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Click here for the full text of this decision FACTS:When appellant’s daughter H.W. was approximately 5 months old, appellant was her primary caregiver from the morning until the early evening. Appellant’s wife, Ursula Wiseman, worked at a temporary job during the day. In early November 2003, appellant telephoned Ursula at work and informed her that H.W. had rolled off the couch and fallen to the floor. Appellant stated that H.W. appeared uninjured, and Ursula testified that H.W. seemed fine when Ursula returned home from work that evening. Ursula’s temporary job concluded on Monday, Nov. 10, 2003. She remained home until the subsequent Friday (Nov. 14) when she was away from home between the early morning and early evening, leaving H.W. under the sole care of appellant. When Ursula returned home at approximately 5:30 p.m., H.W. was asleep and Ursula did not sense that anything was wrong with her. At approximately 4 a.m. the following morning, Nov. 15, Ursula awoke to give H.W. her morning bottle. H.W., however, refused the bottle and was “screaming and real fussy.” This convinced Ursula that something was wrong with H.W. and she took her by taxicab to Southwest Memorial Hospital (Southwest). During the cab ride to Southwest, H.W.’s left hand and arm began moving in a jerking motion: These were symptoms of a seizure. Doctors at Southwest examined H.W., performed a CAT scan, MRI and various X-rays, and they determined that she had sustained a multiple skull fracture to her left side and a linear fracture to the back of her skull. In addition, H.W.’s brain was bleeding and swollen, she had retinal hemorrhaging and the radius bones in both her arms were fractured. At trial, various doctors testified that H.W.’s head trauma had been sustained no more than a week prior to her admission to Southwest on Nov. 15 and her arm fractures no more than two weeks prior to her admission; H.W.’s skull fractures were consistent with her skull having been struck against a hard surface, including a wall, table, or floor; and the trauma experienced by H.W. could not have been caused by her fall from the couch. Appellant, the primary caregiver for H.W. during the time the testifying doctors stated that H.W.’s injuries occurred, was charged by indictment with the felony of injury to a child. The indictment alleged that appellant intentionally and knowingly caused serious bodily injury to H.W. by striking her with or against an unknown object and by shaking her with his hand. Appellant’s case proceeded to a trial by jury. Prior to voir dire, appellant’s counsel objected on several grounds to the fact he would be shackled in front of the jury. The trial court judge responded to this objection by promising to put a box in front of appellant’s legs so jurors could not see the shackles. Asked why appellant was shackled, the judge replied that the appellant was charged with a first-degree felony and was not eligible for probation. Appellant thus remained shackled throughout his trial from voir dire through the punishment phase. On the fourth day of the trial, shortly before appellant testified in his own defense, the bailiff, outside the presence of the jury, advised appellant: “It would be my suggestion that you take your right foot and put it slightly forward of your left foot. That way it’s concealing those chains. Much better.” The jury found appellant guilty and this appeal followed. In two points of error, appellant argued that the trial court violated his due process rights under the constitutions of the United States and Texas by ordering him to be shackled for the duration of the trial and allowing prosecutorial misconduct during closing arguments over appellant’s objections. HOLDING:Reversed and remanded. For a defendant to be shackled in accordance with the U.S. Constitution, the U.S. Supreme Court and the Texas Rules of Appellate Procedure provide that: 1. The trial court must make a defendant-specific finding that a state interest justifies shackling; 2. Every reasonable step must be taken to make the shackles invisible to the jurors; and 3. A shackled defendant’s conviction must be reversed unless an appellate court determines beyond a reasonable doubt that his shackling constituted harmless error. As no findings were made that appellant was, inter alia, an escape risk or a threat to courtroom security, the court concluded that the trial court abused its discretion in ordering appellant to remain shackled for the duration of his trial. The court could not conclude from the record that appellant’s shackles were not heard or seen by the jurors and did not constrain appellant’s ability to communicate with counsel, thus affecting the jury’s assessment, and as a result it could not determine beyond a reasonable doubt that the trial court’s error in shackling appellant did not contribute to his conviction or punishment. In sum, the court held that the trial court abused its discretion in shackling appellant for the duration of his trial and harm emanated from this abuse of discretion. OPINION:Keyes, J.; Keyes, Alcala, and Bland, J.J.

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