*1 HENLEY, Jr., Wayne Appellant, Elmer Texas, Appellee.
The STATE of Nos. 53561-53566. Texas, Appeals of of Criminal
En Banc. Dec. 1978. Rehearing Denied Jan. *2 Gaiser,
Will Gray, Terrence A. Edwin F. Houston, Pegelow, Rudy Esquivel, San An- tonio, appellant. Vance,
Carol S. Dist. Atty., James C. Brough and Don L. Lambright, Asst. Dist. Attys., Houston, Lucien B. Campbell and Douglas Young, C. Asst. Attys., Dist. San Antonio, for the State.
OPINION
PHILLIPS, Judge. The following opinion largely work of the late Honorable Howard P. Green, Commissioner of the Court of Crimi- Appeals. nal single In a before a was convicted for murder with malice in six cases. See Articles 1257(b), 1256 and V.A. P.C., 1925. Punishment was assessed years at 99 in each of the six causes. The court ordered that the sentences run consecutively. grounds of error two and three appel-
lant contends the trial court erred in over- ruling his motion for change of venue with- affording out pretrial him a evidentiary hearing in violation of Articles 31.03 and 31.04, V.A.C.C.P., and process due of law. 17, 1973, On December approximately four months after indicted grand the Harris County jury for six of the mass, highly publicized rape homosexual murders, and torture Honorable William M. Hatten, Judge of Court, the 176th District County, Harris hearings commenced on ap- pellant’s numerous pretrial motions in 198,892. Cause No. Appellant did not file a Supreme venue from Harris Court of Texas compel ruling by a motion for the trial court on his County but filed continuance motion for petition “Because of the massive dis- of venue. The was denied. asserting that May On when the consolidated potentially prejudicial semination of materi- trial, appellant again cases were called for elements of the news media . byal all *3 requested that the court rule on his motion a fair trial at the defendant cannot obtain change for of venue. The court refused. prejudice” a Finding great this time.” “too against appellant County in Harris existing Following the examination of 124 venire counties, adjoining Judge and all Hatten on persons, which resulted in the selection of change ordered a of venue his own motion1 persons jury panel as the from which the 198,892.2 Judge Hatten No. trans- Cause selected, ultimately the court stat- the 175th Judicial District ferred the case to ed: Antonio, County, Bexar where it was San “THE completes qual- COURT: That assigned No. 74CR—424. ification of the Jury Panel. Dial, objection “MR. Judge H. GRAY: Over our and ex- Honorable Preston ception, Your Honor. hearings began pretrial 175th District Court April following day appel- on 1974. “THE COURT: I understand. The Mo- change a motion for of venue in Change lant filed tion for of Venue is now denied. 31.03, compliance with Article V.A.C.C.P. “MR. Note exception, GRAY: our Your Appellant’s supported by motion was present Honor. We would like to proof, sworn affidavit and sworn affidavits of time, support at this of our Motion for citizens, Venue, all of which County Change nine Bexar of for our Bill of Excep- asserted that “there does in fact exist in tion. County, great preju- Bexar Texas so a
said “THE That COURT: will be denied. against dice him that the said ELMER Note our exception.” “MR. GRAY: HENLEY, JR., Defendant, cannot WAYNE 15,1974, was tried and on July obtain a fair and trial of said guilty a verdict of murder with malice was April County.” cause in said On in each of the July returned six causes. On following filing of four sworn State’s 25, 1974, appellant filed a motion for new controverting appellant’s affidaits motion alleging, among trial things, other that the venue,3 court change for of advised trial court committed reversible error in appellant that: refusing grant appellant an evidentiary “It is this Court’s intention not to take hearing, advance of on his motion Change Venue evidence on the Motion to change for hearing of venue. At the on attempt time. I intend to to se- at this appellant’s motion for new trial the trial Jury that can be done suc- lect a and if appellant court allowed to introduce evi- your will Motion cessfully, then I overrule support appellant’s dence in excep- bill of Venue; but, we cannot Change for if tion to the overruling trial court’s of his here in Bexar Jury successfully
select a
change of venue motion.
County,
grant your
then I will
Motion.”
appeal
The issue on
is
whether the
not allowed to introduce
Appellant was
trial court
not granting appellant
erred
exception
venue,
on a bill of
to the court’s
change
a
nor whether the trial
pretrial hearing
no
ruling
delaying
ruling
court erred in
appel-
its
May
venue would be conducted. On
lant’s motion
venue
for
until voir
precise ques-
filed a motion for leave
dire had been conducted. The
n fileand a
writ of mandamus in
tion to be decided is this:
petition
31.01,
they
five other causes where
1. See Article
V.A.C.C.P.
consolidated for trial with Cause No. 74CR-
424.
joint
motion of
and the
On the
Judge
also ordered a venue
Hatten
31.04,
County
County
from Harris
to Bexar
3.See Article
V.A.C.C.P.
county
“1.
there exists in the
a
That
timely
properly
files
defendant
If a
so
is commenced
prosecution
where the
change of
un-
motion
verified
against
great
him that
V.A.C.C.P.,
is
Article
der
trial;
fair and impartial
obtain a
cannot
and a denial of due
of discretion
abuse
to overrule the
for the trial court
process
com-
dangerous
“2. That there is
affording defendant
without
instigated by
him
in-
against
bination
evidence in
pretrial
which he
persons,
fluential
reason of
motion?
support
a fair
expect
cannot
trial.
guaranteed
A criminal defendant
impartial jury.
Article
fair
persons making
credibility
“The
Constitution;
10, Texas
Sixth
Section
venue,
affidavit for
or their
Constitu
the United States
Amendment
*4
knowledge, may
by
means of
be attacked
tion;
1.05,
Due process
Article
V.A.C.C.P.
a credible
person.
the affidavit of
for a
of venue when a
provides
by
issue
shall be tried
the
thus formed
inability
his
demonstrates
ob
defendant
judge,
granted
refused,
and the motion
or
impartial jury or fair trial at the
an
tain
the
as
law and facts shall warrant.”
Wisconsin,
Groppi
of venue.
400
place
added.)
(Emphasis
505,
490,
91
challenge for cause.
surprise, but evidence a wonderful degree
ignorance.
[Hjence
.
.
.
the jury
Randle v.
34 Tex.
the case of
*5
must be selected under the rules and
953,
by
43,
Cr.R.
confusion similar to
S.W.
prescribed by law,
the methods
and all
the trial
case con
evidenced in
of this
regard
changes
in
laws
to
of venue are
cerning
proper procedure
the
connected
enacted with a view this
to
fact. As has
change
with a motion to
venue resulted in
forcefully
been
by
supreme
said
the
court
a
the
murder conviction.
In
reversal of
Nash,
of Iowa
State v.
(347),
Iowa
case,
began
pretrial
trial court
the
a
‘The right
speedy
371:
to
and public trial
change
on the motion to
venue but
impartial
by
jury
an
guarantied
is
by
[sic]
sponte
stopped it sua
because the evidence
the constitution of this state
per-
to all
(a
against
the cause
prejudice
reflected a
accused
sons
of crime.
It becomes us not
case)
Dallas murder
and not the individual
place
light
upon
to
a
right
estimate
a
defendant on trial. The trial court conclud
by
high
secured to us
such
authority.
It
578, C.C.P., (the predecessor
ed that Article
important
is
to maintain the usefulness of
31.03, V.A.C.C.P.) contemplated
of Article
a
judicial system,
our whole
suspi-
no
only
change of venue
when the evidence
popular
of
cion
excitement
in the admin-
prejudice
showed a
directed at the individu
of the law
istration
should be allowed to
It
al defendant.
further concluded that
public
the
impair
confidence in the fair-
prejudice against
evidence of a
the cause
judicial
and impartiality
proceed-
ness
of
change
a
unless
justify
would not
of venue
An
of
ings.
public
excited state
feeling
jury
a fair
could not be
impartial
and
opinion
always
and
is
the most unfavora-
regular
pro
dire
through
jury
obtained
voir
the investigation
ble for
of the truth.
579,
cedures.. Article
C.C.P. This Court
only
juror
Not
should the mind of the
be
inap
a
concluded that such
distinction was
wholly
prejudice,
without bias and
it
operated
the
propriate
deprive
and
to
de
only
should not
from
be free
all undue
As
impartial
jury.
fendant of a fair and
feeling
itself,
and
excitement
but
par
of
stated
in Randle and
this Court
be as
possible
should
far as
removed from
at
significance
prejudice
ticular
to the case
bar:
the influence of
and feeling and
(1925),
predecessor
In Parker v.
91 Tex.Cr.R.
238 S.W.
Ann.C.C.P.
statute to
acknowledged
V.A.C.C.P.,
that on a
we
controverted
Article
the statutes are iden-
judge
language except
of venue
has
motion for
tical
31.04 substituted the
duty
try
grant
“applica-
to
the issue and
the motion if
word “motion” in
the word
lieu of
Although
law and
warranted
the facts.
tion.”
Parker was decided under Article
Vernon’s
recognize
cases
The aforementioned
A
of
others.
circumstance
excitement in
often,
may
answers on voir
importance
problem obtaining
itself
small
pas-
community
midst of a
stirred
by conscious or subconscious
dire affected
excitement,
to turn the
and
serve
sion
juror prejudice resulting
widespread
justice.
It is a
matter
difficult
scales
Therefore,
coverage.
news
inflammatory
cases
the true
a court in all
to draw
remedy
is
change of venue
assure
distinction,
say
and to
when there
line of
trial when extensive news
accused a fair
there is not such a state of
is and when
coverage
substantial doubts
has raised
pre-
feeling
prejudice
as
popular
ob
of voir dire for
about the effectiveness
Every
fair and
trial.
vent
taining
impartial jury. See American
judged by its own circum-
must be
cause
Project
Bar
on Minimum Stan
Association
* * *
is, however, There
stances.
Justice,
Relat
dards for Criminal
Standards
feeling
preju-
and a
guarded against,
be
Press, Comments,
ing Pair Trial and Free
but
only
within
without
dice
draft,
126-128,
1968).
pp.
(approved
box;
their
jury,
right
and a
however
in-
Supreme
As we
recent
tentions,
always proof against the
understand
are not
cases,
Influence of
to be
court in
applied
of the crowd.
the test
sympathies
prejudice
too
popular excitement
ruling
venue
is:
on a
”
strong
strongest resolution.’
for the
affecting
outside influences
“Where
Meyers
recognized, in
1898 this Court
community’s
opinion
as to a
climate
39 Tex.Cr.R.
46 S.W.
inherently suspect,
re
defendant are
concept
distinction between
sulting
requires
of unfairness
probability
juror challenges
for cause:
of venue
as a
procedural safeguards,
suitable
such
impaneled
is obtained and
“[T]he
venue,
change of
to assure a fair
law,
providing
rules
and the law
under
impartial trial.” Adami v.
Tex.Cr.
upon
proceeds
for the
App.,
(693) 695, quoting
524 S.W.2d
may
hypothesis
that the
Mason,
(5th
S.W.
factors in determin
relevant
Some
It may
“Prejudice
quality.
a sinister
is
affecting
ing whether outside influences
it;
and he not be aware of
possess man
opinion as to a
community
the
climate of
it, may purposely
or, being
of
he
aware
(1) the
inherently suspect
are
are
defendant
it,
may
vent his
in order
conceal
pretrial publicity
particu
and the
State,
nature of
44
revenge.” Also see Cortez
lar
it has circulated
degree which
community, the connection reference to As pub- of the 31.04, ment officials with the release Articles 31.03 and the trial court is (3) length the of time between the licity, the responsibility vested with of determin trial, the of the dissemination ing sufficiency” the “truth of the affi (4)the severity and of the of- notoriety alleging grounds davits for a fense, (5) is to the area from which venue when an issue is as to formed drawn, (6) occurring other events by grounds filing controverting those community or reflect which either affect affidavits, that issue “shall be tried or community individual the attitude refused, judge, granted and the motion defendant, (7) any jurors toward as the law and facts shall As warrant.” ve- likely factors to affect the candor and demonstrated, already the issues raised on voir racity prospective jurors dire. to change can affidavits Annotation, A.L.R.3d 17 generally, See fully not be and adequately through tried (1970). supra; See also Adami v. narrow jury procedure. more voir dire State, supra. Freeman v. Article Sections 8 See and V.A.C. In instant case the refused trial court Further, the C.P. of a court’s denial to allow evidence in introduce venue, motion for a change defendant’s of venue support his motion for allowing opportu without the defendant an following his the suc- and overruled motion nity to evidence in support qualification panel. cessful of a motion, expressly condemned trial court ruling appellant’s motion the Court in Burleson v. 131 Tex.Cr.R. only it was concerned with whether 1019. The dissent admits S.W.2d to draw who would tes- possible veniremen court comport failed to with give voir de- tify they dire that would procedure,” “accepted but seeks to excuse fendant fair uninfluenced what by analogy. analogy the omission The had the court- they heard or seen outside discretion in regulating trial court’s tri room. procedure al vis-a-vis evidentiary rulings discussed,
As successful supra, perfecting and the of a bill of error with not the sole qualification jury panel ignores of a is respect thereto a fundamental dis a defend determining criterion whether questions tinction between involved. entitled to a venue. See ant is pro analogy presupposes dissent’s Louisiana, supra; Rideau Adami proce priety conducting the trial. The the court’s supra. primary factor for of the trial dure demanded court under ruling consideration on a venue Chapter V.A.C.C.P. is for the threshold *7 affecting the “outside whether influences a trial issue of whether should be conducted community’s opinion climate of as to a the county involved. The of the timing Adami inherently suspect.” defendant are Chapter hearing is critical. It is no less State, supra; supra; Freeman v. a statute for its to ex mandatory failure supra; Bridges Morris designate timing for pressly precise the a Mason, (5th Pamplin v. F.2d 1 supra; argue To that man hearing. inquiry the 1966). Cir. Chapter just 31 could be effica by dated as ciously hearing conducted in a on a motion to change a entitled is to ignore for new trial the venue issue’s show, though it if he could even of venue putting threshold nature. It is indeed the possible be to a whose would select horse the cart. The has behind defendant subject challenge a were not to members proof made offer of with the affidavits cause, that there were influences for change of the of support filed in motion for the community which could affect answers filing of affida dire, controverting venue. The of witnesses testimony on voir or the by “joins vits State the and thus that a fair the issues” any at trial or for other reason pre requires be had in the trial court to resolve this trial could not and question. The County. liminary properly dissent Bexar the an assessment of making independent the on defendant proof burden of places the venue and change change for of of motion allegations a merits of proof appel- reflects that clearly delegate responsibility record to an to venue. chal- to meet this prepared process of due and
defendant late court. dictates by trial was frustrated lenge, 31, V.A.C.C.P., but that a necessitate Chapter hearing pretrial a to conduct court’s failure right impartial jury to defendant’s The dissent claims the issue. on protected in the instance fair trial be first when was within its discretion trial court A must not the trial court. defendant change venue without motion to denied process by a trial needlessly be denied due showing showing by the defendant —a a rigors and suffer the emotional court refusing trial court forestalled which the trial, possibly of a criminal expense hearing. Such evidentiary pretrial be af- pending appeal only incarceration to played not should be gymnastics mental process years months even forded due admittedly constitutional of questions when appellate court. Such a state of later are involved. dimension of process. is in itself a denial due affairs during We note that “fantasy not a nor We do call for world” trial allowed hearing trial court for new address the issues raised the coex- do we of support put to on evidence appellant press of a free and the rights istence of exception the court’s denial of to his bill We right impartial jury to a fair and trial. venue. While the of his motion is only that when there created an hold in hearing is during adduced to the under propriety issue as venue we us appeal in the record before cluded 31, V.A.C.C.P., it is to resolved Chapter order to examine it in to determine decline after, minimum, pretrial at a a eviden- only judge abused his discre whether the trial hearing. tiary change of appellant a granting in not tion us. the issue before venue. That Therefore, to we are constrained here is of discretion condemned The abuse under the cited and the facts hold cases grant a appellant court’s to the trial failure this case that the trial court’s refusal venue pretrial hearing on his grant intro pretrial hearing a hearing If the motion. support duce evidence in of his motion for great postponed until after venue is determination, precluded time, money will be wast- effort and deal law, contemplated by our of the commu as post- during evidence adduced ed if the consti nity attitude toward a new trial in another compels trial deprivation process. of due tuted a Further, unlikely that follow- county. it is retrial, express we event of a must In the guilty highly in a jury verdict of ing a appellant’s conten- deep concern over our mass, case the killing publicized sex-torture a fair trial when was denied jury’s tion readily erase the court would sequester the trial court refused appellant another grant pronouncement and objection placing news- allow and overruled his Lastly, procedure would such trial. escape duty men within bar.6 courts to their *8 trial, Light. hearing stipulated new the San Antonio It on his was
6. At the coverage newspapers newspa- to house- from introduced articles four holds was as follows: Express, San Anto- pers: Antonio the San News, Sunday Express-News, nio the combined 75,075 Express: (San daily average) The San Antonio Antonio 61,986 (Remainder County of Bexar daily average) 68,782 60,130 (San (Remainder daily average) San Antonio Antonio The News: County of Bexar daily average) 152,107 Express-News: (Combined circulation) there sequester jury The record reflects was moved to prior months which motion was two This the courtroom. box within jury extra during renewed that motion denied. He room and across the jury box was extra again jury was se- voir dire and after During the bar. jury inside facing the lected; July motions were denied. On both representing reporters artists and motion, pursuant to a defense this box. On occupied media news various questioned jury trial court to determine 4, July 7, 9, 12, of one or picture jurors “outside contact.” While all the any page was on the front jurors more of a local verdict, their it was denied it would affect newspaper,, having by been sketched one of jurors per- established that two had been in the extra artists box. Other by concerning newsmen sonally contacted jurors the case. stated that members Six drawings by televised all the family bynews- of their had been contacted major television stations. daily average ap- stipulated of 240 trial consisted peared news stories which It was further that the newspapers August, Light in the four as for the San Antonio circulation July, to the end of 1974. Of those arti- follows: cles, appeared during 107,435 trial and selec- evenings: Weekday 103,229 began July morning; Saturday tion which 137,838 Sunday: coverage The television of the events surround- ing by the crimes and of the trial itself local According just to 1973 estimates used all the overwhelming. television stations was as 229,300 papers, ratings San Antonio had households The estimated of local news telecasts County 240,900 major while Bexar the three tions, San Antonio had households. television sta- Television, prepared by compiled by Arbitron are as The evidence follows: introduced at motion for new - 29,000 TV noon total m. 12:00 o’clock 11:30 a. WOAI-TV households with 39,000 adults - 69,000 p. total TV 7:00 m. 6:00 WOAI-TV households with 103,000adults - 64,000 p. TV total m. 10:00 10:30 WOAI-TV households with 98,000 adults - 40,000 p. total TV m. 12:00 12:30 KENS-TV households with 55,000 adults 81,000 p. total TV 10:00-10:15 m. KENS-TV with households 126,000adults - 32,000 p. TV total m. 6:00 6:30 KSAT-TV with households 50,000 adults 52,000 p. total TV m. 10:00-10:30 KSAT-TV with households 84,000 adults coverage County coverage just The extent of this in Bexar Radio as extensive. The Henley “Henley log” station, KBVC, log reflected the WOAI-TV from one radio “script log rundown.” This reveals that from revealed that there were 608 wire stories rewrites, single during July, 218 of television station there were 85 tele- which were 1974. coverage August, pervasiveness dealing was demon- of this casts with the case from jurors ques- through July, ranged strated the fact that of These telecasts tioned, half, 64, opin- *9 over one had formed min- duration from 10 seconds to a full three appellant’s guilt or innocence. ion as to the utes. effect that “The conscious or unconscious men, juror one had been contacted and juror’s judgment have on the may this jurors Three were not contacted friend. evaluated, experience but indi- cannot be After the assistant any way. questioning only possible high- it is not but cates that newspaper, a local the trial manager of will have direct ly probable that press the not to contact court admonished bearing guilt on his vote as to or inno- and jurors family or members of their the publicity of all pretrial cence. Where the case with attempt to discuss public feeling created intense kinds has again sequester moved to them. telecasting the aggravated by which is jury, which motion was denied. the jurors of the trial the televised picturing 11,1974, court, learning the after July On pressures feel the help cannot but media, contact the possible of further knowing neighbors that friends and have jurors. jurors stated six Two questioned community them. If the eyes upon their jurors Three they had not been contacted. juror, hostile to an accused a televised family members of their had been stated realizing neigh- that he must return to juror her and one stated that contacted themselves, may the bors who saw girlfriend son’s had been contacted. nice, well be led ‘not to hold the balance question the remain- court then refused true between the and the clear and State jurors individually ing simply but addressed ’”* * * accused. general question panel to the concern- one ing possible contact the news media. though reversed even Estes was response jury. There was no from the La- while in the instant case sequestered ter, appellant’s sequester jury motion to they were not.
was once more denied. Maxwell,7 Sheppard v. In the later case of seques
In this State the decision to
supra,
Supreme
States
United
jury
ter the
is within the discretion of the
stated:
35.23,V.A.C.C.P.;
trial court. Article
Free
coming here we note
“Prom the cases
However,
man v.
exercising that
ment
trials
pending
has become in-
today,
the one before us
case as
publicized
creasingly prevalent. Due
re-
process
caution to en
court must exercise
quires that the
accused receive a trial
process
due
the accused is afforded
sure
impartial jury
free from outside influ-
decision,the trial
reaching a
fair trial.
In
pervasiveness
ences.
Given
of mod-
take into considera
necessarily
court must
ern communications and the difficulty of
of the news media
impact
potential
tion the
effacing prejudicial publicity from the
jurors.
on the
jurors,
minds of the
the trial courts must
Texas,
532, 545,
strong
In Estes v.
381 U.S.
measures to
take
ensure that the
(1965),
weighed against
DOUGLAS, Judge, dissenting. described for police a series of murders in majority discussing holds without the which he had collaborated with Dean Corll court abused its discretion evidence that the and David Owen Brooks. All of the victims motion for of were denying handcuffed both hand and foot to a ground on the solely large venue. It does so board in Corll’s home where he homo- put sexually court did not let him at raped and committed sodomy upon though even the evi- pre-trial hearing, subject- Appellant, them. Corll and Brooks support presented by appellant dence physical ed the victims to various forms of to merit a motion was insufficient shooting and sexual torture before or stran- had of venue. Even if this evidence gling them to death. The nude bodies the court prior to presented been boys transported a wooden denying committed error in “body city would not have box” to three sites outside the where, circum- change of venue. Under such wrapped plastic Houston and tied stances, by the court any rope, they error committed with were buried in shallow revelations, on the motion until delaying graves. ap- As he made these testimony was pellant harmless. led officers on a tour of disinter- the conclusion Arizona, (1966). 384 U.S. 1. Miranda L.Ed.2d 694 *11 in the desired which anything record in the re- resulted ultimately which ment statements. hearsay or affidavits of form twenty-seven bodies. covery of have could ruling, appellant Under Harris indicted Appellant was 40.- Article under proof of an offer made of six of County grand jury for the murder V.A.C.C.P., provides: which 09(6)(d), December individuals. On the deceased discretion, court, in its “(d) . The . . Hatten, Honorable William M. in the proof of an offer may allow District Court of Harris Judge of the 176th by the a concise statement form of hearings appellant’s on County, commenced of what offering the same party Appellant filed no mo- pre-trial motions. show, to be would excluded evidence County. of venue in Harris tion for out of reporter made before 16,1974, filed a January defense counsel On jury as an alterna- of the presence that be- alleging motion for continuance record to causing the tive method of po- dissemination of cause of the “massive testimony such excluded show tentially prejudicial material all ele- evidence, event the and in the other appellant the news media” could ments of of the transcription record contains a fair trial at that time. On not obtain an of- showing such reporter’s notes Hatten, 1,1974, February Judge on own be ac- same shall proof fer of motion, changing entered an order venue to establishing appeal as cepted on County. the 175th District Court of Bexar testimony or excluded what such consisted would have other evidence 8,1974, April pre-trial hearings began On into evi- admitted of had it been Court, the in the 175th District Honorable dence.” Dial, Jr., The follow- presiding. Preston H. for
ing day appellant filed motion appellant’s ruling its The court held 31.03, venue in accordance with Article outcome pending the abeyance motion V.A.C.C.P.,supported by his own sworn af- prospective of the voir dire examination compurgators. fidavit and those of nine thirty- jury panel if a jurors, stating that that, compur- Each affidavit stated in the in Bex- successfully chosen could not be two opinion, great there existed so gator’s the motion for grant County it would ar prejudice against appellant in Bexar Coun- qualifica- Following change of venue. not obtain a and im- ty that he could fair court thirty-two, the panel of the tion partial controverting trial. Four affidavits change of venue. motion for overruled the challenging were filed the State both the petition of venue and filed appellant’s Prior to Supreme ability appellant’s compurgators to of mandamus for writ the trial compel seeking to pervasive whether or not such a determine of Texas change of the motion rule on community prejudice against court to writ was The dire. to voir prior County. existed in Bexar See Article denied. V.A.C.C.P. 22, 1974, the court entertained that the denial of a April
On State contends the motion previously pre-trial evidentiary hearing filed motion for appellant’s necessary and stated that it would for of venue was in order change of venue pre- on the motion at that prevent proliferation not take evidence of needless time, place let him but offered to further contends publicity.2 State Attorney County bility Apparently District of the oral a letter to Harris confessions. Gray opportunity counsel Will both sides were afforded full Vance and defense Carol develop any the evidence February material to confes- Pegelow, Edwin dated sions. I would like to record, avoid another eviden- Judge Dial wrote: included in the tiary hearing might on the confessions as this ruling that there has been no on the “I note generate County.” needless in Bexar materiality confessions or the admissi- part on the preserved by permitting this decision the witness to tes-
judge response was made in to the actions presence outside the tify jury. If the object counsel whose was to this, proper way court refuses to allow right report use the news media’s error show is for the defendant to make pre-trial hearings adduced at as a proof. 40.09(6)(d), an offer of See Article *12 spreading vehicle for the abhorrent facts of supra. in which the defend- city the crime each appel- Although given opportunity, impartial jury to tried until an ant was be proof an offer of show- lant failed to make longer no be selected there. The could he of the evidence which ing the substance counsel, urges appellant’s pre- at State evidentiary have introduced at an would Houston, hearings in introduced so trial hearing and that such evidence would dem- prevented damaging testimony much community prej- of a onstrate existence being held there. There was a trial from against strong as to ren- appellant udice so incriminating evidence introduced more impartial improbable. der fair and was appellant Houston than there by any present- witness proof There was no during the trial on the merits. It was State ed at the motion for new trial to show such aim, to alleges, widely counsel’s so State prejudice.3
publicize the facts of the case as to ulti- mately impossible appellant render it for While it is true that at the motion for anywhere of Texas. tried State appellant new trial introduced extensive ev showing idence the existence of
Although the trial court did not follow
community,
showing
public
the mere
accepted
procedure in overruling appel-
ity does not itself establish the existence of
lant’s motion
for
of venue without
or necessitate a
of venue.
conducting an evidentiary hearing,
it did
State,
(Tex.Cr.App.1977),
Freeman v.
79 unfair probability in a as to result pect undue prevent of the evidence to Maxwell, 384 U.S. v. Sheppard delay was not error. ness. publicity. Such (1966); Adami 1507, 16 L.Ed.2d v. Weeks 161 Tex.Cr.R. 86 S.Ct. supra. v. It Bridges supra; (1955), the refusal of the court S.W.2d determine, this Court to request upon at the defendant’s retire the is incumbent circumstances, perfect exception his bill of the facts in order to from all the court’s the kind of to be error in view of was afforded held not whether Sheppard tendering of the witness to recalling contemplated by of all the properly at the conclusion can the defendant determination Maxwell. This permitting testimony purpose for the elicited considering the answers be made his bill. This Court held perfect jurors. counsel to prospective dire of on the voir eventually Louisiana, that since the defendant 373 U.S. Rideau *13 opportunity perfect his v. afforded a full Freeman (1963); 663 1417, L.Ed.2d 10 shown. Ac- State, exception bill of no harm was Morris State, supra; supra; Garcia v. State, 126, cord Pate v. 171 345 Tex.Cr.R. State, (Tex.Cr.App.1973); 768 v. 488 S.W.2d State, Davidson v. (1961); 162 532 State, S.W.2d State, Taylor v. supra; v. Wallace 640, (1956). 288 93 Tex.Cr.R. S.W.2d McIn (Tex.Cr.App.1967); 420 601 S.W.2d State, 510, 360 tyre v. 172 Tex.Cr.R. S.W.2d promised, As it had the court (1962). 875 present opportu- case allowed an nity proof during to make an offer of allegedly “lurid urges that the present trial and bill of that occurred in pervasive” exception at the conclusion of testimony. have had no other ef- County could Bexar presented All of the evidence at that time is him inspire prejudice against fect than to before this Court. on voir jurors. The record among potential twenty- hundred and reflects that one dire
Appellant’s application of ven jurors were called. Of prospective ue was controverted four Appel State. these, were excused for reasons
lant, therefore,
twenty-one
present
bore the burden of
health,
statutory exemption.
age, or
ing
prove
evidence which would
the exist
inability
an
because of
were excused
prejudice in
Seven
community.
ence of
Ab
Sixty-
of the law.
aspect
some
to follow
showing,
sent such a
the trial court acted
they
because
held estab-
four were excused
denying
within the limits of its discretion in
guilt
to the
or inno-
State,
conclusions as
v.
lished
James
of venue.
546
fact
not in
appellant. This
does
cence of
Garcia v.
(Tex.Cr.App.1977);
306
S.W.2d
inability
State,
demonstrate
itself
(Tex.Cr.App.1976);
Cr.App.1975), State, supra v. Adami theless not shown. change of venue is one of con question of State, supra veniremen); Taylor v. (18 72of there is con dimension. But no stitutional State, 139 Tex.Cr.R. 112); Handy v. (39 of infirmity in a trial court’s denial stitutional (45 99). (1940) 3, 541 138 S.W.2d has change of venue if a defendant of a read of had impartial prospective a trial actually Fifty-four received 541, heard of it on Washington, Beck v. newspapers, 82 369 U.S. the case in jury. mere fact that a (1962). television, 955, 103 The test of or both. 8 L.Ed.2d
S.Ct. heard of a case is jury has been has read or venireman whether such prejudice nor is community af outside influences evidence of is whether obtained v. Freeman disqualification. opinion grounds climate of community’s fecting the State, supra; Mor- States, v. supra; Knight inherently sus so are defendant as to the 80 State, State, Dowd, supra; McIntyre Louisiana,
ris v.
v.
Rideau v.
Texas,
su-
Estes v.
pra;
supra.
Handy
Maxwell,
v.
Sheppard
v.
proceed-
which
ings
utterly corrupted
by press cover-
Dowd,
717,
Irvin v.
In
366 U.S.
age and conducted in a circus-like atmo-
(1961),
Supreme
81 State, State, v. v. State, supra; Freeman Creel (Tex.Cr.App.1954), 593 v. 265 S.W.2d supra; 98 supra. cert. denied 347 U.S. Wallace v. (1954). showing.
L.Ed. made no such 1082 State’s contro- verting affidavits were sufficient to raise a criminal be To defendant demand ability the issue of com- community untouched tried in a purgators degree assess the judicial that our news is to demand media Article community. fantasy world. As we system function in a State, supra. Yet supra; Mansell v. : stated Morris State compurgator one was called as a witness operate and do not “Our courts cannot defense. testified as to any No one people deal with in a vacuum. Courts community prejudice against appellant. are To newsworthy. which crimes by appellant presented who The evidence require jurors trial of had never the issue of in marked publicized crime would venue stands con highly heard aof trast to the introduced impossible. de impractical be if not Certain- supra. fendant Adami v. ly, it never intended addi copies tion to of news introducing those who did not stories to be selected concerning crime, up the defendant in newspapers keep read or with current Ada- witnesses, mi elicited through testimony media. Jurors se- from nine events other if almost all of had formed their group, lected there are whom con from such group, regarding community prejudice clusions enough be called would not af speaking ter fifty ninety To hold otherwise would to between representative. residing other perpetrator very county. of a individuals
be to hold that State, supra; such as See also highly crime the assas- Freeman Ranso publicized governor any nette president, (Tex.Cr.App. sination of a S.W.2d 1975). could widely person known never be S.W.2d,
tried.” at 772. facts Other and circumstances must be majority refuses to examine the evi- taken into in determining consideration *15 hearing on appellant’s publicity dence adduced at whether has rendered the fair and improbable. of in order to determine exception bill of a defendant State, State, whether trial court abused its discre- In Morris v. supra; Adami Yet, State, supra; supra, tion. if this Court is to consider the and Clifford v. whole, precisely it is this evi- significant
record as a Court considered it that several in analyzing dence must be reviewed months which intervened between the commission action whether or not the court’s constitut- of the offense the trial of the defend- State, (ten, seven, Davis v. ed harmless error. 440 ant and ten months in each case, (Tex.Cr.App.1969). At In the case respectively). ap- S.W.2d 291 exception, of was pellant on the bill tried fourteen months after his testimony jurors prospective and numerous arrest. None introduced exhib- of the or of demonstrating appellant, its the existence consider- knew the the victims or County concerning any Bexar of the When publicity able witnesses. tried, already exhibits one Appellant’s change
the crime. included of venue had been Houston, many clippings granted and newsreel 190 miles newspaper away. noted, however, County, already
films. has been Bexar to which venue was As trans- ferred, 850,000 had a showing population has oc- of over mere 333,000 quali- of individuals excess curred does not establish existence and in State, Moreover, jurors. the introduction of fied In Freeman v. com- prejudice. parison, the for newspaper and newsreels is insuf- defendant was tried clippings highly publicized capital which to a murder of a upon deputy ficient demand change showing County, populated without a further sheriff Atascosa then of venue 18,696 by only eligible a persons of such news accounts with 9580 reason jurors. has been created. pervasive prejudice
82 247, unlikely 467 251 the defendants and so to be
In Johnson v.
S.W.2d
able to
defendant moved for
(Tex.Cr.App.1971),
objectively judge
guilt
their
or innocence
change
widely
of venue because of
dissemi-
process rights
their due
violated
wrote:
publicity.
nated
The Court
grant
the district court’s refusal to
a
change of venue.
ven-
change
“In connection with the
contention, it is well to observe that it
ue
A
review
the news accounts which
pop-
a
County
was shown that Dallas
has
appeared
County
reveals
Bexar
that al-
persons.
ulation of over one million
This
though they
tragic
reflect a
occurrence of
cry
is a far
from what was before this
great
public, they ap-
news interest to the
Rogers
155 Tex.Cr.R.
informative,
pear
dispassionate
to be
423,
141, and Richardson v.
236 S.W.2d
fair.
1003,
State, 126 Tex.Cr.R.
70 S.W.2d
Washington,
In Beck v.
Mr. Justice Clark
widespread publicity
where the
in a
states:
change
sparsely
county required
settled
“While this Court stands ready to cor-
of venue.”
rights,
rect violations of constitutional
Having presented
perva-
no evidence of
asking
also holds that ‘it is not
too much
asks
community prejudice, appellant
sive
showing
that the burden of
essential un-
This
presume
its existence.
this Court
fairness be sustained
him who claims
In Wallace v.
should not be done.
injustice
such
to have the
seeks
result
supra, we stated:
aside,
set
and that it be sustained not as a
re-
prejudice,
an inference of
“[A]nd
speculation
matter of
as a
but
demonstra-
venue, is not to be
quiring
U.S.,
558, S.Ct.,
ble reality’.” 369
at
82
at
newspa-
drawn from the fact alone that
8
quoting
L.Ed.2d at
United
have con-
pers published
vicinity
Handy,
States ex rel.
Darcy
U.S.
offense,
descriptive
tained articles
the D.C. Circuit conceded in United States *16 All of the evidence that wanted Haldeman, 254, 559 U.S.App.D.C. before began offer the trial on the merits (1976), that, circum- F.2d 31 in extreme is before this Court. It does not show that stances, prejudice right to a defendant’s he was entitled to a of venue. This panel impartial jurors trial a fair differently case should not be treated pretrial public- may presumed because other cases where evidence has been exclud- criminal ity. imagine It is difficult to because the when ed later offered pre- by more intensive prosecution attended shows no reversible error. We should con- trial of the than was the substance, sider not form. defendants, H. R. Halde- Watergate three man, Supreme and John Mitchell. Court of Texas in Fort John Erlichman pub- Taylor, (Tex.1968), collection of Worth v. 427 S.W.2d316 Included in the extensive arti- rule. licity gathered the defendants were followed similar That Court as- accusatory in na- sumed that the lower grant- cles hostile in tone and court erred in Nevertheless, ing a summary judgment the court found no rea- because a fact ture. public- issue was raised son, despite admittedly such massive but concluded that population should not remand the presume cause because a dif- ity, against D. was so aroused ferent result would not be Washington, C. reached. been shown. The
No reversible error has should be affirmed. judgment DAVIS, JJ., join in and W. C. VOLLERS dissent. PLESS, Appellant, Jerry Don Texas, Appellee. STATE No. 55567. Texas, Court of Appeals Criminal 3. Panel No. Dec. 1978. Rehearing En Banc Denied Feb.