Ross v. State

1

JASON MONDRAE ROSS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-22-00212-CR

Court of Appeals of Texas, Fifth District, Dallas

July 21, 2023

Do Not Publish TEX. R. APP. P. 47.2(b). 220212F.U05

On Appeal from the 416th Judicial District Court Collin County Texas Trial Court Cause No. 416-80241-2022

Before Justices Partida-Kipness, Smith, and Breedlove

MEMORANDUM OPINION

PARTIDA-KIPNESS JUSTICE

In three issues, appellant Jason Mondrae Ross challenges his sentence for possession of a controlled substance. Ross argues (1) the trial court erred by requiring him to wear jail-issued clothing during the punishment portion of his trial; (2) the trial court erred by not providing a technical definition for "final" in the jury charge; and (3) the evidence was insufficient to find the enhancement paragraphs true. Following our review of the record, we determined the judgment should be modified to reflect a finding of "true" for both enhancement paragraphs. We affirm as modified.

I. BACKGROUND

Ross was originally indicted for the manufacture or delivery of a controlled substance, penalty group one, of more than four grams but less than two hundred grams. See TEX. HEALTH &SAFETY CODE § 481.112(D). FOLLOWING A JURY TRIAL, ROSS WAS CONVICTED OF THE LESSER-INCLUDED OFFENSE OF POSSESSION OF A CONTROLLED SUBSTANCE, PENALTY GROUP ONE, BETWEEN FOUR AND TWO HUNDRED GRAMS. See id. § 481.115(d).

At the beginning of the punishment hearing, the trial court went on the record to discuss what occurred after Ross's guilty verdict. The evening before, Ross was allowed to hug his mother and turn over his belongings. Immediately after, Ross had an outburst in the courtroom, using lots of expletives. The trial court stated it took "four or five deputy sheriffs to remove" Ross from the courtroom. After Ross returned to the jail, he made a number of phone calls where he threatened the court staff, District Attorney's Office staff, his own attorney, and made other negative comments about the court proceedings.

The trial court decided "in light of that and these safety concerns that have arisen as a result of Mr. Ross's behavior," he would remain in visible restraints. Ross's counsel then asked the trial court if Ross could be placed in street clothes and not his jail-issued outfit. Counsel additionally asked if he was left in his jail-issue clothing, if the trial court would give the jury an instruction stating "any time someone is convicted they are placed in these clothes and they have these restraints." The trial court denied counsel's request and stated it wanted to "make it clear the reason that there are visible restraints for [Ross] is because of his behavior yesterday" and this is not a normal situation. The trial court stated, "I don't want to misrepresent to the jury that this is the normal cause and course of action." It further said, "So the reason [Ross] is dressed as he is and restrained as he is is because of his behavior."

The trial court advised Ross on how to sit to keep the restraints from being visible to the jury. Additionally the court stated Ross would enter and leave outside of the presence of the jury.

The State presented testimony from Investigator Michael Coleman with the Collin County District Attorney's Office. Investigator Coleman was present the day before when Ross's courtroom outburst occurred. He stated after Ross said goodbye to his mother, he "just lost it," and became "irate" stating "I'm not doing this." Investigator Coleman explained he came to the front of the courtroom in case the situation escalated because he felt Ross's anger was directed at the prosecutors. As multiple sheriff's deputies attempted to take Ross into custody, Investigator Coleman said Ross was yelling and cursing claiming they were "racist m'f ers," the "whole thing was a set up," and several other obscenities. He stated it was not easy to get Ross into custody and it was a "dangerous situation" because there is always a chance a defendant could get a hold of a law enforcement weapon. Investigator Coleman also assisted with downloading Ross's jail calls. He explained in the calls to family members, Ross stated it was "all a setup, the jury was all white and racist, and this whole system is just a racist system." Ross also stated he would have assaulted an officer, the prosecutors, and his defense attorney but he did not want additional charges filed against him.

After the State proved the enhancement paragraph convictions, Ross was sentenced to forty-five years' imprisonment. This appeal followed.

II. ANALYSIS

A. Jail-Issued Clothing

In his first issue, Ross alleges the trial court erred by requiring him to remain in his jail-issued clothing during the punishment phase of trial.^[1]

"It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." Illinois v. Allen, 397 U.S. 337, 343 (1970). "We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." Id. "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. Such a compulsion would violate the defendant's right to a fair trial and his right to be presumed innocent." Randle v. State, 826 S.W.2d 943, 944-45 (Tex. Crim. App. 1992). A defendant must timely object to being made to wear prison clothes or he waives the right to complain. Donjuan v. State, 461 S.W.3d 611, 618 (Tex. App.-Houston [14th Dist.] 2015, no pet.). Security concerns may place a limit on the right to be tried in non-jail clothing. Arriaga v. State, No. 03-06-00104-CR, 2008 WL 2065973, at *2 (Tex. App.-Austin May 14, 2008) (mem. op., not designated for publication); see also United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988). When security is an issue, even the use of shackles may be allowed. Arriaga, 2008 WL 2065973, at *2; see Deck v. Missouri, 544 U.S. 622, 632 (2005).

Here, the trial court made sure to explain on the record why it felt Ross should remained shackled and in jail attire during the punishment phase of trial. The court stated it had safety concerns due to Ross's behavior the previous afternoon and evening. Not only had Ross had a vulgar outburst inside the courtroom, it took multiple sheriff's deputies to restrain Ross and remove him following his outburst. Ross's anger did not subside upon leaving; he made multiple calls to family members in the evening and threatened members of the court and the District Attorney's staff and made statements about the jurors.

The jury heard testimony during punishment from Investigator Coleman regarding Ross's outburst and the physical restraint needed to remove him from the courtroom. The jury also heard the jail calls where Ross threatened individuals in the courtroom, and said the trial was a "set up" against him and called the jurors "racists," as well as evidence of Ross's prior criminal convictions.

The trial court did not commit error by having Ross remain in his jail-issued clothing. To allow Ross to change into civilian clothes would have raised safety issues with the court staff, whom Ross had threatened less than twenty-four hours prior. See Arriaga, 2018 WL 2065973, at *2. Any concern the trial court expressed was valid based on the events which occurred. We overrule Ross's first issue.

B. Jury Charge Definition

In his second issue, Ross alleges the trial court erred by not providing a technical definition for "final" in the punishment jury charge.

Jury charge error stems from the denial of a defendant's right to have the trial court provide the jury with instructions correctly setting forth the "law applicable to the case." Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); Tex. Code Crim. Proc. art. 36.14. A trial judge is obligated to instruct on the law applicable to the case, for "the trial judge is ultimately responsible for the accuracy of the jury charge and accompanying instructions." Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). In Almanza v. State, the court of criminal appeals held errors in the jury instructions do not warrant "automatic reversal" and are instead subject to a harm analysis. Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Almanza, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g)). Under Almanza, a defendant may obtain reversal through a claim of charge error upon a showing of "some harm" if he objected to such error at trial, or upon a showing of "egregious harm" if he did not object. Id.; Mendez, 545 S.W.3d at 552.

If the "defendant never presents a proposed jury instruction (or fails to object to the lack of one), any potential error in the charge is reviewed only for 'egregious harm' under Almanza." Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing Almanza, 686 S.W.2d at 174). As in this case, when an "appellant d[oes] not object to the charge, the error does not result in reversal 'unless it was so egregious and created such harm that appellant was denied a fair trial.'" Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (quoting Almanza, 686 S.W.2d at 171). "Errors that result in egregious harm are those that affect the 'very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Id. at 461-62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, the "appellant must have suffered actual, rather than theoretical, harm." Id. at 461.

Trial courts...