Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 92-5642

MARIO MARQUEZ,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional
Division, ET AL.,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of Texas

(January 10, 1994)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
In his first federal habeas petition, Mario Marquez urges that
his conviction of capital murder and sentence of death imposed by
a Texas jury must be set aside for four constitutional errors. He
first contends that he has been denied due process and a
fundamentally fair trial because he was handcuffed behind his back
and forced to wear leg irons during the sentencing phase of his
trial, arguing that the district court failed to hold a required
hearing and that there was no justification for the restraints.
Second, Marquez urges that his trial counsel was precluded from
presenting mitigating evidence by the structure of the Texas

capital sentence jury questions. Third, Marquez urges that the
jury was precluded from considering mitigating evidence contrary to
Penry v. Lynaugh, 492 U.S. 302 (1989). Finally, he contends that
the trial judge allowed the jury to consider prior unadjudicated
offenses during the sentencing phase of his trial without requiring
that the jury find that the state had proven their factual basis
beyond a reasonable doubt, denying his rights under the Fifth,
Eighth, and Fourteenth Amendments.
I.
A.
The Texas Court of Criminal Appeals on direct appeal rejected
Marquez's contentions regarding the trial restraints, and we reject
his contentions for essentially the same reasons. Marquez v.
State, 725 S.W.2d 217, 226-231 (Tex. Crim. App., cert. denied, 484
U.S. 872 (1987). We agree with Marquez that the appearance of a
defendant in shackles and handcuffs before a jury in a capital case
requires careful scrutiny. Shackling carries the message that the
state and the judge think the defendant is dangerous, even in the
courtroom. It is not that shackling signals the prosecutor's
opinion--indeed, there is nothing subtle about the prosecutor's
view. A jury knows and understands that. It is obvious that an
accused does not enjoy unfettered freedom and may in fact not be on
bail. It follows that because an accused is led away each day does
not unduly tax his claim of innocence.
Apart from the risk of prejudice to the defendant, the
indecorous appearance of a shackled defendant in an American trial
2

demands close scrutiny of the practice. Solemnity and that
indefinable but knowable ambiance of evenhanded judicial
disinterest and respect for the dignity of individuals are
components of a fair trial. Rules will not alone create them but
rules can maintain the conditions in which they flourish.
When the complained of restraint comes only in the sentencing
phase of a capital charge, a jury has just convicted of a violent
crime--so the risk of prejudice is lessened from the risk of such
events during the guilt phase. At the same time, the defendant's
life turns on the same jury's answer to the question of future
dangerousness, so the risk, although less, is not eliminated.
Restraint at trial may carry a message that a defendant continues
to be dangerous.
On the other hand, shackling a defendant may be necessary to
preserve the dignity of the trial and to secure the safety of its
participants. It is immediately apparent that any rule that would
accommodate these competing interests rests on the word
"necessary". The required scrutiny must balance the state's
interest of safety and decorum against these concerns. Simply put,
a defendant must not be shackled before his jury unless the
restraint is necessary to protect the safety of the trial
participants or the sanctity of the trial itself.
We need not detail the images conjured by the range of
restraints of a defendant in the courtroom to conclude that the
threats to a fair trial posed by visible restraints are
sufficiently large and sufficiently likely that due process secures
3

to the defendant a right to contest their necessity. Elledge v.
Dugger, 823 F.2d 1439, 1451-52 (11th Cir. 1987), cert. denied, 485
U.S. 1014 (1988); Zygadlo v. Wainwright, 720 F.2d 1221, 1223-24
(11th Cir. 1983), cert. denied, 466 U.S. 941 (1984).
The process due must reflect the inherent case-specific
character of the trial court's decision to restrain a defendant and
the reality that the issue is usually collateral to the trial
itself. Relatedly, because the trial judge is uniquely situated to
make this judgment call he must be given considerable discretion.
Given this discretion, it is not a question of whether, looking
back, lesser restraints might have been adequate, although that is
relevant. Rather, it is a question of whether it was reasonable to
conclude at the time that the restraint was necessary. Put another
way, necessity does not here trigger a type of "least means"
analysis. That in retrospect some lesser restraint might have
sufficed is not determinative. The trial judge must only have
acted reasonably in responding to the scene before him using no
more restraint than appeared necessary.
Finally, in this federal habeas context we will not upset a
state trial judge's decision absent a clear abuse of discretion.
In a practical sense, our review is analogous to review of a state
trial judge's ruling on a Witherspoon objection. See Wainwright v.
Witt, 469 U.S. 412, 426-30 (1985).
B.
The Texas Court of Criminal Appeals described the events
leading to shackling Marquez as follows:
4

[D]uring the afternoon session of the first day of
the punishment phase, the trial judge ordered that
appellant be handcuffed and shackled for the remainder of
the trial. The judge made the following findings as
justification for the order on November 26, 1984, just
prior to instructing the jury on punishment.
THE COURT: . . . I will go ahead and make my
findings of fact at this time. The defendant has
been found guilty of choking the complainant to
death. At the same time he choked his former wife
to death. The defendant while in jail has carried
deadly weapons on his person. The Defendant while
in jail stabbed a fellow inmate with a ballpoint
pen. The Defendant while in jail choked a fellow
prisoner. In 1983 the Defendant attempted to
murder a uniformed officer driving a marked
autombiles [sic] while trying to evade arrest for
four burglaries. The Defendant endangered the
lives of many innocent people while trying to evade
arrest by driving on the wrong side of the freeway.
Since being found guilty of capital murder while
being transferred from the courtroom the Defendant
attacked a television cameraman by knocking his
television camera to the floor and on the same
occasion, spit on another cameraman or spit on a
camera. In fact, since being found guilty of
capital murder the Defendant threatened prosecutor
Ed Garcia in the courtroom.
The Defendant on numerous occasions since being
found guilty of capital murder has threatened to
run and cause the officers to have to shoot him and
kill him. Unless his legs are chained there is a
danger he will do so.

The Defendant is young, powerful and very quick and
there is a grave danger he might grab the firearms
of an officer and kill officers of the court and
onlookers unless he is kept in handcuffs.
MR. SPRINGER: May I add something to the court's
findings, Your Honor?
THE COURT: Yes, sir.
MR. SPRINGER: I believe that the Court was correct
that the Defendant did have the leg brace on at the
time that he assaulted the cameraman.
5

THE COURT: That failed to restrain him from
assaulting a cameraman who was anywhere from three
to five feet away and while counsel for Defendant
has frequently referred to the situation as being a
circus atmosphere, the court finds that no such
atmosphere has existed either in the courtroom or
in the hall except that which was brought on by the
Defendant himself when he attacked the cameraman.
In fact, two disputes took place in the hall and
the court immediately removed people that [sic]
engaged the defendant in an argument. And there
has been absolutely no circus atmosphere tolerated
and none will be tolerated. All right. Anything
else?
MR. SPRINGER: Yes. I believe that the Defendant has
told the court that he was thinking about
committing suicide and has told the bailiffs and
everybody he wasn't afraid of the needle and he was
not afraid to die, which shows that he is an
extremely dangerous individual.
THE COURT: Well, the court adopts those statements
as part of the findings and there is at least one
more in the courtroom that has four young children
that [sic] is an officer of the court whose life
would be in danger. There's several others with
children to be raised. There's numerous officers
of the court, bystanders, people whose lives would
be in danger if this Defendant were allowed to not
be handcuffed. There is no doubt in this court's
mind that he is a grave danger to the people in
this courtroom as well as to himself.
At the time the trial judge made his findings he had
already heard all of the evidence presented at both the
guilt/innocence and punishment phases of trial. Some of
his findings were based on the evidence then presented
and summarized at the outset of this opinion. In the
interests of time and space we will not review that
evidence here. However, certain other evidence,
presented close to the time and at the time of trial,
obviously bore on the judge's findings and it will be
reviewed.
On July 12, 1984, a hearing was held on a motion for
withdrawal of appellant's counsel because of appellant's
inability to pay. During that hearing the following
testimony was elicited.
6

THE COURT: Obviously you don't have the money so
I'm going to appoint a lawyer to represent you.
MR. MARQUEZ: That's okay, sir, because I ain't got
to talk to him. I ain't got to talk to no State's
attorney. I would rather be dead than talk to a
State's attorney.
THE COURT: That may be exactly the problem you
face. You understand you are charged with capital
murder which could result in the death penalty for
you?
MR. MARQUEZ: That's okay.
THE COURT: So its not one of these things that can
be taken lightly. It is a very --
MR. MARQUEZ: Anyway I was going to take my life
last night. I was about to do it last night.
THE COURT: I see you didn't do it. All right. I
want to thank you all very much.
On October 18, 1984, a pretrial hearing was held on
appellant's motion to suppress certain oral statements
made while in custody. During the course of that hearing
Detective Anton Michalec testified as to remarks made by
appellant at the police station shortly after his arrest.
Q.
[by the State's Attorney]: Did he say anything else
about --
A.
Well, he did indicate that the police officer that
[sic] apprehended him where he was apprehended was
yellow for not shooting him and he said he wished
he would have shot him and just got it over with
and he indicated that -- by his actions and so
forth that -- I took it he might try to commit
suicide, and I called the jail and notified the
jail that he may have some suicidal tendencies at
the time, so 'watch him.'
Q.
Did he say whether or not he told the officer that
the officer was yellow for not shooting him?
A.
No, sir.
Q.
What did he say?
A.
He just told me in his own words that he felt that
the officer should have shot him when he
7

apprehended him and just gotten it over with then
and there.
Q.
Did he say why the officer should have shot him?
A.
No, he said he wasn't a man, though, for not
shooting him. . .
* * * * * *
Q.
[by appellant's counsel] All right. 'He said after
this he wanted to commit suicide and would hang
himself?'
A.
Yes.
Q.
He did say that.
A.
Yes.
Q.
Did he specifically mention that he wanted to hang
himself?
A.
Yes, ma'am. It would not be in my report if he
didn't.
Q.
All right. What did you say to that?
A.
Well, I made no reply, but like I said earlier, I
did call the jail because he made those threats. I
was concerned that he might try to harm himself and
I told him what he said.
Q.
All right. Then also he talked of how he wanted the
police officer that caught him to shoot him?
A.
Yes.
Later during the hearing evidence was presented to
show that appellant was the subject of a prior
outstanding arrest warrant for robbery involving a bodily
injury. The outstanding warrant was issued three weeks
before the murder in the instant case.
On November 26, 1984, one of the State's Attorneys,
Edward Garcia, stated in closing argument that,
8

[A]fter the altercation that was had Monday at the
doorway1 when Mr. Marquez was brought in and sat
down by the bailiffs, he was cursing in Spanish and
he said something to the effect that 'I'm tired of
people treating me like an animal.' And I was
sitting to his left and Mr. Marquez looked at me
and glared at me and said, 'That goes for that guy
sitting at the table there.'
Earlier on November 26, 1984, the court, outside the
presence of the jury heard the following testimony from
Lieutenant Billhartz of the Bexar County Sheriff's
Department.
THE COURT: All right. Have you been supervising the
handling of the Defendant, Mario Marquez, through
the time he has been charged with the capital
offense?
MR. BILLHARTZ: Yes, I have.
THE COURT: All right. Let me ask you this. In your
opinion are the threats and actions of the
Defendant such that you feel it is necessary that
he be handcuffed and have leg irons during the rest
of this trial?
MR. BILLHARTZ: Yes, I believe they are.
* * * * * *
Q.
[by appellant's counsel]: Are you familiar with the
leg brace Mr. Marquez is wearing right now?
A.
Yes, I am.
Q.
What is the purpose of that leg brace?
A.
To keep a person from running.
Q.
Okay. Do you have any information that Mr. Marquez
has actually run off anytime during this trial?
A.
Not yet, but he's made statements to the effect.
Q.
Okay. But no actual running?
A.
No. I don't have any information
1This refers to the incident with the television camera.
9

MR. STEVENS: That's all we have.
THE COURT: If he were not handcuffed, would there
not be a danger of his grabbing the pistol of one
of these bailiffs.
MR. BILLHARTZ: I think that is true.
THE COURT: And would the lives of all the court
officers be endangered?
MR. BILLHARTZ: It would.
After this testimony the trial judge made the
findings above and overruled appellant's final objection
to the handcuffs and leg irons. Appellant was not
displayed to the jury in leg irons and handcuffs prior to
their convicting him of capital murder.
Marquez, 725 S.W.2d at 228-31.
C.
Marquez's able counsel argues that the prior acts of violence
were not so violent, but does not rest there. Rather, Marquez
contends that he was denied an opportunity to be fully heard before
he was shackled. The argument points out that Marquez was ordered
shackled in the afternoon of the first day of the sentencing phase
of the trial; that the state trial judge did not make his findings
regarding the safety risks of an unshackled Marquez until shortly
before instructing the jury at the close of the sentencing phase.
The argument goes that this was a shackle now, explain later,
approach that denied Marquez a fair arbiter. When the trial court
made his findings he was justifying a decision earlier made, it is
said, and therefore was not about the business of fair decisions.
We are not persuaded. The trial court did decide to shackle
Marquez before he issued his reason from the bench. There is
nothing untoward about that--if Marquez had a reasonable
10

opportunity to be heard on the subject of restraint before it was
a fact.
Marquez never requested a hearing. We doubt that the state
trial judge was constitutionally obliged to conduct a hearing in
the absence of a request for one. We do not rest here because we
further conclude that the state judge had a reasonable basis for
the order to put on leg irons and handcuff Marquez at the time he
ordered it. We are also convinced that Marquez had a
constitutionally adequate opportunity to participate in the
development of the facts underpinning the state judge's decision.
The state trial judge had, in Marquez's presence and with his full
opportunity to cross-examine, heard the following evidence in open
court before ordering the shackling: (i) Marquez pleaded guilty on
January 11, 1984 to four separate indictments for burglary and an
earlier theft in 1977; (ii) defendant fled police in an automobile
and exchanged gunfire with the pursuing police while going the
wrong way on a major thoroughfare at speeds up to 100 mph; (iii) as
a juvenile Marquez was charged with "robbery by assault, strongarm,
ungovernable, unlawfully carrying a knife, paint sniffing and
burglary of a nonhabitation"; (iv) he had that morning assaulted
television cameramen in the hallway while wearing leg braces; and
(v) he said he was going to run and the bailiffs would have to
shoot him.
The trial judge knew that the bailiffs were each armed; that
the defendant had the quickness and strength to seize a bailiff and
perhaps take his weapon placing at risk persons in the courtroom.
11

The possibility of this occurring loomed large in the trial judge's
thinking. Less may have been enough, but we are persuaded that
these facts, with the fresh conviction for capital murder entailing
proof of two vicious murders and a violent sexual assault, were
enough.
II.
Marquez also asserts that the Texas capital sentencing scheme
violated the Eighth Amendment by restricting his opportunity to
present mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302
(1989). He also claims that this constraint deprived him of his
right to effective assistance of counsel guaranteed by the Sixth
Amendment by unduly narrowing the options available to him at
sentencing. See Strickland v. Washington, 466 U.S. 668 (1984). He
asserts that he had no meaningful opportunity to present mitigating
evidence that, inter alia, he is mentally retarded and was abused
as a child.
We cannot reach the merits of Marquez's claims because he made
the tactical decision not to present the mitigating evidence on
which he bases this appeal. "We have previously ruled that a
defendant's deliberate failure to introduce mitigating evidence as
a tactical decision ... does not come within the requirements
announced in Penry." May v. Collins, 904 F.2d 228, 232 (5th Cir.
1990), cert. denied, 498 U.S. 1055 (1991) (citations and internal
quotation marks omitted). Marquez argues that he made this
decision under troubling circumstances. At the time of his trial,
the only use that the jury could have made of his evidence would
12

have been adverse to his case and he had no reason to believe he
was entitled to a special instruction to the jury. This circuit
has considered this argument already, however, and has ruled in a
manner that offers Marquez no relief under the Eighth Amendment.
The same is true of Marquez's Sixth Amendment claim. See May v.
Collins, 948 F.2d 162, 166-68 (5th Cir. 1991), cert. denied, 112
S.Ct. 907 (1992).
III.
Marquez also argues that the trial court did not afford the
jury the opportunity to consider all of the mitigating evidence
that Marquez proffered. In particular, the trial court refused to
submit to the jury the issue "whether the conduct of the defendant
in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased." Marquez wanted the jury to
consider whether he perpetrated his heinous acts of physical and
sexual violence in response to infidelity by his wife. As Marquez
stood accused of murdering his niece, not his wife, under Texas law
there was no provocation "by the deceased" and therefore no basis
for submitting the issue to the jury. See Hernandez v. State, 643
S.W.2d 397, 401 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144
(1983).
Marquez argues that the fact that he was in a jealous rage
could have mitigated the wrong he committed by inflicting physical
and sexual violence on his innocent niece. Whether or not this
claim has merit, he is wrong in asserting that the jury had no
vehicle for considering it. The jury could have concluded that
13

Marquez killed in an angry response to infidelity and therefore
that he would be unlikely to be dangerous in the future. We have
noted in the past that "Penry does not require that a sentencer be
able to give effect to a defendant's mitigating evidence in
whatever manner or to whatever extent the defendant desires."
White v. Collins, 959 F.2d 1319, 1322 (5th Cir. 1992). In light of
this standard, we have held that the special issue addressing
future dangerousness meets the constitutional requirements for
considering the relevance of youth, even though no special
provision is made to reflect the fact that the young may be less
culpable. Id. at 1324. We conclude that the jury had an adequate
opportunity to consider that infidelity may have prompted Marquez's
violent acts.
IV.
Finally, Marquez argues that the trial court erroneously
allowed the court to hear evidence of various of Marquez's misdeeds
that were unrelated to the murder for which he stood trial. As the
jury had no obligation to find that the state had proven beyond a
reasonable doubt that Marquez had committed these acts, Marquez
asserts that consideration of this evidence was unconstitutional.
We have rejected this claim in the past. Milton v. Procunier, 744
F.2d 1091, 1097 (5th Cir. 1984), cert. denied, 471 U.S. 1030
(1985). We need not consider it again now. We AFFIRM the district
court's dismissal of Marquez's petition and VACATE the stay pending
appeal.
14