremptory strikes and stated, “All
right. Now, that issue I think is moot because the way that you guys exercised your
strikes, they’re off. They’re not on.” Defense counsel consulted with Gennusa, then
informed the trial court that, because Jurors 2 and 8 had previously been struck,
Gennusa was “prepared to go forward with the jury that we have.”
When trial commenced, before the jury was seated, defense counsel again
moved that Gennusa not be shackled and stating, “[I]f they can articulate, Judge,
that my client has been violent or untrustworthy in the jail, I certainly would want
to hear that but I’ve not been informed of anything like that and I think just having
a blanket policy that we’re gonna shackle people who are unfortunate enough to
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not have money to make a bond is wrong.” The trial court questioned the deputies
regarding why Gennusa was shackled, and the deputies stated that it was simply
their policy to shackle people who were in custody.
The trial court clarified: “I want to make sure that the record is clear that he
was seated in a position where the jury could not see that he was shackled.” The
trial court denied the motion to remove the shackles, and the record reflects that the
trial court and deputies intended that Gennusa would be positioned so that the
restraints would not be visible to the jury. If he needed to move, the trial court
would “take a break” so that the jury would not see the shackles.
B. Standard of Review and Relevant Law
The United States Constitution forbids the routine use of visible shackles on
defendants during trial. Deck v. Missouri, 544 U.S. 622, 624, 626–29 (2005); Ex
parte Chavez, 560 S.W.3d 191, 201 (Tex. Crim. App. 2018); Bell v. State, 415
S.W.3d 278, 281 (Tex. Crim. App. 2013). When the jury sees the defendant in
shackles, his constitutional presumption of innocence is undermined. Bell, 415
S.W.3d at 281–82. Thus, the trial court should make all efforts to prevent a jury
from seeing a defendant in shackles unless there has been a showing that there are
extreme or exceptional circumstances requiring a need for such restraints. Id.“Even when shackles are not visible to the jury, however, shackling a
defendant during trial is non-constitutional error in violation of the common law
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unless it is necessary for a particular defendant in a particular proceeding.” Chavez,
560 S.W.3d at 202. For shackling to be justified, “the record must manifest the trial
judge’s reasons for restraining a defendant,” and a trial judge errs in ordering
shackles if “the record fails to detail the grounds for restraint.” Id. (quoting Bell,
415 S.W.3d at 281). Further, those grounds must articulate why shackling is
“necessary for a particular defendant in a particular proceeding.” Bell, 415 S.W.3d
at 281, 283 (holding that trial court erred when it made no particularized finding
articulating reason for shackling defendant, instead expressing “a generalized
concern for courtroom security”).
We review the trial court’s ruling for abuse of discretion. See Bell, 415
S.W.3d at 281; Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). If we
conclude that the use of shackles constituted error, then we must determine
whether it was harmful. Bell, 415 S.W.3d at 281–83 (holding that visible shackling
without justification is constitutional error, but improper use of non-visible
shackles is non-constitutional error to be considered under Texas Rule of Appellate
Procedure 44.2(b)); see TEX. R. APP. P. 44.2 (setting out standard for both
constitutional and non-constitutional harm analysis); see also Chavez, 560 S.W.3d
at 201 (“Even when shackles are not visible to the jury, however, shackling a
defendant during trial is non-constitutional error in violation of the common law
unless it is necessary for a particular defendant in a particular proceeding.”).
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C. Analysis
Gennusa moved to have his leg shackles removed prior to the start of trial,
and the trial court denied the motion without making any particularized findings
regarding why it was necessary to restrain Gennusa. The only reasons set forth in
the record were a general policy of leaving restraints on people who were “in
custody.” This is insufficient justification for shackling Gennusa during the guilt-
innocence phase of trial, and thus we conclude that the trial court abused its
discretion in denying Gennusa’s motion remove the shackles. See Bell, 415 S.W.3d
at 281, 283.
“Whether this error is of constitutional dimension in that it deprived
[Gennusa] of his presumption of innocence turns on an additional inquiry: whether
the record shows a reasonable probability that the jury was aware of [his]
shackles.” Id. at 283. “Shackles are considered visible for constitutional purposes if
‘the record reflects a reasonable probability that the jury was aware of the
defendant’s shackles.’” Chavez, 560 S.W.3d at 201 (quoting Bell, 415 S.W.3d at
283). Here, the trial court stated on the record that the shackles would not be
visible to the jurors because of how Gennusa was positioned in the courtroom. The
record also reflected that the trial court intended to take measures to ensure that the
jury did not see the shackles if Gennusa needed to move. After these statements
were made on the record, defense counsel never raised the issue of shackling again
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or expressed any concern that the jurors had an opportunity to see the shackles. We
conclude that the record reflects no reasonable probability that the jury was aware
of Gennusa’s shackles. See id.Gennusa argues that Juror 12 was aware of the shackles because he saw
them during voir dire. We observe, however, that after Juror 12 saw the leg
restraints, he indicated that he would not use that information in deciding
Gennusa’s guilt or innocence, and Gennusa affirmatively approved Juror 12’s
seating on the jury. There is no indication that Juror 12 had any further chance to
observe Gennusa’s restraints or that he was aware whether they remained in place
or not. The fact that Juror 12 saw the restraints during voir dire—a concern which
Gennusa effectively waived by agreeing to have Juror 12 seated on the jury—does
not establish a reasonable probability that Juror 12 or any other member of the jury
was aware that the shackles were still in place during the trial. Accordingly, we
conclude that we must review this error for non-constitutional harm. See id.Under Rule 44.2(b), any non-constitutional “error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.” TEX. R. APP.
P. 44.2(b). “A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” Schmutz v. State,
440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In assessing the likelihood that the
jury’s decision was adversely affected by the error, important factors to consider
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include the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case. Id. The analysis may include whether the State emphasized the error and
whether overwhelming evidence of guilt was present. Id.The record does not show that the jury saw or was otherwise aware of
Gennusa’s shackles during the guilt-innocence phase of trial. There is no indication
that Gennusa’s shackles hampered his ability to participate in the trial or to
communicate with his counsel. Furthermore, significant evidence supports the
finding of guilt. Marrder, Rhonda, and Howard all identified Gennusa in court as
the man who forced his way into the Rogers’ home and assaulted Howard.
Roulaine and Officer Villareal likewise testified about finding Gennusa covered in
blood at the nearby dance studio immediately following the burglary and assault.
Thus, considering the character of the shackling error in connection with the strong
evidence of Gennusa’s guilt, we conclude that the error did not affect any
substantial right. See TEX. R. APP. P. 44.2(b); Schmutz, 440 S.W.3d at 39.
We overrule Gennusa’s first issue.
Jury Argument
In his second issue, Gennusa argues that the trial court abused its discretion
in allowing the State to make an improper jury argument.
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A. Relevant Facts
During the punishment phase, the State began its jury argument:
[The State]: Ladies and gentlemen, this was not a targeted attack.
Yeah, it wasn’t. That makes it even scarier. He had no
idea who these people were, where they lived. He could
have gone into your house, your house, to your house.
[Gennusa]: Objection, Your Honor. Improper argument.
[Court]: Overruled.
[The State]: He could have gone to anyone’s house. It just happened
to be the Rogers. . . .
The State continued its argument regarding other aspects of the case and
Gennusa’s defense that his alleged mental illness was mitigating factor in assessing
his punishment. The State pointed out the violent nature of Gennusa’s actions and
his criminal record, among other factors. The State then concluded, “Again, this
wasn’t a targeted attack and that makes it even worse and as citizens of Harris
County, I am asking you to sentence this man to prison. I’m asking you to take this
man off the streets, and I’m asking you to keep Harris County safe. Thank you.”
B. Standard of Review
As a general rule, appropriate jury argument falls within only four areas:
(1) summation of the evidence; (2) reasonable deductions from the evidence;
(3) answer to argument of opposing counsel; and (4) a plea for law enforcement.
Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019). The focus,
therefore, has always been upon encouraging the jury to decide the case on the
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evidence in front of it rather than encouraging juries to reach a decision based upon
information outside the record. See id. at 240. This is because improper references
to information outside the record are generally designed to arouse the passion and
prejudice of the jury, and, as such, are inappropriate. See id. Further, arguments
must stick to matters that are in evidence or inferable from the evidence; it cannot
be “abusive or inflammatory.” See id. at 241.
To preserve a complaint that jury argument was improper, a defendant must
lodge a “proper objection,” such as asserting “that the argument was outside the
record, was not a reasonable deduction from the evidence, was not an answer to
argument of opposing counsel, and was not a plea for law enforcement.” Hougham
v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.] 1983); Vasquez v.
State, 501 S.W.3d 691, 705 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
“Ordinarily, an objection to ‘improper argument’ is too general to preserve error.”
Miles v. State, 312 S.W.3d 909, 911 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d) (citing Hougham, 659 S.W.2d at 414 and collecting other cases on
objections to jury argument). Statements such as, “We will object to this line of
argument” are “insufficient to preserve error” regarding a claim of improper jury
argument because they are “too general to apprise the trial court of the ground” for
a defendant’s objection. Hougham, 659 S.W.2d at 414; see TEX. R. APP. P.
33.1(a)(1)(A) (requiring, as prerequisite to review, that objection “stated the
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grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context”).
C. Analysis
The State argues that Gennussa’s general objection that the State’s
comments that “this was not a targeted attack” and Gennusa “could have gone into
your house, your house, to your house” were “improper argument” is too general to
preserve anything for our review. We agree. A general objection like the one
Gennusa made here can be sufficient to preserve error when the record shows the
trial court understood the nature of the objection. See Gonzalez v. State, 541
S.W.3d 306, 316 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Vasquez, 501
S.W.3d at 705 (trial court’s understanding of objection may be evidenced by
comments or admonitions after its ruling). However, nothing in the record provides
any context for the objection, nor did the trial court make further rulings that would
make the ground or grounds for Gennusa’s general objection clear. Gennusa did
not specify at trial that he believed the State’s comments encouraged jurors to
abandon their objectivity, nor did he specify “that the argument was outside the
record, was not a reasonable deduction from the evidence, was not an answer to
argument of opposing counsel, and was not a plea for law enforcement.” See
Hougham, 659 S.W.2d at 414; Vasquez, 501 S.W.3d at 705. We conclude that his
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objection to “improper argument” was “too general to preserve error.” Miles, 312
S.W.3d at 911.
Even if this error were preserved, and assuming without deciding that the
State’s argument was an improper invitation to abandon objectivity, Gennusa has
failed to establish that he suffered any harm. To determine whether an appellant’s
substantial rights were affected, we balance the severity of the misconduct (i.e., the
prejudicial effect), any curative measures, and the certainty of the punishment
assessed absent the misconduct. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004) (citing Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim.
App. 2000)).
Applying these factors, we conclude that the State’s comments did not affect
Gennusa’s substantial rights. The State’s objectionable comments consisted of one
sentence preceded and followed by a proper discussion of the evidence and the
State’s argument that the offense was random, rather than targeted. Further, the
severity of the misconduct as measured by the prejudicial effect of the State’s
remarks is slight. The jury was reminded of the State’s burden of proof prior to the
State’s closing argument and in the court’s jury charge. And the strength of the
evidence supporting the assessment of a 35-year sentence was strong. As we stated
above, Marrder, Rhonda, and Howard all identified Gennusa in court as the man
who forced his way into the Rogers’ home and assaulted Howard. The details of
15
Gennusa’s assault of Howard were graphic, and Howard and Rhonda both testified
about the negative impact the offense had on them physically and emotionally. The
State also presented evidence of Gennusa’s criminal history, including proving an
enhancement based on Gennusa’s previous conviction for assault against a family
member as a repeat offender. Given these factors, we have fair assurance that the
State’s comments had little or no effect. See Hawkins, 135 S.W.3d at 77; see also
Franklin v. State, 459 S.W.3d 670, 681–82 (Tex. App.—Texarkana 2015, pet.
ref’d) (concluding that, although prosecutor’s plea to jurors to “fight for those little
girls” was improper plea to abandon objectivity, error was harmless because
severity of misconduct was slight, jurors were reminded of proper burden of proof,
and evidence supporting conviction was strong).
We overrule Gennusa’s second issue.
Reformation of Judgment
In his third issue, Gennusa asks this Court to modify the judgment to
properly reflect that he was convicted of burglary of a habitation with intent to
commit aggravated assault.
The record here, including the indictment and jury charge, reflect that
Gennusa was charged with and convicted of burglary of a habitation with the intent
to commit aggravated assault. However, the judgment of conviction erroneously
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states that he was convicted of burglary of a habitation with the intent to commit
theft.
“This court has the power to modify an incorrect judgment to make the
record speak the truth when we have the necessary information to do so.” Cazarez
v. State, 606 S.W.3d 549, 557–58 (Tex. App.—Houston [1st Dist.] 2020, no pet.)
(citing TEX. R. APP. P. 43.2(b) and Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993)); see also Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim.
App. 2012) (“[W]hen a defendant appeals his conviction, the courts of appeals
have the jurisdiction to address any error in that case.”). “This includes the
authority to reform a judgment to reflect the correct offense.” Cazarez, 606 S.W.3d
at 558 (reforming judgment to reflect correct degree of theft); see Pfeiffer, 363
S.W.3d at 599; see also Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d) (reforming judgment to reflect that appellant was
convicted of aggravated assault and not “aggravated assault against pb servant”).
The record here reflects that Gennusa was convicted of burglary of a
habitation with the intent to commit aggravated assault, rather than with the intent
to commit theft. Accordingly, we reform the judgment to reflect the correct
offense.
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We sustain Gennusa’s third issue and modify the judgment to reflect the
correct offense—burglary of a habitation with the intent to commit aggravated
assault.
Conclusion
We modify the judgment to reflect that Gennusa was convicted of burglary
of a habitation with intent to commit aggravated assault. We affirm as modified.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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