Henley v. State

¶1dissenting.

¶2The majority holds without discussing the evidence that the court abused its discretion in denying appellant’s motion for change of venue. It does so solely on the ground that the court did not let him put on evidence at a pre-trial hearing, even though the evidence presented by appellant in support of his motion was insufficient to merit a change of venue. Even if this evidence had been presented prior to trial, the court would not have committed error in denying a change of venue. Under such circumstances, any error committed by the court in delaying the hearing on the motion until the conclusion of testimony was harmless.

¶3The record is comprised of 5,557 pages in twenty-three volumes, accompanied by numerous exhibits. Briefly summarized, the record shows that on August 8, 1973, appellant was taken into custody by Pasadena police in connection with the murder of Dean Arnold Corll. After receiving a Miranda 1 warning from the municipal judge of Pasadena, appellant made to police officers a voluntary written statement which was admitted into evidence. In this statement he described his three year relationship with Dean Corll and the activities which culminated in the murders.

¶4Appellant stated that at the age of fourteen he was introduced to Corll who told him that he belonged to a Dallas organization engaged in the buying and selling of teen-aged boys. Corll offered appellant monetary rewards in exchange for his services in procuring young boys. Approximately a year after he became acquainted with Corll, appellant lured a male teenager to Coril’s home. There he tricked the young man into putting on handcuffs from which he could not escape. Corll then bound the boy with rope and gagged him with adhesive tape. Appellant was paid $200 for the boy. He later discovered that this victim whom he had procured had been homosexually raped and murdered by Corll.

¶5Beginning with this incident, appellant described for police a series of murders in which he had collaborated with Dean Corll and David Owen Brooks. All of the victims were handcuffed both hand and foot to a large board in Corll’s home where he homosexually raped and committed sodomy upon them. Appellant, Corll and Brooks subjected the victims to various forms of physical and sexual torture before shooting or strangling them to death. The nude bodies of the boys were transported in a wooden “body box” to three sites outside the city of Houston where, wrapped in plastic and tied with rope, they were buried in shallow graves. As he made these revelations, appellant led officers on a tour of disinter*77ment which ultimately resulted in the recovery of twenty-seven bodies.

¶6Appellant was indicted by the Harris County grand jury for the murder of six of the deceased individuals. On December 17, 1973, the Honorable William M. Hatten, Judge of the 176th District Court of Harris County, commenced hearings on appellant’s pre-trial motions. Appellant filed no motion for change of venue in Harris County. On January 16,1974, defense counsel filed a motion for continuance alleging that because of the “massive dissemination of potentially prejudicial material by all elements of the news media” appellant could not obtain a fair trial at that time. On February 1,1974, Judge Hatten, on his own motion, entered an order changing venue to the 175th District Court of Bexar County.

¶7On April 8,1974, pre-trial hearings began in the 175th District Court, the Honorable Preston H. Dial, Jr., presiding. The following day appellant filed a motion for change of venue in accordance with Article 31.03, V.A.C.C.P., supported by his own sworn affidavit and those of nine compurgators. Each affidavit stated that, in the compur-gator’s opinion, there existed so great a prejudice against appellant in Bexar County that he could not obtain a fair and impartial trial. Four controverting affidavits were filed by the State challenging both the appellant’s motion for change of venue and the ability of appellant’s compurgators to determine whether or not such a pervasive community prejudice against the appellant existed in Bexar County. See Article 31.04, V.A.C.C.P.

¶8On April 22, 1974, the court entertained appellant’s previously filed motion for change of venue and stated that it would not take evidence on the motion at that time, but offered to let him place in the record anything which he desired in the form of affidavits or hearsay statements. Under this ruling, appellant could have made an offer of proof under Article 40.-09(6)(d), V.A.C.C.P., which provides:

“(d) . . . The court, in its discretion, may allow an offer of proof in the form of a concise statement by the party offering the same of what the excluded evidence would show, to be made before the reporter out of the presence of the jury as an alternative method of causing the record to show such excluded testimony or other evidence, and in the event the record contains transcription of the reporter’s notes showing such an offer of proof the same shall be accepted on appeal as establishing what such excluded testimony or other evidence would have consisted of had it been admitted into evidence.”

¶9The court held its ruling on appellant’s motion in abeyance pending the outcome of voir dire examination of the prospective jurors, stating that if a jury panel of thirty-two could not be successfully chosen in Bex-ar County it would grant the motion for change of venue. Following the qualification of the panel of thirty-two, the court overruled the motion for change of venue.

¶10Prior to trial, appellant filed a petition for writ of mandamus in the Supreme Court of Texas seeking to compel the trial court to rule on the motion for change of venue prior to voir dire. The writ was denied.

¶11The State contends that the denial of a pre-trial evidentiary hearing on the motion for change of venue was necessary in order to prevent the proliferation of needless pretrial publicity.2 The State further contends *78that this decision on the part of the trial judge was made in response to the actions of appellant’s counsel whose object was to use the news media’s right to report the evidence adduced at pre-trial hearings as a vehicle for spreading the abhorrent facts of the crime in each city in which the defendant was to be tried until an impartial jury could no longer be selected there. The State urges that appellant’s counsel, at pretrial hearings in Houston, introduced so much damaging testimony that it prevented a trial from being held there. There was more incriminating evidence introduced by appellant in Houston than there was by the State during the trial on the merits. It was counsel’s aim, the State alleges, to so widely publicize the facts of the case as to ultimately render it impossible for appellant to be tried anywhere in the State of Texas.

¶12Although the trial court did not follow the accepted procedure in overruling appellant’s motion for change of venue without conducting an evidentiary hearing, it did not commit reversible error. This Court should consider appellant’s case as one in which the trial judge erroneously refuses to admit testimony before a jury but later permits the defendant to develop such evidence to determine if the error is reversible.

¶13When appellant’s motion for change of venue was entertained, the court informed him that it did not intend to hear evidence on the motion at that time. Article 31.04, supra, does not specify when the hearing on a motion for change of venue is to be conducted. Thus, no mandatory statute was violated. The court, moreover, permitted appellant to introduce anything he wished in the form of additional affidavits or hearsay statements as an offer of proof. When a defendant offers testimony during a trial and the court excludes it, error could be preserved by permitting the witness to testify outside the presence of the jury. If the court refuses to allow this, the proper way to show error is for the defendant to make an offer of proof. See Article 40.09(6)(d), supra.

¶14Although given the opportunity, appellant failed to make an offer of proof showing the substance of the evidence which he would have introduced at an evidentiary hearing and that such evidence would demonstrate the existence of a community prejudice against appellant so strong as to render a fair and impartial trial improbable. There was no proof by any witness presented at the motion for new trial to show such a prejudice.3

¶15While it is true that at the motion for new trial appellant introduced extensive evidence showing the existence of publicity in the community, the mere showing of publicity does not itself establish the existence of prejudice or necessitate a change of venue. Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), cert. denied 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978); Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1976); Garcia v. State, 513 S.W.2d 82 (Tex.Cr.App.1974); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Bridges v. State, 471 S.W.2d 827 (Tex.Cr.App.1971); Wallace v. State, 458 S.W.2d 67 (Tex.Cr.App.1970); Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Mendez v. State, 362 S.W.2d 841 (Tex.Cr.App.1963).

¶16Appellant requested that he be allowed to immediately introduce evidence on a bill of exception. Counsel was informed by the court that he would be given an opportunity to do so at a later time. Appellant was aware that the court did not intend to preclude such evidence but only to delay the *79hearing of the evidence to prevent undue publicity. Such a delay was not error. In Weeks v. State, 161 Tex.Cr.R. 202, 275 S.W.2d 685 (1955), the refusal of the court to retire the jury at the defendant’s request in order to perfect his bill of exception was held not to be error in view of the court’s recalling and tendering of the witness to the defendant at the conclusion of all the testimony for the purpose of permitting counsel to perfect his bill. This Court held that since the defendant was eventually afforded a full opportunity to perfect his bill of exception no harm was shown. Accord Pate v. State, 171 Tex.Cr.R. 126, 345 S.W.2d 532 (1961); Davidson v. State, 162 Tex.Cr.R. 640, 288 S.W.2d 93 (1956).

¶17As it had promised, the court in the present case allowed appellant an opportunity to make an offer of proof during the trial and to present evidence on his bill of exception at the conclusion of testimony. All of the evidence presented at that time is before this Court.

¶18Appellant’s application for change of venue was controverted by the State. Appellant, therefore, bore the burden of presenting evidence which would prove the existence of prejudice in the community. Absent such a showing, the trial court acted within the limits of its discretion in denying a change of venue. James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977); Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975); Mansell v. State, 364 S.W.2d 391 (Tex.Cr.App.1963).

¶19In Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975), this Court recognized that the question of change of venue is one of constitutional dimension. But there is no constitutional infirmity in a trial court’s denial of a change of venue if a defendant has actually received a trial by an impartial jury. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 103 (1962). The test of whether such an impartial jury has been obtained is whether outside influences affecting the community’s climate of opinion as to the defendant are so inherently suspect as to result in a probability of unfairness. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Adami v. State, supra; Bridges v. State, supra. It is incumbent upon this Court to determine, from all the facts and circumstances, whether appellant was afforded the kind of impartial jury contemplated by Sheppard v. Maxwell. This determination can properly be made by considering the answers elicited on the voir dire of the prospective jurors. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Freeman v. State, supra; Garcia v. State, supra; Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973); Wallace v. State, supra; Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967); McIntyre v. State, 172 Tex.Cr.R. 510, 360 S.W.2d 875 (1962).

¶20Appellant urges that the allegedly “lurid and pervasive” publicity that occurred in Bexar County could have had no other effect than to inspire prejudice against him among potential jurors. The record on voir dire reflects that one hundred and twenty-four prospective jurors were called. Of these, twenty-one were excused for reasons of health, age, or statutory exemption. Seven were excused because of an inability to follow some aspect of the law. Sixty-four were excused because they held established conclusions as to the guilt or innocence of appellant. This fact does not in itself demonstrate the inability of appellant to be tried by an impartial jury. In other cases where a substantial number of veniremen stated on voir dire that they believed the defendant was guilty, this Court has held that identifiable prejudice was nevertheless not shown. Adami v. State, supra (18 of 72 veniremen); Taylor v. State, supra (39 of 112); Handy v. State, 139 Tex.Cr.R. 3, 138 S.W.2d 541 (1940) (45 of 99).

¶21Fifty-four prospective jurors had read of the case in the newspapers, heard of it on television, or both. The mere fact that a venireman has read or heard of a case is not evidence of community prejudice nor is it grounds for disqualification. Freeman v. States, supra; Knight v. State, supra; Mor*80ris v. State, supra; McIntyre v. State, supra; Handy v. State, supra.

¶22In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court of the United States recognized that jurors should neither be expected to nor required to be ignorant of the facts and issues involved and that most of those best qualified to serve will have formed some impression as to the merits of the case. See also Freeman v. State, supra; Knight v. State, supra; Clifford v. State, 424 S.W.2d 233 (Tex.Cr.App.1968); Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1964).

¶23In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court of the United States upheld the robbery conviction of a defendant who was a notorious jewel thief and convicted murderer. The defendant moved for a change of venue alleging that because of pre-trial publicity the jurors were aware of his prior criminal record and of facts about the crime charged. After examining the testimony elicited on voir dire, the Court sustained the trial court’s denial of a change of venue holding that there was demonstrated no such hostility toward the defendant on the part of the jurors who served at trial as would suggest a partiality that could not be laid aside. The Court reached this conclusion despite the fact that some individuals who served on the jury recalled the robbery for which the defendant was being tried and that all of the jurors had knowledge of the defendant’s previous crimes. In observing that 20 of 78 potential jurors were excused because of pre-formed opinions as to the defendant’s guilt, the Court stated:

“This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.”

¶24Finally, the majority distinguished the defendant’s trial from those in Irvin v. Dowd, Rideau v. Louisiana, Estes v. Texas, and Sheppard v. Maxwell, in which proceedings were utterly corrupted by press coverage and conducted in a circus-like atmosphere. The trial of appellant in the present case, likewise, holds nothing in common with those earlier cases in which the “courthouse [was] given over to accommodate the public appetite for carnival.” 421 U.S., at 799, 95 S.Ct., at 2036.

¶25Contrary to appellant’s contention that publicity occurring immediately prior to trial aroused public passions against him, only three panelists said that they had read or heard of the case recently or over an extended period of time. Twenty indicated that the publicity to which they had been exposed occurred at the time of appellant’s arrest. Twenty-eight prospective jurors said they had read very little or nothing about the case and many could not recall what it was that they had read. Eight jurors who had been exposed to the media stated that they did not trust the press and placed no credence in what they had read. Noteworthy is the fact that only four individuals stated that they had read or heard a considerable amount of publicity concerning the crime.

¶26Among the twelve who were selected to serve on the trial jury, five stated that they had read nothing about the case. Two of these individuals had not listened to news reports on television. Five of the remaining seven said that they knew of the case but had no opinion about it and were completely uninfluenced by any publicity. Only two jurors indicated that publicity had made some impression on them, but both stated that they could disregard all that they had seen or heard and render a verdict based solely on the evidence presented. The fact that a juror has formed an opinion in the past will not serve to disqualify him if he satisfies the court that he can and will lay aside the opinion he has formed from hearsay or newspaper accounts and base his verdict exclusively on the testimony admitted at trial. Freeman v. State, supra; Adami v. State, supra; Scott v. State, 490 S.W.2d 578 (Tex.Cr.App.1973); Klinedinst *81v. State, 265 S.W.2d 593 (Tex.Cr.App.1954), cert. denied 347 U.S. 933, 74 S.Ct. 534, 98 L.Ed. 1082 (1954).

¶27To demand that a criminal defendant be tried in a community untouched by the news media is to demand that our judicial system function in a fantasy world. As we stated in Morris v. State :

“Our courts cannot and do not operate in a vacuum. Courts deal with people and crimes which are newsworthy. To require a trial of jurors who had never heard of a highly publicized crime would be impractical if not impossible. Certainly, it was never intended that jurors were to be selected from those who did not read newspapers or keep up with current events through other media. Jurors selected from such a group, if there are enough to be called a group, would not be representative. To hold otherwise would be to hold that the perpetrator of a very highly publicized crime such as the assassination of a president, a governor or any widely known person could never be tried.” 488 S.W.2d, at 772.

¶28The majority refuses to examine the evidence adduced at the hearing on appellant’s bill of exception in order to determine whether the trial court abused its discretion. Yet, if this Court is to consider the record as a whole, it is precisely this evidence which must be reviewed in analyzing whether or not the court’s action constituted harmless error. Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969). At the hearing on the bill of exception, appellant introduced testimony and numerous exhibits demonstrating the existence of considerable publicity in Bexar County concerning the crime. Appellant’s exhibits included many newspaper clippings and newsreel films. As has already been noted, however, the mere showing that publicity has occurred does not establish the existence of prejudice. Moreover, the introduction of newspaper clippings and newsreels is insufficient evidence upon which to demand a change of venue without a further showing that by reason of such news accounts a pervasive prejudice has been created. Freeman v. State, supra; Creel v. State, supra; Wallace v. State, supra. Appellant made no such showing. The State’s controverting affidavits were sufficient to raise the issue of the ability of appellant’s com-purgators to assess the degree of prejudice present in the community. Article 31.04, supra; Mansell v. State, supra. Yet not one compurgator was called as a witness by the defense. No one testified as to any community prejudice against appellant.

¶29The evidence presented by appellant on the issue of venue stands in marked contrast to the evidence introduced by the defendant in Adami v. State, supra. In addition to introducing copies of news stories concerning the crime, the defendant in Ada-mi elicited testimony from nine witnesses, almost all of whom had formed their conclusions regarding community prejudice after speaking to between fifty and ninety other individuals residing in the county. See also Freeman v. State, supra; Ransonette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975).

¶30Other facts and circumstances must be taken into consideration in determining whether publicity has rendered the fair and impartial trial of a defendant improbable. In Morris v. State, supra; Adami v. State, supra; and Clifford v. State, supra, this Court considered it significant that several months intervened between the commission of the offense and the trial of the defendant (ten, seven, and ten months in each case, respectively). In the present case appellant was tried fourteen months after his arrest. None of the jurors or prospective jurors knew the appellant, the victims or any of the witnesses. When appellant was tried, one change of venue had already been granted from Houston, 190 miles away. Bexar County, to which venue was transferred, had a population of over 850,000 individuals and in excess of 333,000 qualified jurors. In Freeman v. State, by comparison, the defendant was tried for the highly publicized capital murder of a deputy sheriff in Atascosa County, then populated by only 18,696 persons with 9580 eligible jurors.

¶31*82In Johnson v. State, 467 S.W.2d 247, 251 (Tex.Cr.App.1971), the defendant moved for change of venue because of widely disseminated publicity. The Court wrote:

“In connection with the change of venue contention, it is well to observe that it was shown that Dallas County has a population of over one million persons. This is a far cry from what was before this Court in Rogers v. State, 155 Tex.Cr.R. 423, 236 S.W.2d 141, and Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003, where the widespread publicity in a sparsely settled county required a change of venue.”

¶32Having presented no evidence of pervasive community prejudice, appellant asks this Court to presume its existence. This should not be done. In Wallace v. State, supra, we stated:

“[A]nd an inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained articles descriptive of the offense, or editorials denunciatory of the accused, provided the accounts are fair, not inflammatory, and apparently published for the purpose of informing the public of current events. . . . ” 458 S.W.2d at 70, quoting 16 Tex.Jur.2d, Criminal Law, Section 246 (1960).

¶33The United States Court of, Appeals for the D.C. Circuit conceded in United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), that, in extreme circumstances, prejudice to a defendant’s right to a fair trial by a panel of impartial jurors may be presumed because of pretrial publicity. It is difficult to imagine a criminal prosecution attended by more intensive pretrial publicity than was the trial of the three Watergate defendants, H. R. Halde-man, John Erlichman and John Mitchell. Included in the extensive collection of publicity gathered by the defendants were articles hostile in tone and accusatory in nature. Nevertheless, the court found no reason, despite such admittedly massive publicity, to presume that the population of Washington, D. C. was so aroused against the defendants and so unlikely to be able to objectively judge their guilt or innocence that their due process rights were violated by the district court’s refusal to grant a change of venue.

¶34A review of the news accounts which appeared in Bexar County reveals that although they reflect a tragic occurrence of great news interest to the public, they appear to be informative, dispassionate and fair.

¶35In Beck v. Washington, Mr. Justice Clark states:

“While this Court stands ready to correct violations of constitutional rights, it also holds that ‘it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality’.” 369 U.S., at 558, 82 S.Ct., at 964, 8 L.Ed.2d at 112, quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 100 L.Ed. 1331 (1956).

¶36The evidence introduced by appellant was insufficient to require a change of venue. Even if the evidence had been presented prior to trial, appellant’s motion, for change of venue should not have been granted. The refusal to grant a change of venue was harmless.

¶37All of the evidence that appellant wanted to offer before the trial on the merits began is before this Court. It does not show that he was entitled to a change of venue. This case should not be treated differently from other cases where evidence has been excluded because the evidence when later offered shows no reversible error. We should consider substance, not form.

¶38The Supreme Court of Texas in Fort Worth v. Taylor, 427 S.W.2d 316 (Tex.1968), followed a similar rule. That Court assumed that the lower court erred in granting a summary judgment because a fact issue was raised but concluded that it should not remand the cause because a different result would not be reached.

¶39*83No reversible error has been shown. The judgment should be affirmed.