Busby v. State

“simply ruling,” or ac- the trial court’s Appellant, BUSBY, Shane trial court’s action.”10 Jasen

quiescing] v. is, course, party, of for a possible It of Texas. The STATE preserves who time in the trial at one review, to waive or complaint for appellate 72,539. No. time.11 complaint

forfeit another Texas. Appeals Criminal of Court case, the But in the context of this word ap court of “Okay” support cannot 31, 1999. March recog well peals’ finding waiver. It is 5, 1999. May Denied Rehearing [lawyers] nized “we use crutch words us time to think of phrases give next, practice that creates an what to ask starting question

instant habit of each with, this,’ you following me ‘Let ask ”12 with, ‘I every response see.’ Here words,

“Okay” is one of those crutch not waiver.13

By holding point pre- that this review, appellate court of served for Dunn past facts and appeals extended its contradicted the well-settled law that Appellate

codified Rule of Procedure 33.1. judgment

We reverse the of the court of appeals and remand the case consider-

ation of the merits of this error. State, Skiles, (Tex.Cr.App. v. 938 S.W.2d 10. Dunn 819 S.W.2d at 525. See 1997) (prosecutor began every question with See, State, e.g., 11. 772 S.W.2d 84 James "Okay”). 1989) (review ruling (Tex.Cr.App. made out presence when side was waived defen Cf., e.g., 941 S.W.2d Howard said, objection" dant “No to offer of evidence 1996) (no (Tex.Cr.App. suggestion of waiv generally Leday v. presence jury). See "okay" three when defense counsel said er (Tex.Cr.App. 715-20 ruling); Marquez v. times after adverse 1998) (discussing defeat review doctrines that 1996) (no (Tex.Cr.App. proper objection). after defense counsel suggestion of waiver when McElhaney, W.

12. James "okay” ruling). McElhaney’s after adverse said Trial ed.1987). (2d See State v. Notebook failed properly controvert his motion to venue, hence, change he was entitled

change to a of venue as a matter of law.

In support venue, of his motion to appellant filed two alleging affidavits appellant could not obtain a fair trial County. Cherokee In response, the State Phifer, Rusk, Forrest appellant. K. filed alleging two affidavits that the affi- Cromwell, Rusk, Atty., support James H. ants in of appellant’s position Dist. Paul, Austin, credibility Matthew lacked Atty., preju- State’s were diced for State. and their means of

knowledge was support insufficient to their statements.

OPINION However, when the State’s affiants were KELLER, J., opinion delivered the placed stand, on the witness they contra- McCORMICK, P.J., in Court which dicted the assertions in their affidavits. MANSFIELD, HOLLAND, and The State’s affiants testified that did WOMACK, KEASLER, joined. and JJ. not know appellant’s one of affiants and At 1996, a trial in beginning May appel- could not testify person’s as to that credi- murder, lant was capital convicted of com- And, bility. although both the State’s 17, mitted on or about April 1995. Texas affiant, appellant’s affiants knew other 19.03(a)(7)(A).1 § Penal Code Pursuant to State’s affiants could not testify that the jury’s answers the special issues set (in, person fact, lacked credibility one of forth in Texas Code of Criminal Procedure the State’s affiants testified that per- 2(b) 2(e), §§ Article 37.071 and the trial son was trustworthy). And one of the judge sentenced to death. Arti- testified, State’s affiants contrary to state- § cle 37.071 2(g).2 Direct appeal to this affidavit, ments in his that he had in not 2(h). Court is § automatic. Article 37.071 appellant’s fact read affidavits. Appellant error, raises points eleven ten Appellant concedes that Cockrum original his brief supple- and one (Tex.Crim.App.1988), 758 S.W.2d 582-583 mental brief. We will affirm. denied, t. cer April On appellant shot Chris (1989) S.Ct. 103 L.Ed.2d 825 is di Kelley, Tennille Thompson, Brandy and rectly on and position. adverse to his Gray. died, Thompson Gray while Kel- We pres observe that the affidavits in the ley Appellant was wounded. then drove ent case language consist of that is virtual off in Kelley’s pickup truck. ap- Because ly identical to that of the affidavits in pellant challenge does not the sufficiency Moreover, Cockrum. See Id. at 582. as in evidence, of the dispense we with a more affiants, present the State’s when detailed recitation of the except facts stand, placed on the witness testified con points relevant to his of error. trary allegations to the in their affidavits. held, however, 583. We

1. Venue purpose controverting of the affidavits re four, In points of error appel- three and quired by provide Article 31.04 “is to lant the trial court erred in pleading form of which establishes that failing grant his motion ven- there is a factual dispute need of resolu Appellant ue. contends that the State tion.” Id. We held that the affidavits 19.03(a)(7)(A) § provides person that a com- 2. Unless otherwise indicated all future refer- capital mits murder when he murders "more ences to Articles refer to the version of the person”.. ."during than one the same crimi- Code of Criminal Procedure in effect at the inserted). (ellipsis nal appellant’s transaction” time of trial. affi- dispute appellant’s affiant believes that to establish that factual State’s served matter. general not credible as a ants are fact that affidavits were despite the by affiants on later contradicted that, And, given we observe subsequently stand. Id. We have witness Cockrum, a clean writing we are on holding. Cockrum’s Burks reaffirmed concerning issue. The doctrine slate this preference for of stare decisis indicates 1114, 115 rt. ce if particu maintaining consistency even 909, 130L.Ed.2d 791 Malik v. wrong. See precedent lar (Tex.Crim.App. we should Appellant contends that 1997). the doc underlying The interests Texas upon not follow Cockrum. He relies height decisis are at their trine of stare Rules of Criminal Evidence 602 interpretations legislative enact judicial that a requirement Article 31.04’s upon guid upon rely which parties ments controverting by affidavit a “cred be made attempting conform to those ance person, upon Equal Protec ible” Legis legislative enactments. “When tion Amendment. Clause Fourteenth meets, particular lature after a statute has 701, appel Rules relying upon 602 and judicially changing construed without been require lant contends those rules statute, presume Legislature we personal knowledge of the an affiant have same should con intended the construction controverting contained in a information applied be to that statute.” Ma tinue to However, specifically affidavit. we (Tex. State, 267, 891 271-272 rin v. S.W.2d personal that is not re knowledge held Hardy, v. 963 Crim.App.1994); State quired and that Rule to apply 602 does not 516, Ar (Tex.Crim.App.1997). 523 S.W.2d required affidavits Article 31.04. by the unchanged has since ticle 31.04 remained Burks, at appel 876 S.W.2d Because was in 1988 and Cockrum decided upon lant’s reliance Rule 701 is tied to his Moreover, by in 1994. reaffirmed Burks personal that is re allegation knowledge may upon well have relied our the State quired, reasoning disposes Burks determining interpretation Cockrum that his claim under rule as well. proceed how to on the venue motion. Hence, appellant’s if we even believed that claims that Appellant further necessarily followed from interpretation controverting requirement 31.04’s that a (which we language in Article 31.04 do by person be made affidavit a “credible” not), would find the interests un we that impeachment means that of an affidavit’s decisis are derlying doctrine of stare by the contents affiant on the witness case, to weighty enough, present in the renders the unusable be stand affidavits adhere to our decision Cockrum. cause the affiant is to be not credi shown make several about Finally, argues ble. We observations that First, that an affidavit as a mere treating this contention. the 31.04 affidavit false of a may requirement equal protec turns out to be be evidence denies pleading credibility but does not automati tion because State’s affidavits contro lack of change motion venue do not cally verting render a witness non-credible. Sec to ond, requirements affiant infer from his have to meet same a state’s could change a supporting a fair trial affidavits appellant’s belief that can receive arguendo county Assuming in the affiants of venue. appellant’s necessarily controverting lack means affidavits are adequate supporting must an differently, state that difference does knowledge with to their treated regard equal violation. protection receive a fair not constitute an ments that cannot upon premised re a of venue That inference could be made Because trial. to affidavits nei of whether affiant a mere failure controvert gardless the State’s suspect class against whether ther discriminates appellant’s knows affiants or State, nor denies a fundamental right, 275, the State See Marin v. 851 S.W.2d (absolute only need show rational basis for treat- (Tex.Crim.App.1993) ing the types waiver); two of affidavits differently. requirements subject not Ford, State, Burlington See Northern R. v.Co. Powell 897 S.W.2d 307 2184, 504 U.S. (Tex.Crim.App.1994)(deliberateness special (1992).3 waived). disparate L.Ed.2d 432 treat- issue cannot be previ We have ment at issue here little ously different from held that the retroactive exercise of requiring plaintiff a civil peremptory file a detailed by subject strikes State petition (i.e. but permitting civil defendant to to the procedural rules of default error file a general Requiring denial. objection). criminal is defaulted absent Fearance State, defendant’s 486, affidavits to meet more strin- 496 n. 3 gent requirements required denied, than from the t. 492 U.S. cer State’s controverting may (1989); affidavits be a 109 S.Ct. L.Ed.2d recognition that the defendant has the bur- Barnard v. venue, justify

den to a change fairly (Tex.Crim.App.1987), cert. extraordinary remedy. on the 108 S.Ct. 99 L.Ed.2d 261 hand, other merely needs to show it procedure present is Under the in the issue; contesting indeed require- parties this both perempto exercised all of the may ment simply designed be prevent ry challenges retroactively. Although this unnecessary hearings when the practice State has varies from statutory proce objection no to a change cases, More- dure capital venue. see Dowthitt v. over, the Legislature could have chosen 251 (Tex.Crim.App. 1996), require produce the State given affida- our prior precedent, we find all, simply require vits but procedure the defen- controlling the order dant to do predicate hearing. so as a for a and timing peremptory of the exercise of There is no reason to that support- challenges requirement. believe is not an absolute Hence, ing and controverting necessarily appellant any affidavits by waived error re serve the purposes questing same and hence no procedure the followed in the reason to present believe that must conform case. Point of error seven is over to requirements. the same Points of error ruled.

three and four are overruled. In point eight, appel error lant contends that he received ineffective

2. Voir dire attorney assistance of counsel when his seven, point In appellant requested error procedure and obtained the for contends that the trial court erred in per exercising peremptory challenges dis mitting the parties peremptory to exercise in point prevail cussed of error seven. To challenges at the end of voir dire —the on a claim of ineffective coun assistance of (1) procedure sel, permitted non-capital for cases.4 the defendant must show deficient (2) appellant requested procedure performance, Because the prejudice. and Strick followed, he can if only Washington, obtain relief the land v.

procedure for exercising peremptory chal S.Ct. L.Ed.2d “Judi lenges capital case is an scrutiny performance “absolute cial of counsel’s must requirement prohibition” imple highly or to be be deferential.” Id. at regardless mented the parties’ wishes. S.Ct. 2052. A defendant must overcome cases, overruling affidavits, 3. appellant’s objection capital challenges After peremptory to the In are State’s the trial court conducted questioning to be exercised after the of each hearing on the merits of the venue motion prospective juror. individual Article 35.13. ultimately determined that a required protect appellant’s venue was not to right Appellant to a fair trial. does not chal- lenge that determination. down, car, appellant patted strong presumption attorney’s that an out the May- strategy. appellant’s clothing. bulge actions were sound trial Or felt was, dinarily, presumption bulge that cannot over what berry be asked absent the record of that was bullets. appellant replied come evidence it attorney’s for his conduct. Jack subsequently reasons retrieved Mayberry (Tex. 768, 771 with clip son he found to bulge, which be Crim.App.1994). Mayberry time hand- bullets. At that offi- cuffed and waited for other case, appellant In the fails present to at the scene. Appellant cers- arrive any showing rea evidence the truck subsequently interrogated and attorney’s request for his decision sons Mayberry not have a was searched. did exercising procedure peremptories for Busby’s arrest. warrant for normally non-capital that is used cases. Moreover, recognized we have ar- Appellant first contends that he was ad non-capital procedure offers minor Amend- rested in violation of Fourth vantage designated over procedure statutory Appellant ment and Texas law. ability per cases: capital exercise May- claims arrest occurred after that an looking at the emptory challenges after berry him him handcuffed and detained Dowthitt, as a venire whole. of other officers. We pending the arrival attorney may reasonably at 251. The assume, ar- deciding, will without that an that, present believed in the this point. rest at that The record occurred advantage outweighed disadvantages Mayberry shows had cause probable abandoning procedure designated However, appellant contends arrest. capital of error eight cases. Point illegal it was arrest was because overruled. supported by a warrant. suppress

3. Motion to re The Fourth Amendment ten, points of error nine and when the quires only an arrest warrant deny- the trial court erred in arrest in the home. suspeet’s occurs motion ing suppress his evidence from 502, 506 Anderson v. allegedly an arrest and illegal search. cert. Trooper Wayne Davis

State listened while , -, - U.S. victim, only surviving Kelley, the Chris v. (1997)(citing L.Ed.2d New York 1019 questioned by police was another officer. Harris, 1640, 14, 110 109 495 U.S. S.Ct. Kelley perpetrator as Jasen (1990)). identified Appellant L.Ed.2d was 13 Kelley Busby. Busby also stated that shot high public arrested in his home but on a him and the two other victims and that way. Kelley’s

Busby away pickup drove statutory chal appellant’s As for Kelley truck truck. described his as a red arrest lenge, we find that warrantless pickup. Trooper Dodge four-wheel drive 14.04. legitimately was made under Article relayed facts Davis all of these on the article, felony/escape That known as the radio Patrolman police frequency. Jesse rule, states: Mayberry was on the contents briefed his dispatch starting

this radio before by satisfactory proof Where it is shown shift. officer, peace upon representa- to a felony a person, tion of a credible that Mayberry subsequently spotted pickup a committed, and that offender fitting He has been description. stopped truck time so that there is no escape, about to the truck asked the driver identifi- warrant, peace such officer gave Mayberry procure identi- to cation. driver warrant, ar- may, pursue without a fication that the driver was Jasen showing step rest the accused. Busby. Mayberry appellant asked to , Article 14.04. we Although App.1996), have held that cert. U.S. 520 U.S. 1556, felony/escape rule is not satisfied 117 S.Ct. 137 L.Ed.2d 704 (1997). merely by proof suspect that a travels Points of error nine and ten are another, overruled. place from one to we have also

stated that escape requirement “[t]he Experts obviously suspect previ- met where the has Dowthitt, ously fled.” 931 S.W.2d at 259 In supplemental point of error Fearance, 510). (citing one, S.W.2d appellant complains about the tx-ial Here, the police evidence available to the proceed parte court’s refusal to ex con shows that fled appellant had the scene of cerning appellant’s requests for the ap the crime in surviving pickup victim’s pointment jury of a consultant and a sub truck. surviving relayed expert. Appellant victim stance abuse appellant’s flight crime and to law enforce- that the trial court’s refusal to conduct an clearly parte ment ex Mayberry hearing product officials. had sat- violated work privilege him isfactory proof process had and denied due be appellant commit- permitted cause the was to learn felony already ted a and had State fled the scene evidence, turn, during defensive theories the adversarial That crime. was However, hearing. appellant made no re satisfactory proof appellant was about quest proceed parte ex concerning his to escape. Hence, request jury for a consultant. as also Appellant argues consultant, appellant to the failed to person, passenger, searches his of a preserve error. Texas Rule of Appellate of the truck were illegal because were Procedure 52(a)(1996)(currently Rule However, conducted without a warrant. 33.1(a)(1)). arrested, appellant validly because was person search of his proper incident drug expert, As to the abuse we Belton, to an arrest. New York v. hearing any find that the did not reveal material, S.Ct. 69 L.Ed.2d new information to the State. (1981). stolen, Because the truck was Appellant requested parte hearing in an ex standing object had no upon written motion was served Hughes motion, search of that vehicle. state. In that outlined (Tex.Crim.App.1994). desiring appointment his reasons for And appellant standing complain drug expert. has no abuse The trial court had passenger of the search of the because the and a previously appointed psychologist Fourth psychiatrist Amendment does not confer de appellant’s stand assist ing parties simply At the challenge par hearing, search a third fense. Illinois, ty. Rakas explored expert 133— whether either of the wit already appointed 58 L.Ed.2d 387 nesses possessed qualifications sufficient to serve Finally, all appellant adopts of the above drug expert. parties as a abuse The did arguments support to his contention that drug not delve into the nature of the abuse the arrest and searches violate Article I testimony appellant wished to offer at tri § 9 of the Texas But appel- Constitution. appellant’s previously-appointed al. And § lant does not I contend Article expert questioned witnesses were not provides protections different than the any testimony offer about intended to Amendment; fact, Fourth in he contends or about other matter that could be any provisions that the constitutional are iden- product. Supplemental as work classified Hence, tical in all material hav- aspects. point of error one is overruled. ing resolved his Fourth Amendment claims, five, separately point appellant we need not address his In of error contends in denying state constitutional claims. Ramos v. that the trial court erred his See (Tex.Crim. jury of a con- request appointment 362 n. 5 for the of he had six, training, course his point during In of he contends the sultant. error his folks that denying the trial court in to meet “a lot of opportunity erred an abusers,” request appointment replied, for the of a substance Self substance were expert. ‘Tes, sir, fairly in epidemic problem abuse it’s a And, judge trial area.” when the my Due of the The Process Clause some doctor without asked if the was “not an ex requires Fourteenth Amendment past?”, your training years’ in in expertise indigent to be an pert appointed witness it, yes, replied, degree “Some Dr. Self appointment expert if the defendant the sir, fairly requisite.” Dr. did it’s a Self necessary provide “to defendant] [the knowledge testify possessed that he less his present with the basic tools to defense than a who expertise person would and system.” Rey our within adversarial drug in specializes abuse. (Tex.Crim.App.1995)(citing Ake v. Okla the appellant In motion outlined his homa, 105 S.Ct. testify drug expert a need for abuse (1985)). However, L.Ed.2d 53 the State ability Miranda5 about: understand defen “purchase indigent need not for an know- whether defendant warnings, on all the that his wealthier dant assistance waived intelligently, voluntarily and ingly, Ake, might counterparts buy.” Id.(quoting capacity to form rights, his defendant’s 1087). key 470 U.S. at intent, and criminal the effect substance a question appears to whether there is be of deliberate- special abuse on the issues high risk of an absent inaccurate verdict ness, dangerousness, mitiga- future appointment expert. requested trial court tion. conclude that We reasonably Dr. Self found that could drug as a adequately appellant assist could jury We a consul conclude that issues, with to those expert regard abuse tant is not a “basic” the defense. tool of hence, appointment of an addition- attorney’s Selecting jury a part an expert unnecessary. drug abuse al jury-selection Although stock-in-trade. five Points of error and six are overruled. expert’s assistance doubt be would no helpful nearly such assis every eligibility Parole luxury, necessity.

tance is not a two, expert, As for the we of error drug abuse refusing court psychiatrist appointed find that that the trial erred qualified informing instruction appel was well to assist submit an eligible for testify expert. lant and would become drug abuse when life He cites the psychiatrist was Dr. David with a sentence. question parole psychiatrist, necessarily Amendments Eighth Self. As he was and Fourteenth Constitution, I Moreover, Article a medical doctor. Dr. Self was States the United Constitution, §§ 19 of the Hospi the clinical director of Rusk State 13 and Texas tal, hospital Depart Equal within Texas and the Protection Clause ment Health Mental Retardation. Amendment United Fourteenth director, Primarily, he relies clinical Constitution. responsible As he was States At Sim psychiatrists hospital. upon Supreme all of the at the Court decision Carolina, hearing, psychi Self that the v. South testified mons (1994). 2187, 129 133 We frequently atric staff dealt with individuals S.Ct. L.Ed.2d contentions repeatedly had And decided these problems. who substance abuse adversely appellant’s position. Colburn background Dr. included Selfs educational (Tex. State, 511, 516-517 in the abuse. v. 966 S.W.2d training area of substance State, if, 910 Curry v. Crim.App.1998); the trial asked Dr. Self judge When 436, 1602, (1966). Arizona, 694 86 S.Ct. 16 L.Ed.2d v. U.S. 5. Miranda 384 272 490, 266, He (Tex.Crim.App.1995). (Tex.Crim.App.1997).

S.W.2d 497 274 con Point of error two is overruled. mitigation tends that the issue’s failure to mitigating aggra enumerate a list of and Constitutionality vating prevents meaningful appel factors penalty the death rejected late review. that claim in We one, State, 92, appellant provides error v. 934 107 Green S.W.2d why denied, , a laundry list of contentions on t. U.S. 520 cer 1200, 1561, penalty current death scheme is unconsti U.S. 117 137 L.Ed.2d 707 S.Ct. (1997). tutional. All of these contentions have complains mitigation He that the adversely position. been decided to his He issue is unconstitutional because it special complains “probability” the term in limits factors to those that evi mitigating dangerousness special the future issue is reject dence moral We blameworthiness.8 rejected not defined.6 We that claim in King, ed that claim 953 S.W.2d at 274. State, 524, Camacho v. finally, 864 S.W.2d 536 And contends that the failure to he denied, (or (Tex.Crim.App.1993), cert. 510 jury hung U.S. inform a that a holdout vote 1215, 1339, 127 L.Ed.2d 687 jury) imposition S.Ct. in the automatic results (1994). mitigation spe He claims that the Eighth a life sentence violates impermissibly cial issue7 the burden shifts Fourteenth Amendments to United on proof mitigating rejected circumstances. We States Constitution.9 We State, rejected 646, that claim in Matchett v. Eldridge claim in v. 935 (Tex.Crim.App.1996), S.W.2d (Tex.Crim.App.1996). Point of error cert. U.S. S.Ct. one is overruled. argues, 138 L.Ed.2d 994 He judgment of the trial court is af- Arizona, relying upon v. Walton firmed. 111 L.Ed.2d 511

(1990), that the mitigation special issue JOHNSON, concurring J. delivered a proof impermissibly shifts the burden of MEYERS, PRICE, opinion, which aggravating reject on circumstances. We joined. JJ. ed that claim in Williams (Tex.Crim.App.1996). He JOHNSON, J., concurring delivered a un mitigation issue is PRICE, opinion which MEYERS and open-ended constitutional because the JJ., joined. gives unstructured nature of the issue rejected the Court jury judgment unfettered discretion. We I concur King that claim in that the trial court did not abuse its discre- (f) jury proba- charge The court that in 6. That issue asks: "whether there is a shall answering under Sub- bility that the defendant would commit crimi- the issue submitted article, (e) jury: nal acts of violence that would constitute a section of this continuing society.” threat to Article 37.071 (4) 2(b)(1). mitigating evidence to be § shall consider might regard juror as re- evidence that a 7. That issue asks: ducing moral blameworthi- the defendant’s Whether, taking into consideration all of ness. evidence, 2(f)(4). including § the circumstances Article 37.071 offense, of the the defendant’s moral char- personal background, and the provides: acter and 9.The statute defendant, culpability there moral court, attorney representing the mitigating or a sufficient circumstance cir- state, defendant, defendant's or the that a cumstances to warrant sentence may pro- juror not inform the or a counsel imprisonment life rather than a death sen- juror failure of the spective of the effect of a imposed. tence be agree issues submitted under on 2(e). § Article 37.071 (c) (e) of article. Subsection or this sentence). (last § 2 provides: 8. The statute Article 37.071 a motion for denying change judge, I write is sufficient to defeat in of venue. tion firmly that emphasize holding is at change of venue.” Cockrum 583-84. in the words of rooted the statute.1 agreement prior in with the Cockrum majority bases its decision on Cockrum cases, controverting held evi- which that 758 S.W.2d 577 fact, is, an means in attack on the of dence 1072, 109 rt. ce direct, although in but it knowledge also (1989), states 103 L.Ed.2d that of attack acknowledged the standard affiants, their that the state’s because of credibility through personal knowledge on personal belief that could receive appellant “In impractical settings. to- modern “in County, a trial in could fair Cherokee it is sufficient day’s settings, more urban appel belief fer from ... that [their] merely present controvert- State necessarily lant’s affiants must lack ade ing concerning potential evidence a quate regard of with knowledge means no longer fair trial. It reasonable to that cannot re their statements compurgators the State find who expect Ante, ceive a fair trial.” at 267. The Cock knowledge actual of defendant’s have adopted reasoning rum court in Lund compurgators and their basis for knowl- strom v. Id. at 583.3 the attack edge” While on (Tex.Crim.App.1987)(opinion reh’g).2 on may of a credibility compurgator court state The Lundstrom stated that the by appropriate been eroded time as an successfully “may by controvert means of ’ an determining prejudice, measure of at- a general ‘credibility denial of or means knowledge, directly tack on the knowledge’ ‘means of the defendant’s indirectly, is still measure. or a valid compurgators, or it instant may, as in the case, generally deny that there exists ‘so very The facts Cockrum are similar great prejudice against’ the defendant or Cockrum, to the facts here. the state’s a ‘dangerous the de against’ combination newspapermen. affiants were both local ‘he fair expect fendant so that cannot Cockrum, They 758 S.W.2d at 582. both ” points trial.’ out Lundstrom facially signed form affidavits which satis- text of the that the statute has remained fied Tex.Code Proc. art. 31.04. Id. CRIM. essentially unchanged original since its During the the state’s affiants hearing, passage early as as 1888 that they appel- that not know admitted did said, preju “To this Court show that such say ap- lant’s affiants and could not that exist manifestly dice did not tends most pellant’s “prejudiced affiants were said that strongly prove they possess did not knowledge and their means of Defendant means of truth of ascertaining correct justify not support are sufficient to matter.’’Meuly Tex.App. affiants. Id. While the statements” S.W. The Cockrum affidavits, effectively they disavowing their Lundstrom, the holding Court said of appel- also testified believed “By implication, holding necessarily could receive fair trial. Id. at 584. lant proposition stands for that evidence appellant’s which indicates that an can re Cross-examination of affiants trial, if by validity ceive a fair believed the trial some doubt on the of those “cast May pellant alleging 1. Article 31.04 Motion Be Controverted. Lundstrom filed five affidavits credibility persons making affidavit The for inability to obtain a fair trial. The State filed venue, or their of knowl- means alleging a motion could receive edge, may by be attacked of a the affidavit supported with fair trial and the motion five person. The shall credible issue thus formed affidavits of its own. granted by judge, be tried and the motion refused, the law and facts shall warrant. or knowledge the defendant’s com- 3.Personal art. 31.04. Crim. Proc. Tex.Code language required by purgators is rehearing, majority adopted the dis- 2. On art. 31.04. senting Ap- opinion original on submission. The offered opinions.” witnesses’ Id. state HOWLAND, Appellant, newspaper

actual articles as exhibits. Id. Edward Gene hearing change on We noted that dire, “giving venue was held after voir judge

trial an additional barometer of Texas. STATE of community Citing climate.” Lund- Nos. 0788-98 to 0791-98. strom, longer we held that it no reason- require affiants to able to the state find Appeals Court of Criminal of Texas. directly challenge credibility of other March today’s settings, affiants: “In urban more it merely is sufficient the State to

present controverting concerning evidence a fair trial. It no potential

longer expect reasonable to the State to compurgators

find who have actual knowl- edge compurgators of a defendant’s knowledge.” their basis for Id. at 583. that, say went on to in such Court circumstances, the trial court did not by denying change abuse its discretion of venue. Id. at 584.

In this the state’s form affidavits facially satisfied Tex.Code CRiM.Proc. Art. newspaper

31.04. The state offered local hearing articles as exhibits. There was a change on of venue at which the state’s affiants, both local law enforcement offi-

cers, affi- disavowed their affidavits. Each testify

ant went on to that he had lived capital county prior at the time of two cases, impartial murder that a fair and despite had been seated each case and that in pretrial publicity, ap- intense pellant’s publicity, public case the levels of

concern, signif- interest all public were icantly capital lower than for the other that, in opinion,

cases. Both testified their trial in Cher- appellant could receive fair (S.F. 206-231). vol.XV, County okee Cockrmn, Lundstrom and Under controverting ev- presented state sufficient a rational finder of fact to permit idence no determine that venue necessary. showing There is no of abuse

of discretion.

Case Details

Case Name: Busby v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 31, 1999

Citation: 990 S.W.2d 263

Docket Number: 72,539

Court Abbreviation: Tex. Crim. App.