Danny Lee Strong v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-91-218-CR

DANNY LEE STRONG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,346

O P I N I O N

Danny Lee Strong was convicted of felony escape for which the jury assessed punishment at 99 years and a $10,000 fine. See Tex. Penal Code Ann. 38.07 (Vernon 1989). In his only point of error, Strong asserts that the court erred in allowing him to be seen in "prison garb and shackles" prior to trial.

Strong was being brought to the courtroom in prison clothes and shackles when he was seen by Frank W. Price, a member of the jury panel who was not selected for the jury. Strong objected to being in "prison garb." The judge overruled the objection, but allowed Strong to change clothes almost immediately. There is no evidence in the record that the jury panel was in the courtroom before Strong changed clothes. In a post-trial affidavit, Price said two other veniremen were with him when he saw Strong, one of whom Bill Marrs was selected for the jury. Price did not say, however, that he or Marrs talked about seeing Strong or even that Marrs actually saw Strong.

We recognize that an accused should not be compelled to go to trial in prison or jail clothing because it might impair the presumption of innocence. Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976). Likewise, the constitutional presumption of innocence is infringed when the jury sees the accused in shackles. Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). However, a momentary, inadvertent, and fortuitous encounter outside of the courtroom between a handcuffed accused and potential jurors does not necessarily call for a mistrial or reversal. Clark v. State, 717 S.W.2d 910, 919 (Tex. Crim. App. 1986). Strong, in prison clothes and shackles, was seen briefly in the hallway outside the courtroom. There is no evidence that this was discussed by any of the jurors. Also, Strong presented no evidence that the one venireman who eventually became a juror was influenced by seeing Strong nor even that he actually saw Strong.

Finally, even if one of the jurors did see Strong in prison clothes or shackles, we find beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R. App. P. 81(b)(2). This trial was about a felony escape. The prosecution was allowed to tell the jury, without objection, that Strong currently was incarcerated in a state penitentiary. A momentary sighting of Strong in prison clothes or shackles could do no more harm than the jury's knowing that he was incarcerated.

We overrule Strong's point and we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 22, 1992

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