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Click here for the full text of this decision FACTS: Appellant Gerbrile Dwayne Davis was convicted of aggravated robbery. On the morning of the third day of trial, the trial court judge ordered that appellant be handcuffed for the remainder of the trial. Appellant’s counsel objected that this would violate appellant’s due process rights and interfere with effective attorney-client communication. Counsel explained that he always instructed his clients to communicate with him during trial by writing notes rather than talking, which distracted him from the trial proceedings, and that appellant would be unable to write without exposing his handcuffs to the jury. Counsel also asked the judge to articulate on the record a basis for ordering handcuffs because counsel had seen no evidence that appellant presented a security risk. The judge agreed that “[t]here’s been no specific evidence presented to this Court that your client in particular has demonstrated any kind of additional security risk.” However, the judge explained that he had learned through the news media that the previous day, an inmate in San Francisco stabbed his counsel with a sharpened toothbrush. The judge then announced a new security policy, requiring handcuffing in certain circumstances. The judge ordered a bailiff to remove from appellant’s hand a pen his attorney had given him to write notes. He further described various measures he would take to ensure that jurors did not see the handcuffs, including having appellant and others remain seated when jurors entered the courtroom and removing the handcuffs before appellant testified. The judge also suggested that appellant and counsel could communicate by whispering or asking for a break to discuss matters out loud if they did not want to whisper. Counsel reiterated that he wished to communicate with appellant in writing and suggested, as an alternative security measure, that appellant be secured in leg shackles instead of handcuffs and be seated several feet away from him, giving counsel time to react if appellant became aggressive. The judge refused these requests and ordered that appellant be handcuffed. Counsel renewed his objections at the beginning of the punishment phase and requested that appellant be allowed to write with state-provided crayons, reasoning that they surely could not be considered deadly weapons, but the judge refused this accommodation as well. After the punishment phase concluded but before the jury was dismissed, the judge asked jurors if they had seen the handcuffs or noticed that the courtroom procedure of everyone rising when the jury entered changed during the trial. None of the jurors said they noticed the handcuffs or the change in standing procedure. HOLDING: Reversed and remanded. The court is not convinced beyond a reasonable doubt that unjustifiably handcuffing appellant did not impact effective communication between appellant and his attorney and played no resulting role in his conviction or punishment. That the error emanated directly from the trial court is significant to the harm analysis. The court fears that declaring this error harmless may encourage repetition of this “blatantly unconstitutional action.” The court finds the error harmful in this case. The appellant argues that he was merely present during the commission of the robbery. Despite his admission that he gave his friend the knife that was used in the robbery, he nevertheless claims he did not know that his friend had the knife and intended to use it to commit an aggravated robbery. However, viewing the evidence in the light most favorable to the verdict, the jury could have determined that, after repeatedly hassling his friend to repay a debt, appellant and his friend came upon the victim and her van in an empty parking lot, appellant gave his friend his knife to “take care of some business,” which he knew meant robbing someone to repay him, and left with his friend in the stolen van. From these facts, the jury could have reasonably concluded that appellant intentionally assisted in the commission of the robbery. The court concludes that the evidence is legally sufficient to convict appellant as a party to the offense. OPINION: Yates, J.; Hedges, Yates and Guzman, J.J. CONCURRENCE: Hedges, C.J. “Viewing the evidence in the light most favorable to the verdict, I believe that the jury could have found beyond a reasonable doubt that appellant committed the offense as a principal. “Examining the sufficiency of the evidence with regard to appellant’s conviction as a party takes into account appellant’s own self-serving testimony, intended as exonerating, and contorts it into incriminating evidence. This analysis seems to me to violate the spirit, if not the letter, of the legal sufficiency standard of review. Therefore, I respectfully concur.”

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