Jarvis Domonique Howard v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00325-CR
JARVIS DOMONIQUE HOWARD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2017-2056-C1
MEMORANDUM OPINION
Appellant Jarvis Domonique Howard was convicted by a jury of the offense of
unlawful possession of a firearm by a felon and sentenced to ten years’ incarceration. In
two issues, Howard challenges his conviction. We will affirm.
Discussion
A. Judicial Qualifications. In his first issue, Howard asserts that the trial court
lacked the qualifications to preside over his criminal trial. Howard did not raise this issue
in the trial court. We have previously held that the issue of a trial judge’s qualifications
must be raised in the trial court in order the preserve the issue for appeal. See Dekle v.
State, No. 10-19-00088-CR, 2020 WL 495453, at *1 (Tex. App.—Waco Jan. 29, 2020, pet.
ref’d) (mem. op.) (not designated for publication). Howard’s first issue is overruled.
B. Suppression of Statements. In his second issue, Howard asserts that the trial
court erred by admitting Howard’s un-Mirandized statements into evidence as res gestae
statements.
We review a trial judge's ruling on a motion to suppress under a bifurcated
standard of review. First, we afford almost total deference to a trial judge's
determination of historical facts. The judge is the sole trier of fact and judge
of witnesses' credibility and the weight to be given their testimony. When
findings of fact are not entered, we view the evidence in the light most
favorable to the judge's ruling and assume the judge made implicit findings
of fact that support the ruling as [long as] the record supports those
findings. Second, we review a judge's application of the law to the facts de
novo. We will sustain the judge's ruling if the record reasonably supports
that ruling and is correct on any theory of law applicable to the case.
Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016) (footnoted citations omitted); see
also Wells v. State, 611 S.W.3d 396, 405-06 (Tex. 2020).
At the suppression hearing, the State introduced the in-car video of the events
leading up to, during, and after Howard’s arrest. There is no dispute that at no time on
the video is Howard given the warnings required by Miranda or article 38.22 of the
Criminal Code. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);
TEX. CODE CRIM. PROC. ANN. art. 38.22. After reviewing the video, the trial court denied
Howard’s motion to suppress his inculpatory statements, finding that any statements
made prior to the time of Howard’s arrest, at approximately 39:08 on the video, were
admissible and that “all statements made after thirty-nine, point, zero, eight (39.08) are
Howard v. State Page 2
res gestae, were not made in response to interrogation and are admissible.” Howard does
not challenge the admissibility of any statements made prior to his arrest.
“The warnings required by Miranda and article 38.22 are intended to
safeguard a person's privilege against self-incrimination during custodial
interrogation.” Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009).
“[T]he Miranda safeguards do not exist to protect suspects from the
compulsion inherent in custody alone, nor do they protect suspects from
their own propensity to speak, absent some police conduct which
knowingly tries to take advantage of the propensity.” Jones v. State, 795
S.W.2d 171, 176 n.5 (Tex. Crim. App. 1990). A defendant bears the burden
of proving his or her statement was the product of custodial interrogation.
Gardner, 306 S.W.3d at 294.
An “interrogation” for purposes of Miranda means “(1) express
questioning and (2) ‘any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the
suspect.’” Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d
297 (1980)). When, as here, we must determine whether a set of facts
amounts to interrogation, we review the issue de novo because it is one of
law, requiring the application of legal principles to a specific set of facts.
See id.Joseph v. State, 514 S.W.3d 838, 843 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
Under article 38.22, oral statements may be admissible if they constitute statements
that are “the res gestae of the arrest or of the offense.” TEX. CODE CRIM. PROC. ANN. art.
38.22 § 5. A statement is res gestae if it is “made in response to a startling event,
spontaneously or impulsively, without time for reflection or contrivance, and such a
statement can be made in response to an inquiry.” State v. Ortiz, 346 S.W.3d 127, 137 (Tex.
App.—Amarillo 2011), aff’d 382 S.W.3d 367 (Tex. Crim. App. 2012) (quoting Williamson v.
State, 771 S.W.2d 601, 606 (Tex. App.—Dallas 1989, pet. ref’d)). Neither art. 38.22 nor
Miranda bar volunteered statements. Gaitan v. State, 533 S.W.3d 19, 29 (Tex. App.—
Howard v. State Page 3
Corpus Christi 2016, pet. ref’d); see also Daniels v. State, No. 10-18-00075-CR, 2019 WL
4721276, at *2 (Tex. App.—Waco Sept. 25, 2019, no pet.) (mem. op.) (not designated for
publication). Statements by law enforcement that are normally attendant to arrest and
custody, and “[o]ff-hand remarks that are not particularly evocative under the
circumstances do not constitute interrogation. . . .” Gaitan, 533 S.W.3d at 29 (citing Rhode
Island v. Innis, 446 U.S. 291, 303, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).
A review of the video reflects that Howard spontaneously volunteered
incriminating statements that were not coerced and were not in response to interrogation
by law enforcement. It is unclear exactly what statements Howard believes should have
been suppressed other than all statements made after he was placed under arrest.
Howard was pulled over by McLennan County Sheriff’s Office Corporal James
Wolfe for failing to stop at a stop sign. Once Wolfe turned on the lights and siren in his
patrol vehicle, Howard continued for three or four blocks before coming to a stop in front
of a relative’s house. Howard parked facing the wrong way on the street and hurriedly
left the vehicle, ignoring Wolfe’s command to stay in the car. Howard left the vehicle
running, with music loudly playing. The vehicle was not registered to Howard. At least
four people approached close to the scene of the traffic stop and began questioning the
officer’s actions. Because of the gathering people and Howard’s questionable actions,
Wolfe placed Howard in handcuffs and called for assistance. One of the bystanders
yelled for Wolfe to turn it off, referring to either the vehicle or the music. By this time,
other officers had arrived. Wolfe entered the vehicle at the driver’s door and turned off
the music and the vehicle. Wolfe told Deputy Houghton that he believed he smelled
Howard v. State Page 4
marijuana in the vehicle and asked Houghton to check. Houghton opened the front
passenger door but did not smell marijuana. Houghton shone his flashlight into the car
and saw a firearm in plain view between the driver’s seat and the center console. Wolfe
told the bystanders that there was a different situation because there was a loaded gun in
the car and that they needed to return to their house. Howard told the officers it was his
girlfriend’s gun, and she frequently leaves it in the car. Howard volunteered to Wolfe at
some point that he was a convicted felon.1 Howard was then placed under arrest. None
of the statements Howard made prior to his arrest are at issue.
At approximately the 39:15 mark on the video, Wolfe asks Howard, “you say
you’re a felon?” Howard responds, “Yes, sir.” Wolfe then tells Howard that Howard is
also in possession of a stolen firearm. More bystanders arrive on the scene, and Wolfe
tells them to return to their residence or he will have to tow the vehicle. Howard asks
Wolfe not to tow the vehicle and yells for the mother of his child to tell the officers the
gun belongs to her. Wolfe tells Howard that Howard is still in possession of the firearm
even if his girlfriend admits owning it.
At approximately the 40:55 mark on the video, Wolfe directs Howard to the back
of his patrol car and begins to explain why he stopped Howard. Howard responds, “I’ve
been shot in the face like that.” Wolfe says, “Do you want to know the whole problem
that I have with this situation?” Wolfe explains why Howard’s actions were suspicious,
1
Howard’s statements are not always clear from the video, but Wolfe testified at the suppression hearing
that Howard told him he was a convicted felon prior to the gun being discovered in his vehicle. Although
the court had already ruled on the issue regarding suppression of Howard’s statements, the testimony
continued regarding Howard’s argument that the gun was discovered as the result of an improper search.
Howard does not challenge the trial court’s ruling on the search of the vehicle.
Howard v. State Page 5
noting that Howard drove for three blocks before he stopped in front of a house, Howard
jumped out of the vehicle despite Wolfe telling him to stay in the car, and then several
people came out of the house. Wolfe continued, “You understand where I’m coming
from,” noting that Howard is a convicted felon and was driving the vehicle with a firearm
basically touching his leg. Howard responds, “I’m just trying to protect myself” and “it’s
hers.” Wolfe places Howard in his patrol car as the bystanders were getting louder and
moving closer to the scene of the traffic stop.
At approximately the 50:45 mark on the video, while on the way to the jail, Wolfe
notifies Howard that he is only being charged with felon in possession of a firearm, not
with any outstanding traffic tickets or failure to stop. Howard repeats a number of
statements regarding the firearm he has already made, such as his girlfriend always
leaves the gun in the car, he did not think to remove it, and he had been shot and needed
the gun for protection.
None of the statements made by Howard were the result of interrogation on the
part of Wolfe or any of the other officers on the scene. While Wolfe asks Howard after
his arrest, “You say you’re a felon?” this was clarification of Howard’s volunteered
statement prior to his arrest that he was a convicted felon. Wolfe’s statements to Howard
constituted an explanation of the actions taken by Howard that led to his arrest, an
explanation of the actions Wolfe took before, during, and after the traffic stop, and what
charges Wolfe was going to bring against Howard. These statements are the type that
are “normally attendant to arrest and custody” and do not constitute interrogation. See
Gaitan, 533 S.W.3d at 29.
Howard v. State Page 6
The trial court did not err in admitting Howard’s post-arrest statements as res
gestae. We overrule Howard’s second issue.
Conclusion
Having overruled both of Howard’s issues, we affirm the judgment of the trial
court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Neill, and
Justice Johnson
Affirmed
Opinion delivered and filed May 5, 2021
Do not publish
[CR25]
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