# Devereaux v. State

> Court of Criminal Appeals of Texas · June 29, 1971 · 473 S.W.2d 525

URL: https://www.frixlaw.com/law-library/cases/9674188

## Case

- **Full name:** John Sylvia DEVEREAUX, Alias John Sylvia Mitchell, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 29, 1971
- **Citations:** 473 S.W.2d 525; 1971 Tex. Crim. App. LEXIS 1805
- **Precedential status:** Published
- **Opinion:** On rehearing by Onion
- **Judges:** Morrison, Onion
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674188

## Opinion text

ON APPELLANT’S MOTION FOR REHEARING
ONION, Presiding Judge.
Appellant vigorously urges this court to reconsider her initial contention that the trial court erred in failing to grant her motion for change of venue drafted in accordance with Article 31.03, Vernon’s Ann. C.C.P., and supported by the required affidavits and uncontroverted by the State. In light of the rule stated in 1 Branch’s Ann.P.C., 2d ed., Sec. 312, p. 356, that where the State makes no answer to such motion the accused is entitled to a change of venue, we shall discuss such issue. See also Wall v. State, Tex.Cr.App., 417 S.W.2d 59 and cases there cited.
The motion for change of venue was filed on August 4, 1969, and set for a hearing on October 13, 1969. The hearing appears to have been passed at appellant’s request. It was reset for November 24, 1969, and again passed at the request of the appellant. The qualified bill of exception reflects that appellant’s attorney indicated to the court the venue motion would not be pursued. Thereafter the appellant was given notice of a pretrial hearing as provided by Article 28.01, V.A.C.C.P., to be held on January 19, 1970. At such hearing it appears from the qualified bill of exception that'the appellant presented only a motion in limine and announced ready for trial without reservation. The motion for change of venue was not presented to the court or called to its attention. On January 21, 1970, the appellant announced ready for trial without mention of said motion and began the voir dire examination of the jury panel.
It appears at the conclusion of the voir dire examination either the State’s attorney or appellant’s counsel mentioned the venue motion to the court, the record being in some conflict as to which one. The prosecutor did state that if the motion was to be considered he wanted time to controvert the same. The trial judge noted that the motion had not been presented to him at the pretrial hearing and that it was his understanding that the motion had been waived. He denied the motion as being untimely presented.
Article 28.01, V.A.C.C.P., provides in Section 1 that:
“ * * * The pre-trial hearing shall be to determine any of the following matters:
“(1) * * *
“(7) Motions for change of venue by the State or the defendant; provided, however, that such motions for change of venue, if overruled at the pre-trial hearing, may be renewed by the State or the defendant during the voir dire examination of the jury; * * *”
*530 Section 2 of the statute provides that “any such preliminary matters not raised and filed within the time allowed will not thereafter he allowed to be raised or filed, except by permission of the Court for good cause shown. * * * ”
Since the appellant did not present her motion for change of venue at the pretrial hearing and took no action to secure a ruling until after the conclusion of the voir dire examination, we remain convinced of the correctness of our opinion on original submission.
Appellant’s motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674188. Public record. Not legal advice.