Hueathen Kirk Gardner v. the State of Texas

Affirmed and Memorandum Opinion filed August 22, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00355-CR

HUEATHEN KIRK GARDNER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 482nd District Court
Harris County, Texas
Trial Court Cause No. 1715276

MEMORANDUM OPINION

Appellant Hueathen Kirk Gardner was convicted of the first-degree felony
offense of arson of a habitation, knowing that it was in the limits of an
incorporated city or town or knowing that it is located on property belonging to
another. See Tex. Penal Code Ann. § 28.02(a)(2)(A), (B), (d)(2). In four issues ,
appellant argues (1) the trial court erred by denying his motion to suppress
regarding an alleged res gestae statement he made, (2) the trial court erred by
having appellant shackled during trial, (3) the associate judge was constitutionally
barred from presiding over the voir-dire proceedings; and (4) he was deprived of
an impartial jury when the associate judge read the prospective indictment during
voir dire. We affirm the judgment as challenged on appeal.

I. BACKGROUND

Appellant rented a home owned by Nguyet Hoang. Although they got along
at first, their relationship soured over time, and appellant eventually stopped
paying rent. Hoang pursued eviction proceedings, obtained an order of eviction,
and notified appellant that he had 24 hours to move out of the house. The next
day, Hoang had movers place all of appellant’s belongings on the sidewalk in
front of the house and then changed the locks.

Realizing that he had been evicted, appellant drove to a nearby gas station,
purchased two plastic gas cans with gasoline, and then returned to the house.
Although Hoang had changed the locks, appellant jumped the fence with one of the
cans of gasoline and kicked in the back door. Appellant then poured gasoline
throughout the interior of the home, ignited the gasoline with a match, and returned
to the front yard. While a concerned neighbor looked on, appellant poured gasoline
from the second gas can all over his own possessions in the yard, and set them on
fire.

While a firefighter-neighbor began spraying water on the home with a
garden hose to try to contain the fires inside and outside of the house, appellant
stood next to his truck across the street and filmed the fire with his cellphone. An
undercover police officer who was looking for appellant because of an open,
unrelated arrest warrant witnessed appellant’s behavior. Appellant drove away
from the scene, but he was stopped and arrested based on the open warrant.
Because the police officer suspected he committed arson, the officer drove
appellant back to the scene.
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Houston Fire Department Senior Arson Investigator Robert Haynes
interviewed appellant for about 15 minutes, without any Miranda warnings, then
assessed the extent of the fire damage. After speaking with several neighbors and
other officers, Haynes returned to appellant to advise him that he was going to be
charged with arson. According to Haynes, during this second interaction, when
appellant saw Hoang arrive at the scene, he blurted, “when [I] g[e]t out, if [Hoang]
still owned the house, . . . [I am] going to come back and try again.”

II. RES GESTAE STATEMENT

In his first issue, appellant argues the trial court erred in denying his motion
to suppress. More specifically, appellant argues that his comment during his
second interaction with Haynes about attempting to burn the house again was an
inadmissible res gestae statement.

A. Standard of review and applicable law

An appellate court reviews a trial court’s ruling on a motion to suppress
under the abuse-of-discretion standard and will overturn the trial court’s decision
only if it is outside the zone of reasonable disagreement. See Wexler v. State, 625
S.W.3d 162, 167 (Tex. Crim. App. 2021). An appellate court employs a bifurcated
process during this review, first evaluating the evidence pertinent to the
suppression issue in the light most favorable to the trial court’s ruling and giving
almost total deference to the trial court’s factual assessments of the circumstances
in the case, and then reviewing de novo the trial court’s application of the law to
the facts. See id.

The United States Constitution prohibits the prosecution from using a
defendant’s statements which stem from custodial interrogation unless the
prosecution demonstrates that procedural safeguards were employed to protect the

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defendant’s privilege against self-incrimination. See Miranda v. Arizona, 384 U.S.
436, 444 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim. App. 2003).
Code of Criminal Procedure article 38.22 codifies that prohibition and similarly
precludes the State’s use of a defendant’s statements obtained through custodial
interrogation absent a showing that certain procedural safeguards were
employed—namely, that the accused was warned of his rights and knowingly,
intelligently, and voluntarily waived those rights. See Tex. Code Crim. Proc. Ann.
art. 38.22.

However, article 38.22, section 5 states that “[n]othing in this article
precludes the admission of a statement made by the accused . . . that is res gestae
of the arrest or of the offense, or of a statement that does not stem from custodial
interrogation[.]” See Tex. Code Crim. Proc. Ann. art. 38.22, § 5. Three
requirements must be met before a statement may be admitted as res gestae:
(1) there must be an exciting, emotionally stimulating, or physically painful
event—i.e., the arrest or the offense itself; (2) the statement must have been made
sufficiently close in time to the occurrence that the declarant is still in the
emotional grip of the exciting or stimulating event, such that the remark is
spontaneous or impulsive; and (3) the statement must be related to the
circumstances of the event. See Graham v. State, 486 S.W.2d 92, 94 (Tex. Crim.
App. 1972).

Statements may even be admissible as res gestae of the arrest or offense
even if they are the product of custodial interrogation, provided that the officer’s
statement or inquiry is not leading or suggestive of an answer. Etheridge v. State,
903 S.W.2d 1, 15 (Tex. Crim. App. 1994); see Lewis v. State, 630 S.W.2d 285, 288
(Tex. App.—Houston [14th Dist.] 1981, no pet.) (“A careful review of past cases
indicates that the Court of Criminal Appeals has given a broad interpretation as to

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what constitutes the res gestae of an arrest. The cases seem to find as admissible
without reversible error all except direct responses to custodial questions where
Miranda warning insufficiency was found.”).

B. Analysis

Appellant argues that his comment to Haynes did not constitute a res gestae
statement because it did not meet any of the three requirements for res gestae. But
we must first determine whether Miranda requires the comment to be excluded
altogether. See Smith v. State, 507 S.W.2d 779, 781 (Tex. Crim. App. 1974) (“The
initial question is [n]ot whether the statement is res gestae, but rather, whether
Miranda requires exclusion. If Miranda does not [require] exclusion, then the next
question is whether some other rule, such as Article 38.22 . . . will require its
exclusion, or such, as res gestae, will permit its introduction.”). The record reflects
that appellant spontaneously made his comment to Haynes in response to seeing
Hoang arrive at the scene. This response was not the result of a custodial
investigation or in response to any questioning by Haynes. We therefore conclude
that Miranda does not require its exclusion. See id. at 781. We next determine if
his comment constituted admissible res gestae.

Under the first element, there must be an “exciting” or “stimulating” event.
The express statutory terms consider the stimulating event to include the offense
itself or the arrest. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5. Here, the
stimulating events consisted of appellant committing arson and then being
informed that he was being arrested and charged with arson. We conclude that the
first element is met.

For the second element, the statement must be made sufficiently close in
time to the stimulating event. Haynes testified that “shortly” after informing
appellant that he was going to be charged with arson, appellant saw Hoang and
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made the statement about “trying again” when he gets out of jail. As the trial court
noted, appellant’s statement “was in response to the complainant coming to the
scene, not questions asked at the scene. It was happening at the—near the time. . . .
[H]e just blurted it out when he saw the complainant coming.” (emphasis added).
With the statement occurring so shortly after being informed he was going to be
arrested for arson, we hold that the second element is satisfied.

Concerning the third element, appellant’s unsolicited comment clearly
related to both the arson and the arrest. Appellant conveyed his intent to burn the
house again if Hoang still owned the home after appellant was released from jail.
We hold that the third element is satisfied.

Given these circumstances, we conclude that appellant’s comment to Haynes
was admissible as res gestae. Accordingly, we cannot say the trial court abused its
discretion in denying appellant’s motion to suppress. We overrule appellant’s first
issue.

III. SHACKLING

In his second issue, appellant claims the trial court erred in ordering that he
appear in shackles during the voir-dire proceedings before the jury without
providing a particularized reason for doing so. The State agrees that the trial court
erred in so doing, but nonetheless asserts that the error was harmless.

“[S]hackling error may rise to the level of constitutional error when the
record reflects a reasonable probability that the jury was aware of the defendant’s
shackles.” Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013). After
reviewing the record, we cannot conclude there was a reasonable probability the
jury was aware of appellant’s restraints. Instead, the record shows that the trial
court took precautionary measures to conceal appellant’s shackles from the jury,

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including: (1) arranging with appellant’s counsel to have a bag placed in front of
appellant’s legs at counsel’s table; (2) removing appellant’s brightly colored socks
to avoid drawing attention to appellant’s legs; (3) conducting a “dry run” with the
trial court seated “in the location where the jury would be seeing” the proceedings
from, to personally verify that the jury would be unable to view appellant’s
shackles; and (4) removing the jury from the courtroom before and after appellant
testified, so that the jurors would not see appellant’s shackles as he walked
between counsel’s table and the witness stand. There is no indication in the record
that these precautionary measures were ineffective, or that the jury ever saw or was
aware that appellant was shackled at any time. Additionally, nothing in the record
suggests that appellant’s shackles hindered his ability to communicate with defense
counsel or the trial court, or to participate at trial. Appellant argues that it is
possible the jury heard the rattling of his chains, but as the court noted in Bell, “in
light of this record, to conclude that it is reasonably probable that the jury heard the
rattling of the chain would be purely speculative.” Id.

Having concluded there is not a reasonable probability that the jury was
aware of appellant’s shackles, any alleged harm appellant suffered is
nonconstitutional in nature, and thus we review the alleged harm for non-
constitutional error. See Tex. R. App. P. 44.2(b) (“Any other error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.”). “A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” Schmutz v. State,
440 S.W.3d 29, 39 (Tex. Crim. App. 2014). As stated above, nothing in the record
indicates the jury was even aware that appellant was shackled; precautionary
measures were taken so that the jury would not see his shackles and nobody at trial
mentioned he was wearing shackles. Also, there is no evidence that the shackles

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affected appellant’s ability to participate in the trial or communicate with his
counsel.

Accordingly, we conclude that any error was harmless. We overrule
appellant’s second issue.

IV. ASSOCIATE JUDGE’S ABILITY TO PRESIDE OVER VOIR DIRE

In his third issue, appellant argues that it violated Texas Constitution article
V, sections 7 and 8 for an associate judge to have presided over his voir-dire
proceeding, rather than a district judge, and thus, his conviction is void. See Tex.
Const. art. V, §§ 7, 8 (Tex. Official).

Article V, section 7, requires that Texas be divided into judicial districts,
with each district to be presided over by one or more duly elected judges, and it
sets forth the eligibility requirements for such district court judges. See Tex. Const.
art. V, § 7 (Tex. Official). Article V, section 8 then sets forth the jurisdiction of
district courts: “District Court jurisdiction consists of exclusive, appellate, and
original jurisdiction of all actions, proceedings, and remedies, except in cases
where exclusive, appellate, or original jurisdiction may be conferred by this
Constitution or other law on some other court, tribunal, or administrative body.”
See Tex. Const. art. V, § 8 (Tex. Official). Government Code section 54A.006
delineates various tasks that a district court may delegate to a duly appointed
associate judge, specifying that “[a]n associate judge may select a jury. Except as
provided in Subsection (b), an associate judge may not preside over a trial on the
merits, whether or not the trial is before a jury.” Tex. Gov’t Code Ann.
§ 54A.006(d). Section 54A.008 adds that “[e]xcept as limited by an order of
referral, an associate judge to whom a case is referred may . . . select a jury[.]”
Tex. Gov’t Code Ann. § 54A.008(a)(15).

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Appellant contends that Government Code sections 54A.006 and 54A.008
exceed constitutional authority by permitting associate judges to conduct voir dire.
However, nothing in the plain text of the Texas Constitution prohibits associate
judges from presiding over voir dire. See Johnson v. Tenth Jud. Dist. Ct. of
Appeals at Waco, 280 S.W.3d 866, 872 (Tex. Crim. App. 2008) (“As with
statutory construction, when we construe a provision of the Texas Constitution, we
are principally guided by the language of the provision itself[.]”). Our sister courts
have rejected similar challenges to an associate judge having presided over voir
dire. E.g., Clifton v. State, No. 01-22-00641-CR, 2023 WL 5437181, at *12 (Tex.
App.—Houston [1st Dist.] Aug. 24, 2023, pet. ref’d) (mem. op., not designated for
publication) (“Because the Texas Constitution did not bar the associate judge from
conducting voir dire in Clifton’s case, she was not disqualified from performing
this function, and thus her actions were not void.”).

Accordingly, we conclude the associate judge’s actions were not void. We
overrule appellant’s third issue.

V. INDICTMENT READ BY ASSOCIATE JUDGE

In his fourth issue, appellant argues that the associate judge who presided
over voir dire committed fundamental error by reading the indictment to the venire
panel in that proceeding. More specifically, appellant contends the associate judge
was unauthorized to read the indictment because Code of Criminal Procedure
article 36.01(a)(1) directs the prosecutor to read the indictment as part of
arraignment after jury selection. Tex. Code Crim. Proc. Ann. art. 36.01(a)(1). It is
uncontested that appellant neither objected to the associate judge’s reading the
indictment to the venire panel nor commented on the prosecutor later reading the
indictment as a part of arraignment after jury selection. Instead, appellant argues
the associate judge’s conduct constituted a Marin category-two error that did not

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require objection. See Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App.
1993). However, this court has already rejected a similar argument, observing that
“we have found no cases to support the proposition that reading the indictment
during the voir dire constitutes fundamental error.” Williams v. State,
No. 14-19-00979-CR, 2021 WL 5707411, at *7 (Tex. App.—Houston [14th Dist.]
Dec. 2, 2021, pet. ref’d) (mem. op., not designated for publication). There is
simply no evidence in the present case that the associate judge’s reading of the
indictment during voir dire denied appellant a fair and impartial jury.

Because appellant did not object on this basis and this is not a
Marin-category-two error, appellant has waived this issue. See Tex. R. App. P.
33.1(a)(1)(A). We overrule appellant’s fourth issue.

VI. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Chief Justice Christopher and Justices Spain and Poissant.
Do Not Publish —Tex. R. App. P. 47.2(b).

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