Davis v. State

• Decision Date: 18 May 2006
• Docket Number: No. 14-05-00325-CR.,14-05-00325-CR.
• Parties: Gerbrile Dwayne DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

195 S.W.3d 311

Gerbrile Dwayne DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 14-05-00325-CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 18, 2006.

COPYRIGHT MATERIAL OMITTED

Allen C. Isbell, Houston, for appellant.

Carmen Castillo Mitchell, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

Appellant Gerbrile Dwayne Davis was convicted of aggravated robbery and sentenced to twenty-seven years' imprisonment. In twelve issues, appellant challenges his conviction. Because we conclude the trial court committed reversible error by forcing appellant to wear handcuffs during the trial, we reverse and remand for a new trial.

BACKGROUND

On July 7, 2004, Moserrat Rubio parked her van in front of a water station in a grocery store parking lot and began filling her water jugs. She was then robbed at knife point, and her van was stolen. A few hours later, appellant was arrested after he was seen driving the stolen van. Police conducted a line-up, but Rubio was unable to identify appellant.

In a videotaped statement to police, appellant admitted that he was present during the crime but claimed that his friend Dustin Williams, not he, robbed Rubio. Appellant also admitted that the knife used in the robbery, which was found in the van, was his knife but claimed he loaned it to Williams "to take care of some business." However, Rubio testified that she saw only one person when she was robbed, and police could never locate Williams. At trial, Rubio identified appellant as her robber. The State offered appellant's videotaped statement into evidence, which was played in full to the jury. Appellant testified and again blamed the robbery on Williams. The jury instructions authorized the jury to find appellant guilty either as a principal or a party. The jury found appellant guilty.

On appeal, appellant raises twelve issues. The first three relate to the whether the trial judge erred by ordering that appellant be handcuffed during a portion of the trial. In issues four through eight, appellant complains the trial court erred in submitting an instruction on the law of parties and challenges the legal and factual sufficiency of the evidence to convict him either as a principal or a party. In issues nine through eleven, appellant asserts the trial court erred in denying various motions relating to Rubio's inability to identify him during the police line-up. In his final issue, appellant claims the trial court erred in allowing the prosecutor to ask appellant's opinion on the credibility of some of the State's witnesses.

HANDCUFFING APPELLANT DURING TRIAL

On the morning of the third day of trial, the trial court judge, William Harmon, 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 Judge Harmon to articulate on the record a basis for ordering handcuffs because counsel had seen no evidence that appellant presented a security risk. Judge Harmon 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, Judge Harmon 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. Judge Harmon then announced a new security policy:

The Court is of the opinion this is going to be a general change in courtroom security, where people who are accused of felony offenses who are facing, as in this case, a minimum of 15 years in prison to life in prison, are to be secured during trial. Their hands are to be secured, [and] they're not to have access to any writing materials during trial.

The Court considers those to be deadly weapons, and so this is a general plan by the court to increase the security in the courtroom while jurors are present.

Judge Harmon 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. Judge Harmon 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. Judge Harmon 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 Judge Harmon refused this accommodation as well. After the punishment phase concluded but before the jury was dismissed, Judge Harmon 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.

As the United States Supreme Court has noted, restraining a defendant in the courtroom implicates three fundamental legal principles. See Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 2013, 161 L.Ed.2d 953 (2005). First, our criminal process presumes the defendant is innocent until proven guilty, and visibly restraining the defendant infringes upon this presumption. Id. Second, a defendant has a constitutional right to counsel to help secure a meaningful defense, and physical restraints can interfere with the ability to communicate with counsel. Id. Third, the routine use of physical restraints can undermine the dignity of the judicial process. Id. Thus, as a general matter, a defendant has a right to be tried without the use of physical restraints. See Culverhouse v. State, 755 S.W.2d 856, 859 (Tex.Crim.App. 1988) ("Generally, a defendant has a right to be tried without being handcuffed."); see also Cooks v. State, 844 S.W.2d 697, 722 (Tex.Crim.App.1992) (noting that "[o]nly in rare circumstances is shackling called for").

However, the trial court has discretion to order restraints if there is a showing of a manifest need or exceptional circumstances, such as when a defendant poses a threat to himself or others. See Long v. State, 823 S.W.2d 259, 282 (Tex. Crim.App.1991); Funari v. State, 70 S.W.3d 175, 176 (Tex.App.-San Antonio 2001, pet. dism'd, untimely filed). Restraints cannot routinely be ordered based on general security concerns or the type of crime charged but must be assessed on a case-by-case basis. See Deck, 125 S.Ct. at 2011 ("[T]rial courts may not shackle defendants routinely, but only if there is a particular reason to do so."); Long, 823 S.W.2d at 283 (holding that neither the nature of the crime charged nor general concerns over courtroom security can justify restraints); Simms v. State, 127 S.W.3d 924, 927 (Tex.App.-Corpus Christi 2004, pets. ref'd) (explaining that "[t]he decision to use physical restraints must be made by the trial judge on a case-by-case basis" (internal quotation marks omitted)). Judge Harmon completely disregarded these principles. He explicitly acknowledged that appellant did not pose any additional security risk, but he nonetheless ordered that appellant be handcuffed pursuant to a new courtroom security policy. Such conduct is specifically prohibited both by the United States Supreme Court and the Court of Criminal Appeals. See Deck, 125 S.Ct. at 2011; Long, 823 S.W.2d at 283. While courtroom security is an increasingly pressing concern, routinely restraining defendants is not a permissible manner in which to address it. We conclude that Judge Harmon abused his discretion in ordering that appellant be handcuffed without finding a particular reason specific to appellant to do so. See Long, 823 S.W.2d at 283 (finding abuse of discretion in ordering restraints based on general security concerns and the nature of the crime as opposed to reasons specific to defendant); Grayson v. State, 192 S.W.3d 790, 792 (Tex.App.-Houston [1st Dist.] 2006, no pet. h.) ("We hold that by requiring appellant to be tried in shackles in the absence of any exceptional circumstances, the trial judge abused his discretion.").

Appellant claims that we should reverse without a harm analysis because this error was structural. The Supreme Court has held that a structural error is a "`defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). The Court of Criminal Appeals has explained that only federal constitutional errors can be structural and then only if the Supreme Court has labeled them so. See Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim.App.2005). The Supreme Court has most recently defined structural errors as: the total deprivation of counsel at trial, the lack of an impartial trial judge, the unlawful exclusion of members of the defendant's race from a grand jury, the denial of the right to self-representation at trial, the...