GARDNER v. STATE (2024)

Petition for discretionary review refused.

CONCURRING OPINION

In 1886, this Court adopted the longstanding common law rule that “prohibits the ‘routine shackling’ of criminal defendants at trial.” Gennusa v. State, 689 S.W.3d 320, 322 (Tex. Crim. App. 2024) (Slaughter, J., concurring) (citing Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013)); see also Rainey v. State, 20 Tex. App. 455, 472, ––– S.W. –––– (1886). Yet, the Harris County Sheriff's Office has adopted a blanket policy of shackling inmates at trial in violation of this rule.

In this case, Appellant's legs were shackled throughout his jury trial. The trial judge, “[h]aving tried cases in Harris County,” already knew “that normally the defendants are leg shackled.” Indeed, according to the bailiff: “[W]e always, at least, have leg shackles on them.” During trial, the judge, outside the jury's presence, asked Appellant to try to keep still because “we can hear the clicking” (referring to his chains). Appellant argued on direct appeal that the shackling was unconstitutional because there was no particularized need for it.

The Fourteenth Court of Appeals correctly held that: (1) the “shackling error” was non-constitutional because there is no evidence that the shackles were visible to the jury, and it was not reasonably probable that the jury heard the rattling of Appellant's chains; and (2) the error was not harmful under Rule of Appellate Procedure 44.2(b). Gardner v. State, No. 14-23-00355-CR, 2024 WL 3898192, at *3–4 (Tex. App.—Houston [14th Dist.] Aug. 22, 2024, pet. filed) (mem. op., not designated for publication). In his petition for discretionary review, Appellant contends that there was a substantial basis to conclude that the jury knew he was shackled because of the judge's comments regarding hearing the clicking. This singular comment is insufficient alone to establish a reasonable probability that the jury, in fact, heard the clicking or recognized the sound as coming from Appellant's restraints. Counsel should have asked the trial judge to individually poll the jury as to whether any member heard the clicking, and if so, what they believed it to be. But counsel did not do so. Ultimately, Appellant has not presented any persuasive argument to undermine the court of appeals’ analysis of this issue, and so I join in the Court's decision to refuse Appellant's petition for discretionary review.

However, I feel compelled to write separately to address the routine policy of shackling in Harris County, which is in conflict with this Court's precedent. I have previously written on the unjustified shackling of criminal defendants. See Gennusa, 689 S.W.3d 320 (Slaughter, J., concurring). Even though this policy comes from the Sheriff's Office, compliance by the trial court in the face of unjustified, automatic shackling practices—such as the situation that occurred here—constitutes a blatant disregard of this Court's case law on this issue. See, e.g., Ex parte Chavez, 560 S.W.3d 191, 202 (Tex. Crim. App. 2018) (“Even when shackles are not visible to the jury ․ shackling a defendant during trial is non-constitutional error in violation of the common law unless it is necessary for a particular defendant in a particular proceeding.”) (citing Bell, 415 S.W.3d at 281). Normalizing such practices needlessly infringes upon defendants’ rights and also raises the risk that constitutional error will occur in a given case.

I. The right of a criminal defendant to be unbounded by physical restraint at trial.

There are two sources that provide a criminal defendant with the right to be unbounded by physical restraint at trial: (1) the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and (2) the common law. Gennusa, 689 S.W.3d at 322 (Slaughter, J., concurring). This form of dual protection makes it clear that shackling is “a last resort.” Bell, 415 S.W.3d at 281 (quoting Deck v. Missouri, 544 U.S. 622, 628–29, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005)).

The due process clause is violated under narrower circumstances than the common law. The constitutional protection forbids using physical restraints on a criminal defendant that are visible to the jury. Deck, 544 U.S. at 629, 125 S.Ct. 2007. To comport with due process, before a criminal defendant is shackled in front of a jury, the trial court must make a particularized finding that shackling is necessary to protect an essential state interest. Id.

The common law applies more broadly than the due process clause because it forbids using physical restraints—even those that are hidden from the jury—during trial. Chavez, 560 S.W.3d at 202. Hidden restraints are “only justified when, in the trial judge's discretion, [shackling] is necessary for a particular defendant in a particular proceeding.” Bell, 415 S.W.3d at 281 (emphasis added) (citing Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992)). It requires a particularized finding and is determined on a case-by-case basis. See id. To justify the shackling of a defendant, “the record must manifest the trial judge's reasons for” doing so. Id. (first citing Cooks, 844 S.W.2d at 722; and then citing Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991)). If restraints are justified and the record details the grounds for restraint, then “the trial judge should make all efforts to prevent the jury from seeing the defendant in shackles.” Id. (citing Long, 823 S.W.2d at 282). But absent support in the record for requiring a defendant's hidden shackling, the trial court commits non-constitutional error by allowing such shackling to occur. Id. at 283.

II. The automatic shackling practices imposed by the Harris County Sheriff's Office and accepted by the trial judge conflict with this Court's precedent.

I agree with the court of appeals that the unjustified shackling of Appellant was non-constitutional error, which violated the common law. The record here does not reflect any particularized findings to justify the restraints, and instead suggests that leg shackles are routinely used in Harris County, regardless of the particular circumstances. By contrast, the record does not suggest that constitutional shackling error occurred because there is nothing to suggest that the jury was aware of Appellant's shackles.¹

Although the shackles were visually obstructed, Appellant contends that they remained audibly detectable, thereby violating his constitutional rights. In support, Appellant points to when, outside of the jury's presence, the trial judge told him that “we can hear the clicking.” The “clicking” undoubtedly refers to Appellant's leg restraints. Yet this comment alone does not provide “a substantial basis supporting a conclusion that the jury perceived [Appellant's] restraints.” Id. Without more, this passing comment by the trial judge is insufficient to “reflect[ ] a reasonable probability that the jury was aware of the defendant's shackles.” Id.

Nevertheless, both sides agree that the trial court lacked any justification for placing Appellant in shackles during his jury trial.² A policy of always shackling a defendant's legs amounts to a per se violation of the common law rule against arbitrary shackling. Here, the trial judge's precautionary measures to hide the shackles from the jury's view helped to avoid constitutional error (and the corresponding more rigorous harm standard). But this fact does not absolve the Sheriff's Office or the trial court of the duty to further ensure that the defendant's common law rights are not violated. The trial court must ensure that any shackling is justified by making particularized findings on the record in all cases (unless the reasons for shackling are otherwise readily apparent from the record). A blanket policy of allowing shackles but ensuring that they are hidden from the jury may, unfortunately, “fly under the radar” because it is difficult to meet the non-constitutional harm standard in this context, and so trial judges and attorneys may be less focused on preventing this type of error from occurring. It is for this reason that I have chosen to highlight this issue, with the hope of increasing awareness of a defendant's right to have particularized findings on the record to justify shackling, regardless of whether the jury is aware of the shackles.

III. Conclusion

The trial court committed non-constitutional error by allowing Appellant to remain unjustifiably shackled during trial. The court of appeals properly held that the non-constitutional error was not harmful under Rule of Appellate Procedure 44.2(b). Appellant has not presented any argument to undermine the court of appeals’ analysis, so I agree that the petition should be refused. Nevertheless, a policy of routinely shackling defendants without any particularized justification constitutes a plain violation of the common law. Courts should take action to ensure that both constitutional and common law rights are adequately protected in this context by questioning the justifications for shackling in all cases.

With these thoughts, I join in the Court's decision to refuse Appellant's petition for discretionary review.

FOOTNOTES

1.   As the court of appeals noted, the precautionary measures implemented by the trial court to hide Appellant's shackles from the jury included:(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.Gardner, 2024 WL 3898192, at *3.

2.   The State previously conceded that the trial court erred in ordering Appellant to be shackled. Gardner, 2024 WL 3898192, at *1, *3.