Faulder v. State

FAULDER, Joseph Stanley Appellant, Texas, Appellee. STATE

No. 69077. Texas, Appeals

Court Criminal

En Banc.

Sept. 1987. Solomon,Marshall, appel-

Vernard G. lant. Beekworth, Atty., R.

Carter Dist. Odis Hill, Prosecutor, Sp. Longview, Phil Burle- son, Prosecutor, Dallas, Hut- Sp. Robert tash, Austin, Atty., State’s for State. OPINION TEAGUE, Judge.

Joseph Stanley Faulder, appellant, was committing by jury of the mur- convicted of Phillips der Inez while the course committing attempting to commit felony aggravated robbery. Af- offense of special issues ter the answered the judge it in the submitted to affirmative, provisions of 37.- see the Art. 071, V.A.C.C.P., assessed appellant’s punishment at death. To first better understand error, "The Trial Court erred by denying Appellant’s Special Plea in Jeopardy,” Bar and we find it Former give history appel- necessary a brief lant’s case. S.W.2d 630

In Faulder (Tex.Cr.App.1980), majority Court and sen- appellant’s conviction reversed appel- it found that tence of death after confession, which was extrajudicial lant’s ob- at his trial over into evidence admitted violation jection, was obtained constitutional federal Fifth Amendment Thereafter, State, through its rights. attorney, filed a motion district local of reversal stay this Court’s mandate might petition the United order that Supreme for writ of certiorari. States Court for writ Appellant application filed an from State prohibition prevent the majority of this seeking A such review. ment, Hill, had concluded that there Moulton Court held in Faulder v. “Art. Sec. safe and convinced his (Tex.Cr.App.1981), money prohibit however, does not al- parties, the Texas Constitution of this. cohorts seeking of our deci- review out the though they [the State] went and “checked” application sion in this case for writ residence, attempt at that time did not Supreme Court of the Unit- certioari Later, how- burglarize Phillips’ residence. States,” (515), ed and denied ever, Me entered into a appellant and Cann prohibition. application for writ of While wrongs conspiracy commit criminal new to pending rehearing on cause be- was Phillips’ to resi- thereafter returned and Court, petition the State’s for writ fore entry, gained but soon discover- dence and Supreme of certiorari was denied the safe. money no the ed that there was Faulder, Court. See Texas U.S. proceeded anything steal Appellant then to (1980). There- 101 S.Ct. 66 L.Ed.2d value, might includ- have in the house that after, overruled majority of this Court appellant wedding ring. After ing Phillips’ rehearing, with four appellant’s motion for beat, Phillips, he and up, and stabbed tied for judges voting deny application to the the residence. The next Me Cann then left prohibition ground the of mootness. on maid, morning, Phillips’ when she went to sought retry appellant The State Phillips’ body Phillips, found bound awaken Gregg County, county where large gagged tape, with with a butcher and However, the trial court offense occurred. upper from chest. protruding knife her granted judge appellant’s motion for police notified. The knife wound were change of venue and transferred cause nearly to the was to have extended shown Angelina again County where it was of Phillips’ body. The back backbone of appellant again retried and convicted been Phillips’ skull shown have assessed the death sentence. He and now instrument, probably by a blunt crushed appeals conviction and sentence to this blackjack. injury was shown to Either Court. caused Phil- have been sufficient have This time will affirm con- we Appellant’s to Phil- lips’ death. connection and viction sentence death. through lips’ primarily was shown death ap- Moulton, Hughes, Appellant challenge testimony does not in this and Me sufficiency peal the either Cann, present evidence when who was Cann. Me guilt punishment his or as to Phillips to appellant beat and stabbed unnecessary It is was assessed.1 therefore course, death, was, “star” State’s case, us to detail facts either witness. Nevertheless, punishment. on or evi- Appellant presented no witnesses following summary will set out brief At stage of the trial. dence at either presented the facts the case that were trial, State punishment stage of the appellant's guilt punishment as to psychiatrists from two presented evidence death. appellant an ex- who testified presented The evidence at trial either regard no danger society, treme Moulton, reflects or indicates that James again likely life, very kill human and would previously resi- done work at the who given opportunity. if deceased, Phillips, of Inez who dence counsel, through presents Appellant, elderly widow who lived was then an twenty-six grounds of error in brief that Gladewater, Doyle Hughes, Linda has February was filed on Cann, initially “Stormy” appellant Me supplemented since been amended apparent gain conspiracy entered into Appellant he is asserts that that date. in- Phillips’ into residence with entry (1) spe- his new trial because entitled to a into a floor safe that Moulton tent to break bar, plea in on the cial kept her Phillips inside of believed that prohibited Clauses Jeopardy upon prior employ- his Double residence. Based appeal. 1. did in his former Nor improper, murder, retrying capital from him for must be considered decid State Also see Lucas v. ing

should have been sustained the trial that issue.” (2) judge (Tex.Cr.App.1986), judge; reversibly the trial erred and the 721 S.W.2d 315 thereof; unnecessarily limiting his page voir dire exam- discussion found Gregg v. ination; (3) (Tex.Cr. judge reversibly the trial erred 667 S.W.2d granting Schmidt v. in not his motion for of App.1984); (4) Angelina County; Collins venue (Tex.Cr.App.1983); grounds twelve of error claims (Tex.Cr.App.1980). The er 602 S.W.2d 537 judge reversibly in ei- erred former trial ror that occurred sustaining challenges ther not for cause error”, “insufficiency and not was “trial prospective jurors as to certain named or in error”, that the trial evidence sustaining challenge for the State’s cause erred, prior opin in our for reasons stated prospective juror. as to one ion, supra, by admitting into evidence objection appellant’s extrajudicial con over Finding appellant’s grounds that none of Scott, United States In 437 fession. error, of error rise to the level of reversible 90-91, 2187, 2193-2194, 82, U.S. 98 S.Ct. expressly each is overruled. (1978), Supreme of L.Ed.2d 65 the Court Appellant ground asserts in his first the United States held that success “[t]he of error that “The Trial erred Court conviction, appeal judgment of a on ful denying Special his Plea in Bar and Former any ground insufficiency other than the Jeopardy.” Appellant argues under his support [citing the verdict the evidence ground that was of error that the evidence States, 1, Burks v. United U.S. trial, supra, at his former see adduced 2141, (1978)], poses no S.Ct. 57 L.Ed.2d guilt. previ insufficient to establish his As prosecution on the same bar to further out, ously pointed appellant’s ap former charge.” Appellant does not maintain in peal, supra, challenge the see he did not this cause that all ground his of error sufficiency guilt. of the evidence as to his presented at his first the that was evidence Thus, he now makes a collateral attack on trial, proper improper, insuf both sufficiency the of the evidence that was support ficient his conviction. There However, adduced at his former trial. this fore, ground error is overruled. his first permissible under decisions. is this Court’s Rathmell, parte See Ex 33, 34 717 S.W.2d in his second Appellant asserts Robinson, parte Ex (Tex.Cr.App.1986); ground of error that “The Trial Court erred (Tex.Cr.App.1982). Also 641 S.W.2d 552 unnecessarily limiting Voir Dire [his] States, Abney v. United 651, see U.S. examination, thereby denying effec [him] (1977). 97 S.Ct. 52 L.Ed.2d 651 disagree. of counsel.” We tive assistance Appellant’s argument sole under this out, previously pointed after this As if ex- ground of error is that this Court convic appellant’s former Court reversed erroneously admitted confession cludes tion, to the trial the cause was remanded presented at his from the facts that were Thereafter, pursuant for a new trial. court presented former trial then evidence venue appellant’s motion held to be insuffi- his former trial should be trans Gregg County, the cause was from cient. County. On June Angelina ferred to began for the second jury selection rule long This Court has adhered 14, 1981, day, previous June trial. On challenge to the sufficien judging that in “Flag Day” this Sunday, which was evidence, all cy of the evidence newspaper, year, the local country for that in the admissible and which includes both News, The an article published evidence, considered. will be admissible Lufkin placed said upcoming trial and (Tex.Cr. See Dunn about appears to picture of what next to a page article the cases cited on App.1986), and flag the United States partial pause to be a stated: “We where this Court 14” stated “FLAG DAY JUNE deciding sufficiency of words point out that proper opin to this evidence, all attach the article evidence, We both thereon. of the article. How- “Appendix Approximately memory as A”. of the details ion 75% demonstrate, venirepersons ever, was not the summoned had read as we shall this Contrary part of all or this article. rule im- an iron clad contention, the it ob State’s record makes posed. do find that the instruction viously greatly clear to us that this article precluded prohibited ap- unnecessarily or attorney concerned trial as to ascertaining pellant’s from wheth- counsel might effect it have on his client what might er have affect- article Ange receiving fair juror’s on any prospective ed views County. lina appellant, guilt should that or innocence of person jury. on be selected 30th, appellant’s On June counsel filed a venue, change of motion for to transfer the upon Based what counsel ar- County. Angelina This motion cause from error, gues under his second prospective juror was filed after the 99th argument he what stated oral before parties. had examined been Court, complain- is we find that counsel not ei- record reflects that counsel asking ing prevented that was explored given fully oppor- ther juror read the prospective whether tunity fully explore previous with the article, A”, “Appendix venirepersons knowledge their of the arti- asking might the article whether effect, any, might if cle what have have caused him to form some sort of they them event were chosen as but, opinjon appellant, jurors in this cause. The motion was heard instead, arguing if a July by and overruled on 2nd venireperson although he stated that Appellant’s judge. at the motion evidence the not read article and could remember hearing only newspaper consisted arti- any article, details of the the trial court’s transcription cles and a radio a broad- prevented referring him from instruction yet cast. to find in the record We have attempt statements from the article any where it was ever demonstrated that venireperson’s “jog” refresh the or juror he testified that or she memory. heard the broadcast. by judge The instruction the oc- The record reflects that after the voir curred after the voir dire examination of forty-third prospec- of the examination Kendrick, prospective juror Kendrick. Sue Kendrick, juror, tive Sue the trial court preferred who testified that she instructed counsel as follows: honor, Sue, request called which we will right, “All let the record reflect I do in- prospective juror number 43. After counsel, struct Mr. Solomon [counsel] attorneys prosecuting one of the asked Sue Defendant, not allowed to respond- appellant, if she had heard of she by jurors’ memory telling them refresh “No, newspaper other ed: not than may He them what is Article. ask ‘Appendix testified Sue account [see A’].” remember, they may ask about what reading newspaper article of the that her forth, they opinion, them if formed and so opinion her form an did not cause just always, like ok?” the state of Given appellant’s guilt or innocence. Counsel record, find this did this instruction questioned her Sue about also inquir- from restrict counsel newspaper When having article. read ing venireperson she any whether he or the arti- she remembered about asked what and, so, newspaper if had read article cle, it “rather counsel that was Sue told effect, her, any, him if it had on what The I not remember. garbled facts do ... simply asking from but restricted counsel names, only Sue testi- one two.” venireperson, that he had who stated however, fied, she remembered article, any recall read the but did not had been stating the cause article, article state- of the whether the details County Angeli- Gregg article, transferred within the ments contained referred to County; na that the article venireperson counsel wanted to make the Judge 1975; referred to Jus- of, year that it venireperson’s aware refreshed aside, I tice; paying “I don’t know. hate to and that someone was to have she stated: time, given appellant prosecuted. Sue further testified At after Sue had be—” this im- “any answer, not formed factual incomplete that she had her and without further of the case” pressions her, ... about facts questioning appellant’s counsel stated having result of her read the article. as a completed his and chal- that he had bill time, questioning appel- for some After Sue lenged for cause. The trial over- Sue newspaper returned to the lant’s counsel Thereafter, challenge. prose- ruled his again questioning. Sue told article in his cuting attorney questioned further Sue. any remember him that she did “not eventually testified that she did not Sue Sue testified particulars the article].” [of why reason she could be a know newspaper “the she did not remember if impartial juror fair and to both sides she stating that the defendant had been article accept- juror. The State was selected as capital murder for this offense convicted of Appellant’s counsel then used a ed Sue. given penalty”. and had been death peremptory strike on Sue. story “the stated that When asked whether reading of We find that a total Sue’s voir reversed because the defend- the case was clear, or should dire examination makes allegedly given ant had a confession if anyone, it clear to she had make offense”, responded: you Sue “Now in this cause she been selected as it, yes, mentioned sir.” have rendered a fair would Appellant’s ques- counsel thereafter upon appellant’s guilt, based verdict on knowledge her of a con- tioned Sue about newspaper and not on the evidence adduced defendant, questioning fession but had read. Sue was not article that she refer to subject counsel did not Sue on whether, from expressly asked counsel given appellant having previously a confes- article, reading she had way sion, responded general in a and she as to formed a conclusion person giving subject of an accused so, whether, and, in her if or innocence thereafter asked a confession. Counsel her opinion, conclusion would influence Sue, again referring to the arti- 35.16(a)(10), Article V.A.C. verdict. See you any type form of immediate cle: “[D]id C.P., part in that if a venire- provides immediate reaction to that response ... or he has formed a conclu- person states that got up there you whenever information guilt or innocence of the sion as to the and real- [presumably the witness chair] him in his as influence defendant would talking you ized that was the case were verdict, dis- finding a he shall be action in Q: Did it reading about? A: Yes. about interrogation by charged further without any way point you in time cause at that Furthermore, court. party or the either consider that form or fashion to or complain on appellant’s does not counsel charged guilty person with that crime judge’s refusal to appeal the trial about time, one of the of that crime?” At this Giv- grant challenge for cause of Sue. his objected objection his prosecutors complained the trial court’s en the fact that Thereafter, appellant’s counsel sustained. after the until did not exist of instruction his infor- purposes questioned Sue had been com- examination of Sue voir dire that exception. Sue testified at mal bill objection now complaint or pleted, not reading of the article did time that her his comport with urged appeal does not on any any conclusion or her to form cause compiled the cases objection at trial. See influence opinion any way “in that would concurring and Presiding Judge Onion’s was select- in this case she verdict [if [her] in Tallant dissenting opinionthat was filed Sue testified juror in this ed as cause].” State, (Tex.Cr.App.1987); S.W.2d was not appellant’s if confession that even Judge Me compiled the cases also see evidence, into it would “enter admitted into filed dissenting opinion that Cormick’s Although Sue somewhat.” decision] [her case. in the same hard to set aside that it would be testified had testi- only after Sue confession, Although it was when information about the chai- gave the judge the trial “honestly” set it fied that whether she could asked case, instruction, that the voir is im- the defendant’s and thus she not about lenged subject must never the trial examination on the complaint in his about plicated instruction, ap- end, permitted nor does counsel should be judge’s restrictive judge’s rag point re- to pellant complain about trial twist the wash to challenge attempt his for cause as to the veni- to sustain shreds in his refresh fusal Nevertheless, Sue, gone into memory. we have nevertheless to sub- reperson’s regarding testimony great suggests, Sue’s be- or judge detail the trial scribe what representative law, that it is advocates, cause we find is the we believe would arguing is under appellant’s by counsel what discretion always amount an abuse of error, i.e., either im- his second overly restricting examination. the voir dire plicitly expressly, that but for above venireper- probing of the Just how much gave, he judge trial would instruction the mind, attempt his in an to refresh son’s questioned prospective jurors James have memory, must first be permitted should Powers, Banks, Arnold, F. Joy A. Alvin is by judge, the trial whose decision decided Fait, Jordan, Bates, Louise Emmit James subject appellate review court Sallas, Joyce Collins, Me M. Lillian Maudie In of discretion standard. under abuse Quilkin, and in and Fred Laake detail instance, given this this the record of way he conducted similar fashion cause, not judge we find that the trial did voir of Sue and what dire examination unnecessarily restrict counsel’s questioned about on his informal bill of Sue subject dire examination voir her recollection of the exceptions about newspaper article. article, “Ap- newspaper contents emphasize does not A”, pendix refresh in order to their memo- appeal judge assert on the trial they actually as to what recalled read- ries challenge by overruling his for cause erred ing. Sue, nor does he claim that the judge The record reflects restricting ex- his voir dire erred cause if a stated into record that of Sue. This understandable amination prospective juror stated that he she reflects that the above because the record the case read article about existence until instruction did come into also stated that he or could not she Thus, Sue had testified. Sue is after article, recall of the details of the complaint implicated truly enough had stated ground of error. set out in his second per- counsel would not be however, argues that he “was Appellant, juror’s attempt mitted to refresh venirepersons ad- to strike all forced memory by calling juror’s attention story.” reading mitted specific certain details that contained were record, however, support appel- does not article. This statement did be- not argu- support of statement. In lant’s rule, come an clad iron however. ment, us the voir dire appellant refers agree judge cannot the trial with prospective juror Emmitt examination is a correct be- this statement of law Jordan, carefully examined. we have still surrounds cause the unknown what initially reflects that Jordan The record recall, memory re- might memory cause prosecuting attorneys that told one of freshment, “Memory is memory itself. and article, he had read the newspaper selective, capable subtly imperfect, and A”, “Appendix also he but stated that blocking filling in recall out or fabricated any opinion did form (called hyp- done under confabulation when reading a result of or innocence as guilt nosis)”. Goodenough, “Hypnosis in a article; set whatever that he could aside 30, 12, Trance”, Bar Vol. No. Federal strictly upon case “try read and this However, disagree- News and Journal. courtroom”; he heard this certainly what ing judge, we do not with the trial improper be that “it would he understood prospective juror a states hold when upon what anyone to be convicted newspaper has a he or she read article newspaper.” might read a radio or television broadcast someone or heard a counsel, sought, though by way of an informal questioned by appellant’s even When Jordan, not understand exception, who was “a little bit hard hear- we do how bill ing”, that he had not read all of a in his and stated have made difference would article, replied: “All I can remem- making process of whether decision it that he—I can’t even remember ber said peremptory strike on Jordan. to use a Only thing I remember the man’s name. However, agree do with Phillips I it was a Mrs. didn’t about established, it is well and al counsel that give any thought.” After counsel told right unecessary repeat, that the most newspaper “I had to Jordan that think the attorney question or his an accused being you the case moved. Do do with freely broadly is a State venireperson anything about where it was remember right that ensures that coun constitutional from, Lufkin, why coming it’s here what intelligently exercise sel or his client can happened Longview and Luf- has between peremptory chal the client’s allocated you any- kin the case? Do remember with unnecessarily lenges, and should never be line?”, along Jordan told coun- thing See, example, limited or restricted. “No, only thing I remember about it I sel: (Tex. State, 703 S.W.2d Smith Longview coming from know the case was State, Cr.App.1985); Adams v. 577 S.W.2d somewhere, I don’t remember read- but (Tex.Cr.App.1979), rev’d on other counsel, ing the reason.” When asked Texas, 448 U.S. grounds, Adams v. Jordan, you anything, remember Mr. “Do (1980), on re 65 L.Ed.2d 581 S.Ct. happened has in this case? ... about what mand, see Adams v. S.W.2d case?”, respond- history of the Jordan (Tex.Cr.App.1981); c Manus M No, Well, you I told ed: “No I don’t ... ... (Tex.Cr.App.1980). S.W.2d 505 I it because about all I remember about article.” Jordan also didn’t read the whole Although the accused or his counsel that as far as he was con- told counsel great questioning given latitude must be not have effect cerned the article did venirepersons, the State constitutional judging appellant’s on him and that in right right constitutional without is not a if I had not read that or innocence “it’s as restrictions, as the trial any limitations or one newspaper article.” Jordan later told authority impose is vested with the attorneys judg- that in prosecuting on the accused’s ex reasonable restrictions guilt or innocence he could ing appellant’s examination, of his but ercise voir might have read anything set aside [dispatching court salutary “this result After the article. State expedition] promptness business Jordan, accepted appellant’s counsel used deny risk of must never attained at the perfected peremptory strike. Counsel right.” ing party on trial a substantial to a regarding what Jordan exceptions a bill of De La Rosa v. article. remembered about (Tex.Cr.App.1967),quoting Carter v. exception reflects (1925). The informal bill of 247, 272 S.W. 477 100 Tex.Cr.R. he did not remem- testified that that Jordan Thus, of control some sort without mentioning anything about examination, ber the article judge on the voir dire convicted; having previously been end and might never voir dire examination confession; pre- or that about Any restriction might never start. the trial ap- had been reversed vious conviction however, imposed by judge, that is peal. of discretion always subject to the abuse is See, example, of review. standard counsel then stated Appellant’s State, 643; supra, Manus at Mc v. Smith permitted judge that had he been trial State, State, supra; v. 608 S.W.2d Clark v. him that he asked questions the ask Jordan State, su (Tex.Cr.App.1980);Adams v. 667 ex- his informal bill of perfected he when (Tex. State, 568 S.W.2d 344 pra; v. Bodde he the answers that ception, and obtained v. 581 S.W.2d Cr.App.1978); Garcia did, peremptory he would not have used State, 523 (Tex.Cr.App.1979);Abron v. fact that coun- on Jordan. Given the strike (Tex.Cr.App.1975); v. Smith he S.W.2d actually the answers sel had obtained nold, Powers, Bates, Fait, Sallas, Collins, (Tex.Cr.App.1974); 513 S.W.2d Quilkin, and Laake. v. Me Tex.Cr.R. and Grizzell (1957). making In the de- S.W.2d had read the Arnold testified that she the trial court abused termination whether it”; article, just “I that scanned restricting the its discretion any opinion had not therefrom she formed examination, the test is whether voir innocence; guilt or as to questions sought to be question the or anything she she could set aside that that question “If the proper. asked are not find where might read. We do have prevented defendant was proper and the appellant Arnold asked counsel asking it, presumed is then harm be- news- questions having her read the about intelligently could not cause the defendant paper article. challenges without peremptory exercise his the testified that he had read Powers gained from an answer.” the information article, he also testified that but State, supra, question 643. “A Smith v. any opinion or he did not form conclusion juror’s if proper is it seeks to discover innocence from applicable the case.” issue views article, having further testi- read the Smith, supra, at 643. disregard anything that fied that he would State, supra, judge the trial Smith In the he had read about case and would request to the accused’s counsel’s case he heard from judge denied the from what venirepersons the question the about what ma- chair and exhibits admitted the witness questioned Powers they regarding read the defense into evidence. Counsel terial had having newspaper arti- he the his read the insanity, after had informed veni- about remem- told counsel that he going cle. Powers repersons that accused was appellant that bered that article stated during that defense the trial. This raise ’77,something in ’75 or like “was convicted judge held abused his Court trial that, death. of murder and sentenced to entitled to discretion because counsel was of a Okay his case was overturned because venirepersons question subject. on this improperly, that was confession Also see Robinson something, I don’t improper or fake (Tex.Cr.App.1986). was, is about all I know and this what Smith, supra, In this Court was also about, it, talking it’s I know about judge confronted whether the trial Pow- guess about it.” had that’s Counsel when, had his discretion after sev- abused by asking indi- repeat him ers his answers panel eral raised their members of questions regarding the answers he vidual indicating they hands “had read or confession, Powers given. As to a had something personal or had heard some my- “I have situations where stated: seen offense,” knowledge facts any- I sit and confess to self would down requested he counsel be allowed thing up, joking.” and I'm not that came question venirepersons subject. on this challenged Powers and the Counsel judge request. This trial denied the challenge. Pow- judge overruled trial judge his Court held that abused that because he soon thereafter stated ers to know “Appellant was entitled discretion: confessed, had aware panel specific knowledge had con- my in mind because always be such “would through pretrial cerning the instant case deliberately.” forget nothing nobody can only sought ques- publicity. Appellant challenge. renew did not Counsel tion those individuals who indicated prosecu- questioned by one of When knowledge they already of the instant tors, he would follow stated that Powers and, question proper there- case. Such a consid- “not to judge’s instructions (644). fore, should have been allowed.” have read or might he anything that er only heard”; case previously have discussed testi- would wit- “in form of venirepersons Kendrick and from what heard mony of the might Court exhibits that the review voir dire nesses and Jordan. We will now evidence”; he had Banks, that and venirepersons Ar- into examination of allow guilt opinion appellant’s as formed no to or Fait testified that she had read the news- upon paper did what he had read.” article but that she not form an innocence “based opinion appellant’s guilt by appellant’s as to or innocence again questioned When article, having after read counsel, and could set opin- he had Powers stated that no anything might aside that she have read appellant guilty ion whether or inno- judging ap- the merits of the case. When he cent. After Powers stated that do “will pellant’s questioned Fait, counsel she stat- ignore his best he had re- to read [what stating ed article that she recalled the that garding having given a appellant confes- tried, convicted, appellant and “had been sion], no way completely but there is I can itself, and trial this was a retrial of the forget anything because I can remember elderly that the victim was an woman.” back”, things appellant’s too far counsel As appellant to the fact that had been cause, challenged for Powers convicted, previously Fait stated that “I challenge pause was overruled. We to really know don’t what to [that means] point out not complain that does me,” trial, having “if but that he is another appeal erred on that not one”; some in the first there was doubt sustaining challenge his cause for as to anything that the first trial did not have Powers; complaint appeal is his directed trial; put do this she what that could judge’s regarding to the trial instruction mind”; she it had read “out of her and that questioning venirepersons detail would not influence her. having newspaper about their read the arti- “glanced had cle. Sallas stated that she it first headlines whenever came out Bates also stated that he had read the that, I know paper”; “other than don’t article, it, “I reading remember about, case”; anything anymore about the but, you know, I don’t much remember that try that she “could set that aside and digest of the details because I didn’t it real strictly upon case the facts and evidence because, know, you I hard whenever read it courtroom”; might hear in the she happening, I knew what was what was any opinion had not formed or she coming (that he knew down because he had guilt appellant’s as to or inno- conclusion prospective juror summoned as a in a been told cence. Sallas counsel might criminal case case be that article, her husband had read the entire case),” opinion he no but that had formed something being “said or another about it as to or innocence aas know, Longview up changed, you from reading Appellant’s result of the article. changed you, way and then but having questioned counsel Bates about it, any anything I don’t know far as else read the article. Bates testified of it.” do not find in the record where We from recalled the article that sought question counsel further Sallas Gregg County case “was tried purposes of an informal bill or other- remember, know, I you overruled as wise. appealed, appeal something court she, too, only stated had Collins recall, it.” Bates could not how- overruled headlines, I glanced “Usually what at the ever, specifically what the article stated as headlines, who look obituaries and at is the “overruled”, why “It the case was (and Sundays getting married on type some er- means was reversed for daughter’s wedding picture was in time her further that as a re- ror.” Bates testified from the paper).” Collins recalled reading sult of the article he did not have had been transferred headline that the case “any feelings concerning the defendant ei- Gregg County. Angelina County When Bates way ther one other.” find in where counsel the record do appellant’s informal bill of ex- testified on pur- sought Collins for question further testified, in ception, he addition what bill or otherwise. poses of an informal stated, already he did remem- she, too, recalled Quilkin stated that containing any reference to Me ber article headline, pay I reading “but didn’t a confession. being they newspaper had read the attention to the article about a case stated that article, they moved here ... that she had not formed told the what were about arti any opinion appellant’s cle, effect, any, therefrom as to if and what innocence; guilt might or that she would decide have had on them. We also article only on what she heard in the appellant’s case find and hold that counsel was evening courtroom. The before she had given leeway attempt sufficient in to appeared an article that had in the read spark venirepersons of memories “just juror newspaper and recalled some article, who had read or had been told had been chosen.” do not find in the article, they might that recall about so sought counsel to record where further they more details of the article than had question Quilkin purposes Me for of an they that could recall. We find that stated informal or bill otherwise. venirepersons’ the named memories were becoming capable ignited by of simply stated that he had read the news- Laake Judging spark. counsel’s the voir dire ex article, A”, paper “Appendix see “that complained amination of the about venire- going to held trial was be here. Other persons totality of the circumstanc nothing”; than he that that had not formed es, realistically we cannot state that any opinion therefrom or as to the judge improperly in this cause restrict appellant; of innocence and that he would appellant’s ed judge counsel’s voir dire examina the merits of the case from what he appel- venirepersons. Appellant’s tion of the heard the courtroom. Laake told sec reading he ground lant’s counsel that remembered ond of error is overruled. place that “Lufkin had been chosen for the We now address third trial, I really don’t recall wheth- error, “The Court erred in that Trial there er other items there ... I Appellant’s Change denying the Motion for thing already did read that the been Angelina County].” of Venue [from tried, defendant had been convict- reading A clear of the record it makes it going ed and that was ... to be tried us, special contrary obvious to to what going that it to be retried because the prosecuting attorney in this con- cause plea defendant was convicted a cludes, article, “Ap- that the guilty, guilty plea he sen- ... A”, pendix apparently first from the time tenced death he ... had not [Laake] it, preyed saw counsel any way suspicion way formed a one heavily on his mind as whether or not as to the other whether or not the defend- a fair could receive guilty anything ant ... that he could County, Angelina point trial in to the set aside whatever had read and not let juror after the 99th was exam- any way in it interfere with his delibera- ined, change counsel filed a motion tions a case of this nature ...” When Angelina from venue to transfer the cause accept time for came counsel might County. Although sympathize reject cause, Laake as a feelings, thoughts inner with counsel’s following: record reflects the “We would record, given the we are com- state happy take [Laake].” pelled disagree with him that the trial summaries, Given the above we find that overruling his motion for judge erred clearly if this is not the situation where change of venue. venireperson or she states had read attorney and his asserted Appellant newspaper article that concerned the ac “prior of venue that the motion for summarily re cused’s case the trial beginning Voir Dire selection permit fused to the accused’s counsel the date, that Jury subsequent to that pursue subject. opportunity further Angelina County has media compare Mc news Manus v. su See and within the local record, published stories numerous pra. the state of this we are Given allegations fact and press that include in unable to state the trial court’s De- that the prevented the same to be struction in this cause counsel have stated previously tried and con- exploring venirepersons been with the who fendant has present- presented he is testimony victed of offense of which The State from the trial; of ly attorney on that he received a sentence local elected district testified who death; Appeals opinion any great that the Court of Criminal that in his not there was decision; original against Angelina prejudice appellant in Austin reversed the original prevent County and that decision was reversed that would him from re- given by ceiving impartial of the and because confession a fair trial. The trial Defendant.” overruled the motion.

Although we motion jurors find that We first observe that none of change comply disqualified for of venue does not with in this who served cause was 31.03(a), provisions serving having of Article Y.A.C. because of read of C.P., governs requirements which of a articles or heard the radio venue, change defendant’s motion for of broadcast. accompanied by it was affida-

because agree appellant We with that “due persons from at least credible and vits two process provides change for a of venue appellant did not properly swear a Defendant his inabili when demonstrates motion, allegations in the and thus is not ty to obtain an and fair trial review, subject to ad- we will nevertheless Groppi v. place at of venue.” See appellant's error. ground dress of Wisconsin, 490, 400 U.S. 27 91 S.Ct. (1971). making the outset that State asserts at L.Ed.2d 571 In this state The ment, change appellant recognizes motion of venue was seek that one untimely provisions ing of Arti filed under the to have his nullified on the conviction 28.01, (7), V.A.C.C.P., gov 1 he was cle denied a fair § filing impartial jury pretrial pub due to pretrial erns the motions. This adverse ordinarily licity must an actu light merit in of this demonstrate contention without State, al, prejudice identifiable of Revia v. decision 649 attributable Court’s part publicity on the of his members (Tex.Cr.App.1983), 625 which held S.W.2d Mayola v. 28.01, jury. See the cases cited in supra, that “the limitations of Article Alabama, (5th Cir.1980), F.2d at 623 992 longer change can no bar consideration of However, page publicity in 996. the fact of Enriquez v. motion.” of venue Also see not, more, the news media does without State, (Tex.Cr.App.1968). 141 S.W.2d prejudice change or require establish change This is because a of venue is one of State, See Freeman v. venue. Thus, constitutional dimension. the re (Tex.Cr.App.1977); Philpot v. 28.01, quirements gov supra, Art. (1960). 169 Tex.Cr.R. S.W.2d motions, filing pretrial give ern the must applied outside The test to be is “whether way to the constitutional consideration that affecting community’s influences cli an accused must fair trial. See receive a opinion are so mate to a defendant Rivea, Henley v. supra, suspect resulting proba inherently that the Also see Ri (Tex.Cr.App.1978). S.W.2d proce bility requires of unfairness suitable Louisiana, v. deau 83 S.Ct. 373 U.S. Bell v. safeguards.” 582 S.W. dural (1963). 10 L.Ed.2d do not Ussery (Tex.Cr.App.1979). Also see 2d 800 today, regardless answer of the limitations (Tex.Cr.App.1983); 651 S.W.2d 767 28.01, supra, question of when of Art. State, supra. Manus v. Mc late to it is too file a motion venue. carefully the ex We have examined only of the record evi- and the voir dire examination

The reflects that hibits prior hearing jurors appellant presented prospective on that occurred dence appel hearing the time the was held his motion consisted of several ante, motion, articles, see as after including that we have lant’s as well the one A”, hearing opinion, held. We do “Appendix to this when the attached broadcast, case was transcription find a radio therefrom “utterly corrupted by press prospective caused to be the voir dire examination of the coverage.” We also find that the exhibits up during to that the trial. jurors point juror. reporting. prospective one objective for cause as to reflect fair again, disagree jurors appel- do not must testimony Once appellant’s trial reflect or indicate that lant. corrupted by “utterly press coverage”. four, five, grounds In of error numbered Florida, 794, 798, 421 U.S. Murphy See six, seven, eight complains (1975). 2031, 2035, 44 L.Ed.2d 589 95 S.Ct. judge erroneously that the trial failed appellant has find and hold that failed We challenges to sustain his for cause as veni- that the trial to establish demonstrate Twohig, Joy Ar- repersons James Linda setting inherently prejudicial or that Anderson, nold, Quilkin, Lillian Me Austin process permitted an in jury the selection Laake, peremp- he and Fred on whom used as of prejudice actual a result ference of challenges his for cause tory strikes after broad newspaper articles or radio challenges The for cause were overruled. Florida, 432 v. U.S. cast. See Dobbert pursuant provisions of were made to the (1977). 53 L.Ed.2d 344 S.Ct. V.A.C.C.P., 35.16(c)(2), pro- Article which conceding might there have been Even challenge may that a for cause vides knowledge community of extensive by following made the defense for the rea- appellant, either the crime or the which we venireperson] son: “That has bias or [the find, by to not this is not sufficient itself do applicable prejudice against of the law constitutionally a trial unfair. We render upon which the defense is enti- to case Dobbert, that, like the defendant su find rely, tled either a defense some asking pra, appellant presume is us to un phase offense for of the which the defend- magnitude his fairness of constitutional mitigation being prosecuted ant is or as a solely community on that the

trial the basis punishment of thereof or thereof.” previous made aware of the fact of his venirepersons Appellant challenged Two- charges against him. This reversal and Arnold, Quilkin, Anderson, hig, Me and decline to do. ground they Laake on the were biased Appellant has us failed to convince against assessing punishment the minimum totality of the under the circumstances possible of for lesser included offense a constitutional with re- sustained violation murder, years, probated. is five which pretrial publicity. spect We pro It is now axiomatic that a totally disagree appellant that “The with spective juror who states that he cannot coverage previous trial which media probated consider a sentence for lesser published day Dire before the Voir murder, included offense of and the de began great prej- created so examination eligible known that he is fendant makes it against Appellant udice could probation he is for the event convicted a fair and trial.” not obtain offense, State, Mays 726 S.W.2d see v. disagree totally appellant with also (Tex.Cr.App.1986), subject to is coverage, coupled the limi- “The media challenge for the defendant be cause Dire, placed prevented tation Voir inability on the cause such demonstrates disclosure, prejudice left in tack full prospective juror consider the part Also see Bell v. box.” punishment for that offense. range full State, (Held, supra, motion See, v. example, Barrow though a properly overruled even venue (Tex.Cr.App.1985); v. S.W.2d 860 Jordan newspaper article mentioned that the de- (Tex.Cr.App.1982). 635 S.W.2d crime). had confessed to the fendant however, required is not venireperson, A Appellant’s third of error over- probated he could consider a state that ruled. in a for the offense of murder sentence prospec If the Appellant particular his thirteen factual situation. asserts in last disqualified as juror is a matter grounds error that the trial erred tive his law, aside sustaining challenges for states that he can set either against governs pun the law that prospective ju- named bias cause as to certain crime, sustaining challenge particular rors or in the State’s for a ishment previously pointed sustain the defendant’s expo- refusal to We have out the court’s Kendrick, Bates, Banks, Powers, challenge for cause will be reviewed in sure that Fait, Sallas, Quilkin, Me light of the answers the and Laake sus- of all reading part tained as a result gives. of their See Clark S.W. article, “Appendix all (Tex.Cr.App.1986); Anderson 2d A.” When it came time to examine Sand- (Tex.Cr.App.1982). ers, appellant perempto- had exhausted his part of the record Our search of that ry accepting strikes. Prior after by the District Clerk that relates to action juror, appellant Sanders as a counsel for Angelina County yet has to reflect or challenged Sanders on the basis of his hav- filed, prior reveal where ing through heard of the case articles that examination, proba- a motion for voir published newspaper, had been in the local However, part tion. of the record that News, regu- only which is the Lufkin relates to action the District Clerk of Appellant’s lar in Lufkin. chal- county Gregg County, the from which the lenge was overruled. Sanders testified transferred, appel- case was reflects that newspaper that he read the when he re- application probation. for lant filed it until he was the trial ceived instructed in the event Thus, record reflects judge not to read it. As to the article that he murder guilty of found appellant was A”, “Appendix inis Sanders testified that filing at least probation, eligible was he recalled that the article referred to “a purposes. lady was killed and that the defendant was The record of the voir dire examination killing”, in the that the trial involved was although reflects or indicates that the chal Lufkin, “coming” lenged prospective jurors expressed vary tried, pled guilty, getting had been a ing degrees against probated pun of bias a new trial because of a “volunteered state- ishment for the lesser included offense of plea”, ment” or a “volunteered and that he murder, they they stated that nevertheless death, he, had been sentenced to but that assessing punishment could consider such Sanders, “presume could that what he had proper for the offense of murder in a case. read this case Thus, they disqualified not as a mat were wrong.” also testified: “I Sanders would given find and hold that ter of law. We I have to hear this case before could have totality their answers witnesses, my opinion, hear all the hear all overruling appellant’s did not err in chal ways.” felt that the evidence both Sanders State, lenges see v. for cause. Also White “forget he could what he read the news- (Tex.Cr.App.1981); Bare 629 S.W.2d paper”, and that he didn’t think the news- State, (Tex.Cr.App. v. S.W.2d foot him. paper article would influence 1980); State, 594 v. S.W.2d Simmons pointed if previously We have out that State, (Tex.Cr.App.1980); Byrd Von v. reading newspaper account of the a (Tex.Cr.App.1978); Moore v. S.W.2d 883 prospective juror accused’s case the forms (Tex.Cr.App.1976); 542 S.W.2d 664 guilt or inno- such a conclusion as to cf. 643 S.W.2d 397 Hernandez v. defendant as would influence cence State, supra. (Tex.Cr.App.1982); Jordan case, deciding see him in his action grounds Appellant’s of error numbered 35.16(a)(10), disqual- supra, juror is Art. six, seven, four, five, eight are over However, the ified as a matter of law. ruled. provides that if the statute also grounds conclusion, Appellant asserts in his but not as to juror has formed eleven, twelve, nine, ten, innocence, guilt error numbered he shall be the accused’s thirteen, fourteen, prospec fifteen that his conclusion as to how further examined Sanders, Banks, formed, James to which it will jurors tive Hollon and the extent Powers, Bates, Kendrick, Alvin James If juror Sue affect him. states that Fait, able, subject notwithstanding and Fred Laake were his Louise believes he is conclusion, impartial verdict challenges to render an to his for cause because their evidence, court, if upon and the prejudicial pretrial publicity. the law exposure to cause, may 617 S.W.2d juror see satisfied Crawford verdict, may, such its and will render (Tex.Cr.App.1980); Chambers v. discretion, competent admit him as to serve (Tex.Cr.App.1978), given discretion, court, in in such case. If the its penalty of death fact that the maximum juror impartial, that the is not satisfied assessed, will for ar- has been assume discharged court. shall be appellant timely and gument purposes that out, previously pointed have We sus- properly objected judge’s to the trial concerning appellant’s sec- our discussion challenge. taining the State’s ante, grounds third ond and error totally find contention might merely prospective juror because a unequivo- merit because Cummins without have read article about did not cally testified that he believe not, standing this will accused’s case that could penalty, death that he not conceive alone, disqualify serving him from as a con- where he could a set circumstances juror. venireper- We find that the above they giving penalty, and that unequivocally sider the death sons never stated as feelings had formed conclusion against set his aside would of appellant innocence as would influence penalty death and base decision on Thus, they were reaching a verdict. them presented. Appel- evidence that would be law from matter of disqualified as a sixteenth of error is over- lant’s Appellant’s cause. serving jurors ruled. thirteen, twelve, numbered of error grounds having carefully After all of reviewed are overruled. and fifteen fourteen error, grounds finding that none rise to the level of reversible In his final sixteenth error, judgment we affirm the trial court’s error, appellant asserts that of conviction. sustaining erred in chal State’s lenge cause as to Jim Although

J. Cummins. it is find that ONION, P.J., concurs the result. questionable highly whether DUNCAN, J., participating. timely properly objected to the trial judge’s sustaining challenge the State’s A

APPENDIX

344 concurring. prejudice against the accused found

CLINTON, Judge, trial.” way jury its box at his into result, Concurring in I to track write Id., Moon in affirm- quoting Thus at 313. developments per- in our case law relevant Mason v. in ing a misdemeanor conviction claiming taining ground, third error to the (Tex.Cr.App.1964), 916 venue, change of in denial of his motion for no evi- the Court “likewise here find[s] and then to comment on the manner prejudice against record that dence disposes ground. the Court of that way jury found its into the box at Amendment, applicable made The Sixth Id., following at 918.3 Also his trial.” through the states the Due Process Moon, Taylor v. 420 601 S.W.2d Amendment, in the Fourteenth Clause 1967), (Tex.Cr.App the Court called it id., guarantees prosecutions in all criminal at 604. prejudice,” “identifiable enjoy right to “an the accused shall By the time Mason made its way I, 10, Bill impartial jury.” So do Article § Appeals for the United States Court of 1.05, Rights, and Article V.A.C.C.P. Circuit, Supreme Fifth Court had decid “[Wjhere prejudicial publicity because of Louisiana, ed such cases as Rideau v. 373 jury community which the .... 723, 1417, U.S. 83 S.Ct. 10 L.Ed.2d 663 from is to be drawn may already permeated Louisiana, 379 466, be (1963); Turner v. U.S. defendant, Estes hostility 546, (1965); with toward the .... 13 424 85 S.Ct. L.Ed.2d Texas, 532, 1628, v. under the Constitution a defendant must be 14 381 U.S. S.Ct. (1965), Sheppard v. Max change given opportunity an that a L.Ed.2d 543 show well, 333, 1507, 16 Groppi 384 U.S. 86 S.Ct. of venue his case.”1 required (1966). L.Ed.2d 600 In the latter the Su Wisconsin, 509-510, 511, v. U.S. admonished, per preme Court “Given the 490, 493, 494, 91 S.Ct. 27 L.Ed.2d 571 vasiveness of modern communications (1971).2 Therefore, the constitutional issue effacing prejudicial publici- difficulty whether, raised the motion is on account ty jurors, minds of the trial courts concerning pretrial publicity adverse strong must take measures to ensure that trial, impending appellant was entitled to a weighed against is never the balance change of afforded a venue order Id., S.Ct., 1522. accused.” at jury. fair trial “[Wjhere specific holding: there is a Its Formerly was “reluctant” to the Court prejudical likelihood that reasonable change “in the reverse for failure to venue trial, prior prevent a fair news to trial will showing any prejudice absence continue the case until the should against way its into the the accused found abates, to another threat or transfer State, Philpot jury box.” S.W.2d county permeated publicity.” with not so (Tex.Cr.App.1960). Illustrative is Mason, So, Pamplin F.2d 1 Ibid. Moon v. 169 Tex.Cr.R. “the Irvin (CA 1966), applied the court (1959): S.W.2d 312 Rideau, Estes holding gloss with ” Sheppard holding to hold: “It has been the consistent that in order prejudice this Court longer “The test is no whether omitted] [citatons require way a reversal refusal its into the box at the found venue, trial, peti- showing the Texas court stated there must be a throughout hostility In other emphasis toward the defendant.” 1. All is mine unless other- noted; underscorings words, community two temper wise above latter —not Supreme opinion are in the of the Court. gauged. venirepersons to be —is expresses agree- page majority While at 21 the 2. consistently it held Court also noted that 3.The apparently from ment with a statement appellant’s taken statutes, provide for a "our which do not brief and then directs the reader cases, change are not in misdemeanor of venue Wisconsin," Groppi must un- "See v. the reader However, the Su- Ibid. unconstitutional." Groppi wrote not of derstand that the court by change that notion preme Court would soon "inability impartial jury,” but rath- to obtain an holding statutory prohibition in Michi- a similar jury an er of methods to "assure supra. Groppi, community.... already permeated gan unconstitutional. the [from]

345 v. Bridges Then there was appeal. ... As we read Su- turner’s preme cases test is: Where (Tex.Cr.App.1971), Court in which the S.W.2d 827 affecting the commu- influences outside to the “current test” only Court not alluded opinion defend- as to a nity’s climate Enriquez, supra, but quoted extensively resulting inherently suspect, the ant are Mason, supra, pointed Pamplin v. from probability requires unfairness suit- “independent” plenty out that there was safeguards, such as a procedural able pretrial publicity defend- proof of about the venue, fair change of to assure a woman, police an but ant and undercover impartial trial.” as follows: resolved the issue Id., substantially That is what at 5. alone, “This, standing would not autho- Supreme would later elucidate Court grounds preju- reversal on the rize a Wisconsin, supra. Groppi v. against particular appellant dice Mason, Pamplin v. heels of Hard on the community. We do not shown gave supra, Court short shrift a Enriquez v. us, did have before publicity prejudicial pretrial be- claim of State, supra, transcription the exam- a did show he had ex- cause the record not way no of the venire. We have ination challenges, peremptory hausted knowing difficult it was to secure how opin- venireperson formed an who had The trial court jury. [held matter] guilt of on the ion as his innocence served during abeyance the selection jury because the had consistent- Court alone, change ly publicity, jury.... does not estab- on his own held [to venue] v. Ward prejudice. lish if that a fair motion it became obvious 876, (Tex.Cr.App.1968). Regarding trial could not be had. We have conclud- Mason, supra, v. Pamplin mere- Court failed to show reversi- ed ly that “as we said construe deci- overruling ble error his motion for in.... ..., the record herein does not sustain sion. change at the time the selec- of venue contention that ‘was tried began.” tion of the media,’ largely by the news or was denied Id., at 829. process due of law failure the court’s Ibid. change the venue.” In those two cases the Court either never “presumptive prejudice” grasp did not however, Shortly, correctly Court Mason, Pamplin v. test enunciated recognized that the matter of merely give lip service was content question “has venue become of constitu continuing tional dimension under the recent decisions at dire for while look voir Supreme Court of the United See Morris v. prejudice. actual States_ and under the decision... (Tex.Cr.App.1973), S.W.2d 768 Mason, et Pamplin al. v. 364 F.2d 1.” many venirepersons Court calculated how (Tex.Cr. Enriquez v. S.W.2d 141 Beck why, quoted from were excused and App.1968). The Court observed that inde Washington, v. 82 S.Ct. U.S. pendent proof coverage had of media (1962) (“there could no L.Ed.2d 98 made, good been but that a number of petitioner if infirmity constitutional actual venirepersons they stated seen or impartial jury”), ly an received a trial although heard about the offense none re Pamp ubiquitous excerpt set out the exactly lated what. Thus an issue of out Mason, supra, lin Irvin paraphrased publici prejudicial pretrial side influence of Dowd, 366 U.S. S.Ct. ty really instead of raised. But (1961) (jurors need not be total L.Ed.2d 751 basis, deciding upon the case on that exam ly issues of ignorant of current facts and pages of ination of some 1500 voir expected to day can be have noted Court “exercise impression opinion about formed some many caution and extreme excused case), to find defend important criminal venire, accepted who under the usual and Id., by jurors opin who had no ant “tried practice would have been selected.” id., guilt,” at 772. 141. ion as to his 346 State, (Tex.Cr. Garcia in 930 v. day 1975 the Court 537 S.W.2d same June theOn State, like Mitchell v. App.1976) strikingly contrasting unani is much

delivered two supra, a record of v. except there was voir Mitchell subject. opinions on the mous said it had State, dire which the Court read and (Tex.Cr.App.1975), 510 524 S.W.2d difficulty securing in State, (Tex. a “noticed the lack v. 524 693 and Adami S.W.2d State, v. James qualified jury.” 546 S.W. Cr.App.1975). (Tex.Cr.App.1977), copy is a carbon 2d 306 State, supra, typi- Mitchell v. is another Id., at 309. of Garcia. disposition: appellant did cal short shrift Finally, setting its out admonition heavy proving after discharge his burden of ante, 344-345, at holding, and community in prejudice such Sheppard v. Maxwell on its Court turned obtaining a fair and likehood head, viz: he “has not that he in that shown doubtful challenges required to exhaust “Thus, proper find it we con- objectional juror; nor is there a accept an prospective of the sider the void dire the voir transcription of dire examination jurors determine whether jurors so this Court ‘impartial jury by was tried an free from prejudice in State, might inspect it for evidence of Adami v. outside influences.’ See Id., Mason, supra.’’ community.” at 514. supra; Pamplin v. State, State, Freeman 287, v. 556 S.W.2d v. supra, Adami In the trial court Byrd Accord: Von v. (Tex.Cr.App.1977). hearing appel conducted an extensive State, (Tex.Cr.App. “pattern” 569 S.W.2d presented a demonstration lant 1978). Henley v. Contra: 576 S.W. pretrial publicity. judge of massive The 66, 71, (Tex.Cr.App.1978); Meyers 2d ruling, announcing deferred that he would (1898); 46 S.W. Tex.Cr.R. “in after voir dire order to deter wait until Randle v. 34 Tex.Cr.R. 28 S.W. difficulty selecting a fair and mine the (1894).4 The action impartial jury.” Court said that though opinion not error. Even hearing a Where in a on motion for recognition that its “the test to be reflects change of venue some witnesses testified longer is no applied by the court whether in opinion preju- their on account box,” way jury into prejudice found its pretrial publicity dicial accused could not cases Morris it of the quotes treatment trial, expressed get a fair while others State, supra, reports that the Court possible, opinion that a fair trial was with- the evidence and “read the has considered out mention of voir examination jury panel and notices the simply voir dire noted the Court “the difficulty securing qualified evenly a presented fairly lack of a divided conclude that “when the test set the court did not jury,” to choice” and therefore applied,” denying the in the cases is there was no abuse its motion. forth discretion the motion Ransonnette v. overruling abuse of discretion Id., therein; (Tex.Cr.App.1975), and cited change 704. cases of venue. Id., authorizing pro- change 4. a venue S.W. at 954 ‘The law that, notwithstanding upon county may prejudice the fact ceeds most in the be such “.... may searching questions applied to the be jurors qualify themselves who are not will regard prejudice or for or to his bias impartial, jury or in obtained whole accused, against whether is formed there part jurors. is demonstrated of such This in his mind such a conclusion as Now, these instanc- record this cause. influence him innocence of the accused will that, notwithstanding question beyond show es verdict, finding may still there be in the tests, prejudice may such these there be prejudice existing county render it such a as to county qualify jurors be who have will improbable defendant receive a that the could ac- deliberately a conclusion formed If it be conceded that all obnoxious fair trial. punished. guilty, cused is But, and should be being ques- jurors kept jury by be off the could obtained, it even be does should cause, challenges regard tioned in prejudiced jurors." follow that it did not contain providing law for a would seem the Id., 28 S.W. at 955. useless, no and should have venue would procedure[.]“ place in our

347 “actual, State, prejudice,” yet 875, identifiable v. S.W.2d 880-881 be 596 Barefoot (also “presumptive to ex (Tex.Cr.App.1980) applied “instructive” for sets out the test State, 623 dire); Eckert v. amine voir findings It some fact prejudice.” makes (ex 359, (Tex.Cr.App.1981) 363-364 S.W.2d two the following the lead of decisions and voir dire to determine amine evidence Finally, majority pur- Supreme the Court.5 State, discretion); Ussery v. 651 of abuse “totality of ports apply a circumstances” to 767, (Tex.Cr.App.1983); see 772 S.W.2d disagree” totally only says “we test but State, 343, v. 685 also S.W.2d Crawford appellant, again of assertions quoted 1984), PDR (Tex.App. 349-351 — Amarillo his mentions Bell and overrules third grounds other granted reversal on af and majority opin- ground (point) of error. The firmed, (Tex.Cr.App.1985). S.W.2d 903 696 ion, says appellant “simply curiously, never Thus the Court move from we have seen trial court failed to demonstrate prejudice jury box” to “identifiable declining grant to its discretion abused prejudice” “presumptive tested voir State, su- change of venue.” See Bell v. Bell v. “judge’s to In examination choice.” ante. 811, cited and pra, and cases there at State, (Tex.Cr.App.1979), it 582 S.W.2d 800 sum, judgments In whether it reversed recognize evolution, appears to that sort of grant change motion for of failure Id., “judge’s on choice.” at and settled alias Ruben venue, notably Rubenstein 810-811. Also: Demouchette v. 591 793, (Tex.Cr. stein v. 795 407 S.W.2d and Mc 488, (Tex.Cr.App.1979), 490 S.W.2d Henley v. App.1966), 576 S.W.2d and 505, Manus v. 517-518 (Tex.Cr.App.1978), an ad 66 or affirmed (Tex.Cr.App.1979). Bell, ruling in such as verse other cases however, Here, majority opinion McManus, Demouchette Court presents of cornucopia a veritable mixed recognize vitality in has continued uphold of motion theories to denial Rideau, et al. formulation enunciated change Pp. First of venue. 338-339. off it majority fails to an ex Here the elucidate something tells us that should selfevi- be prejudice isting dichotomy presumptive of disqualified dent: no who served was actual, prejudice, much less identifiable serving pretrial publici- of account “ordinarily” explain happened It to notions of ty. notes that there must what ever Florida, 794, They Murphy They prop- cannot made to stand for the 5. are v. 421 U.S. 95 2031, (1975), juror exposure S.Ct. Florida, 44 L.Ed.2d 589 and Dobbert v. to information osition that 282, 2290, 432 U.S. 97 S.Ct. L.Ed.2d 53 prior convictions or a state defendant’s about (1977). 344 accounts of the crime with which news Murphy In the defendant is the notorious deprives charged presumptively alone Surf," "Murph appreciate what and to process. of due To resolve this defendant case, Supreme Court decided one must understand turn, therefore, indica- we must press the issues raised. Because of "extensive peti- totality of tions in the circumstances change coverage, apparently a motion for a fundamentally trial fair.” tioner's was filed, venue was heard and denied before trial. Id., 799, S.Ct., 2036. to discern 95 at Unable at selected, jury After a had been defendant moved found, Supreme enough Court indications the jurors they on the dismiss setting show "Petitioner has failed to prior were aware of one or the other of two inherently prejudicial or that the trial murder, respectively. convictions for theft and jury-selection process complains He renewed motion for of venue also Id., permits prejudice.” an inference of actual allegedly pretrial prejudicial publicity. based on S.Ct., 2038. at 95 at Thus his contentions were twofold: the significant decided "whether Dobbert truly composed jurors impar- were who concerning pretrial publicity amount relying jurors, tial indifferent on Marshall petitioner right [charged] deprived of his crime States, U.S. S.Ct. United trial;” merely Supreme made to a Court fair (1959), their L.Ed.2d 1250 stated indicia conclude, partial Murphy analysis "Petition- impartiality by presumptive- were overwhelmed under the to convince us that er has failed ly publicity princi- prejudicial adverse under the circumstances,’ supra, Murphy, ‘totality Dowd, judicial ple supra, with the of Irvin wrong finding Supreme no Court Rideau, Florida gloss Sheppard, supra. all Estes and pre- respect to the 796, 798, S.Ct., violation with U.S., constitutional at at 2034-2035. S.Ct., U.S., at cases, publicity.” reviewing Supreme After the latter Court 2303. concluded: by the trial court. abuse of discretion past edifying exploration

There is not an exposition of leading to a clear

decisions applied prejudicial

what test should applica

pretrial publicity, followed of this cause.6 to the circumstances

tion demonstrated,

Since, there as has been identifying which tests re- problems

are in applicable particular extant and

main at least today, the Court should

situations prejudice presumptive

make clear that e.g., Henley, supra,

test as articulated jurisdiction, and that

still viable require “prejudice

does

box;” here, regard to voir but that without exmaination, pre- of adverse evidence it in publicity is insufficient to raise only as to the merits the

this cause. Thus enough are indica-

issue is whether there totality circumstances

tions prejudice

demonstrate actual such that change of granted

trial court should have majority I deter-

venue. While believe compre- than a

mines that issue other circumstances, I analysis of the

hensive

agree trial court did not err in

refusing venue.

Therefore, overruling I concur join ground (point)

third of error and

judgment Court.

MILLER, J., opinion. joins in this Waco, appointed, Segrest, court

John W. appellant. SIMMONS, Appellant, Tom Melvin N. David Feazell, Atty., and Dist. Vie Waco, Robert Atty., Deaconson, Dist. Asst. Texas, Appellee. STATE Austin, for State. Huttash, Atty., State’s No. 388-86. Before the court en banc. Texas, Appeals of Criminal

Court APPELLANT’S PETITION En OPINION ON Banc. REVIEW FOR DISCRETIONARY Nov. 1987. MILLER, Judge. appellant for the of-

juryA convicted aggravated robbery of Bruce fense (CA 1980), remarkable reflects a Compare 996-99 6. the exhaustive examination by Judge Reavley supra. analysis Murphy, prescience of the authorities II in of Part Alabama, Mayola v. State 623 F.2d

Case Details

Case Name: Faulder v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 30, 1987

Citation: 745 S.W.2d 327

Docket Number: 69077

Court Abbreviation: Tex. Crim. App.