Bush v. State

Full title: JOE ROBERT BUSH III, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 12, 2009

No. 14-08-00322-CR (Tex. App. Mar. 12, 2009)

Opinion

No. 14-08-00322-CR

Memorandum Opinion filed March 12, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 284th District Court Montgomery County, Texas, Trial Court Cause No. 07-03-03196-CR.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.

MEMORANDUM OPINION

CHARLES W. SEYMORE, Justice.

A jury found appellant, Joe Robert Bush III, guilty of the felony of operating a motor vehicle in a public place while intoxicated, as a third offense. The trial court sentenced appellant to five years' confinement. In a single issue, appellant argues that the State required him to wear a monitoring device during trial, in violation of his due process right to the presumption of innocence. Because our disposition is based on settled law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was involved in a one-person motorcycle accident. After he failed field sobriety tests, he was arrested and subsequently charged with operating a motor vehicle while intoxicated, as a third offense. Trial of the guilt/innocence phase was to a jury. At the conclusion of voir dire, the trial court called defense counsel and the prosecutor to the bench to discuss which venire persons had valid reasons to be released from jury duty and to entertain challenges for cause. Defense counsel challenged Ms. Bratsakis. The concern was whether appellant's two previous convictions for driving while intoxicated would prejudice her to such an extent she would not follow the law. The following interaction ensued:

THE COURT: Ms. Bratsakis, we are going to ask you a few questions. You're still being reported. This our microphone.

Mr. Daniels, anything from the State? It's Mr. Patterson's challenge, I guess. Mr. Patterson?

MR. PATTERSON: You had answered a question — and I'm not sure what that question was — but you had indicated — I think it was two priors, that you said basically that you were of the opinion that, kind of like when the guy said two strikes and you're out. And my question is: Can you follow the law as to this DWI charge, third, or will that prejudice you to the point where you agree with I think it was another juror — it might have been you — that said two strikes and you're out, if the State puts on something?

JUROR BRATSAKIS: I think the biggest predictor of anything is history. If this guy has already been convicted twice — you know, I realize this is a small court, but also the truth is as we are sitting there, long before things are starting, you can hear your total conversation with your defendant. The fact that he's also sitting there with a monitoring device, we know those things play into the fact that —

THE COURT: Is there anything, then — Mr. Daniels, do you want to ask any questions?

MR. DANIELS: No. I will agree.

. . .

THE COURT: I'm going to grant defendant's motion for cause on [Ms. Bratsakis].

Appellant did not object to wearing the monitoring device at trial. No other mention of it appears of record.

II. DISCUSSION

Appellant raises a single issue on appeal: whether the trial court violated his due process right to the presumption of innocence by requiring him to wear a monitoring device during trial. To preserve error for appeal, the record must show that a party made a timely and specific objection to the trial court. See Tex. R. App. P. 33.1(a). Additionally, in cases involving a defendant forced to wear jail clothing during trial, a timely objection is necessary to establish a constitutional violation. See Estelle v. Williams, 425 U.S. 501, 512B13 (1976) (holding, when inmate wore jail attire during trial, his failure to object in trial court negated the presence of compulsion necessary to establish a constitutional violation). Appellant has not argued a different rule should apply to defendants wearing monitoring devices. Appellant did not object to his wearing the monitor or otherwise bring it to the trial court's attention. There is nothing in the record to indicate its size, where it was worn, why appellant was wearing it, or whether any other jurors noticed it. Other than venire member Bratsakis's comment on the monitor, no other reference to it appears in the record. There is nothing to indicate whether the other jurors heard Ms. Bratsakis's comment.¹ Appellant has not preserved error. See Tex. R. App. P. 33.1(a). His lack of objection also results in his not being able to establish a constitutional violation. See Williams, 425 U.S. at 512B13. We overrule appellant's sole issue and affirm the judgment.