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Morris v. State

Court of Appeals of Texas, Eighth District, El Paso

February 28, 2018

TERRY LEE MORRIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.

         Appeal from the 396th District Court of Tarrant County, Texas (TC# 1382399D)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, Justice

         When the trial judges of this State don their robes and ascend the bench each morning, those with criminal dockets are often confronted with defendants who are rude, disruptive, noncompliant, belligerent, and in some cases, even murderously violent. In the face of this reality, Texas trial judges shoulder another heavy burden: the burden to tame the chaos before them, impose order, and uphold the dignity of the justice system. "The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). When challenging defendants breach decorum and threaten to tarnish proceedings with bad behavior, we afford trial judges "sufficient discretion to meet the circumstances of each case." Id.

         But discretion has its limits.

         Appellant Terry Lee Morris was tried and convicted on one count of soliciting the sexual performance of a child. After the jury found enhancing factors true, Morris was sentenced to 60 years in prison. Morris does not challenge the legal sufficiency of his conviction on appeal. Instead, Morris advances four procedural complaints in his brief. One complaint in particular disturbs us.

         Because the trial transcript clearly shows that the trial judge, during a heated exchanged with the defendant outside the presence of the jury, ordered his bailiff to electrocute the defendant three times with a stun belt-not for legitimate security purposes, but solely as a show of the court's power as the defendant asked the court to stop "torturing" him-we harbor grave doubts as to whether Morris' trial comported with basic constitutional mandates. As such, we have no choice but to overturn Morris' conviction and remand for a new trial.[1]

         BACKGROUND

         Given Morris' complaints are largely procedural and the facts largely uncontested for purposes of appeal, we will keep our discussion of the factual circumstances surrounding his crime brief. Morris dated the mother of the victim, J.C., who was then fifteen. After Morris and J.C.'s mother ended their relationship, Morris began contacting J.C. online. The conversations turned sexual, and Morris solicited and received nude images of J.C. that lewdly depicted her genitals. Police seized Morris' cell phone, which contained transcripts of the electronic messages as well as lewd photographs of J.C. and Morris.

         DISCUSSION

         Morris complains he was harmed by four procedural errors committed by the trial court. In Issue One, Morris argues the trial court erred in its use of a stun belt. In Issue Two, Morris contends the trial court abused its discretion in denying his counsel's motion to withdraw based on a conflict of interest, as Morris had filed a lawsuit against his counsel in federal court. In Issue

         Three, Morris maintains that the trial court should have conducted a hearing to determine if he was competent to stand trial. Finally, in Issue Four, Morris complains that the trial court erred by failing to grant his motion to suppress, since the arrest affidavit only supported probable cause as to a search for nude images on his cell phone, not a search of non-photographic data.

         We will begin and end our discussion of Morris' appellate issues with Issue One.

         Issue One: Improper Use of Stun Belt

         In Issue One, Morris asserts that the trial court violated his constitutional rights "to a fair trial, to confront the witnesses, to confer with counsel, to be present at trial, [and] to participate in his defense" by repeatedly shocking Morris with a stun belt for failing to answer the trial court's questions regarding compliance with decorum, all in the absence of any valid courtroom security concerns. We agree.

         The judicial misconduct of which Morris complains took place on the first day of the guilt-innocence phase of trial. After the prosecutor read the indictment, trial judge George Gallagher asked Morris for his plea, which led to the following exchange in open court:

THE COURT: To this charge you may plead guilty or not guilty. What is your plea?
THE DEFENDANT: Sir, before I say that, I have the right to make a defense.
THE COURT: The --
THE DEFENDANT: It was brought to my attention by the United States district court to do this. And before the Court -- for the information of the Court, yesterday you gave this man orders to put a shock rag or a shock collar on my ankle to prevent me from saying anything in my defense. If it happens, it happens.
But let me just say for the record --
THE COURT: No, wait just a minute.
THE DEFENDANT: -- lawsuit pending against this judge.
THE COURT: Jury, go to the jury room.
THE DEFENDANT: I have a lawsuit pending against this attorney. I've asked this judge to recuse himself off my case. It's in relation to the Ken Paxton case, Attorney General Ken Paxton. I've asked this attorney to recuse himself off my case. They both refused to. I have that right.

         (Jury leaves courtroom)

         Outside the presence of the jury, Morris attempted to continue his objections. The trial court warned Morris about any further outbursts. When Morris continued to speak and mentioned his motion to recuse and federal lawsuit against the trial judge, the trial judge asked his bailiff to intervene by activating the stun belt attached to Morris' leg:

THE DEFENDANT: The defendant has a right to object to procedures whereby a party asserts a piece of evidence or other matters -
THE COURT: Mr. Morris. Mr. Morris. I am --
THE DEFENDANT: That's the law.
THE COURT: Mr. Morris, I am giving you one warning. You will not make any additional outbursts like that, because two things will happen. Number one, I will either remove you from the courtroom or I will use the shock belt on you.
THE DEFENDANT: All right, sir.
THE COURT: Now, are you going to follow the rules?
THE DEFENDANT: Sir, I've asked you to recuse yourself.
THE COURT: Are you going to follow the rules?
THE DEFENDANT: I have a lawsuit pending against you.
THE COURT: Hit him. (Deputy complies)[2]

         After shocking Morris the first time, the trial court again asked Morris if he would adhere to courtroom decorum:

THE COURT: Are you going to behave?
THE DEFENDANT: I'm an MHMR client.
THE COURT: Are you going to behave?
THE DEFENDANT: I have a history of mental illness.
THE COURT: Hit him again.

         (Deputy complies)

         Following the second shock, the trial court repeated the same question to Morris several times over Morris' protestations that he was under medication for mental health problems and that the trial court was "torturing" him. When Morris stated that he was firing his attorney, the trial court apparently took Morris' remarks as an attempt to invoke his Faretta[3] right to self-representation. The trial court began asking Morris a question ostensibly related to the Faretta invocation, but when Morris continued to speak about other matters, the trial court persisted in making use of the stun belt:

THE DEFENDANT: I have a history of mental illness. You're wrong for doing this.
THE COURT: Are you going to behave?
THE DEFENDANT: You're torturing an MHMR client. I have agoraphobia. I'm under medication.
THE COURT: Are you going --
THE DEFENDANT: I take 17 pills a day for my disability, my MHMR disability. You have no right to do this.
THE COURT: Are you going to behave?
THE DEFENDANT: I have the right --
THE COURT: You have no right to disrespect the Court.
THE DEFENDANT: I have the right. Nobody is --
THE COURT: I'm going to give you the option to do one of two things.
You can either behave in the courtroom --
THE DEFENDANT: I don't have an attorney. I'm firing this man. I've told him to get off my case. And the defendant has a right to refuse counsel. I have the right to represent myself in this case, and I shall.
THE COURT: All right. Let's talk about that.
Counsel may be seated.
How far did you go in school?
THE DEFENDANT: Sir, that's beside the point. There's serious allegations that I have in the United States District Court against this man. No one wants to be represented by someone they have a lawsuit against. No one wants a judge to preside over their case who the lawsuit is against. No one wants to be tortured because they're an MHMR defendant prevented from saying anything in the Court in front of the jury pertaining to any such cases such as the grand jury -
THE COURT: Mr. Morris, are you going to answer my question?
THE DEFENDANT: I've asked you, I've filed a motion asking --
THE COURT: Would you hit him again.
(Deputy complies)
THE DEFENDANT: -- to recuse yourself from the Bench off my case.

         After electrocuting Morris a third time, the trial court again asked Morris whether he would be obedient. When Morris did not answer with a "yes" or "no, " the trial court had Morris physically removed from the courtroom:

THE COURT: Are you going to answer my questions?
THE DEFENDANT: You refuse to --
THE COURT: Are you going to answer my questions? Yes or no.
I need an answer.
THE DEFENDANT: I'm an MHMR ...

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