holding that defendant waived right to change of venue as a matter of law by proceeding to a hearing on the motion without objecting that he was entitled to the change as a matter of law, thereby allowing the trial court to hear the merits of the issue
How later courts described this case
- holding that defendant waived right to change of venue as a matter of law by proceeding to a hearing on the motion without objecting that he was entitled to the change as a matter of law, thereby allowing the trial court to hear the merits of the issue
- explaining that a defendant would be entitled to a change of venue as a matter of law if no controverting affidavit was filed by the State because, absent controverting evidence, there would be no issue of fact to resolve
- noting that, where the State failed to file controverting affidavits, a defendant may waive his right to a change of venue as a matter of law if he proceeds to a hearing without objecting that there is no issue of fact to be tried
- trial judge may impose reasonable time limits for voir dire
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Reed v. State, 1988 Tex. Crim. App. LEXIS 7 (1988)
591 S.W.2d 505, 516 (Tex. Crim. App. 1979), overruled on other grounds by Reed v. State, 744 S.W.2d 112
The opinion
CLINTON, Judge,
dissenting.
Elsewhere I have expressed the view that an indictment is sufficient to withstand an exception to form contemplated by Article 27.09, V.A.C.C.P. — that is, as required by Article 21.02, id., inter alia, the offense is alleged “in plain and intelligible words” — if it includes the requisite “element of offense” requirements of V.T.C.A. Penal Code, § 1.07(a) and tracks the broad statutory statement of the offense, incorporating a description of the prescribed method or manner by which the underlying facts suggest the offense was committed. 1 Accordingly, had the indictment in this case been drawn in terms of the statutorily stated element that enhances a killing to the capital offense of murder for hire or hire to murder, I would not be writing at all in this case — nor even participating — for it was submitted in 1978. 2 But, the drafter of the *536 indictment did not follow the critical statutory language and-, in failing to do so, in my judgment, the plain and intelligible words of the statute were converted into an ambiguous and uncertain phrase that constitutes the very heart of the allegation.
Concisely, the scrivener converted the transitive verb “commits” in the statutory phrase “commits the murder” to an intransitive verb “committed” in the indictment phrase “murder was committed."
Elaborating on the proposition, a standard meaning of the transitive verb commit is “to do or perpetrate, as an offense or crime.” Thus the statute denounces the person who intentionally or knowingly causes the death of another and “commits the murder” for hire. Here, then, had the indictment clearly alleged that appellant did “. . . cause the death of Paul Harvey Cantrell by choking and strangling him with a cord and cutting him with a knife; and committed the murder for remuneration and the promise of remuneration . . ” it would have truly tracked the statute and clearly been sufficient. 3 However, what was actually alleged is that appellant “. . i did then and there cause the death of Paul Harvey Cantrell by choking and strangling him with a cord and cutting him with a knife; and said murder was committed for remuneration . . . ” This departure from the statutory track immediately introduces some degree of vagueness, but when coupled with common usage of the word “cause” as in “cause the death” of the victim — to “bring about; effect” not necessarily by one’s own hand— the indictment no longer clearly alleges that appellant, himself, committed murder and committed it for remuneration or the promise of remuneration. Rather, it may easily be read to mean that in some culpable manner other than by his own hand appellant brought about the death of the victim by hiring the murderer.
Inserting the “party” allegation. further compounds the otherwise already indefinite language set forth. Thus it is said that appellant was “acting as a party with Paula Cantrell Derese and other persons to the Grand Jury unknown” in causing the death of the victim. Unless we are permitted to assume — and assuredly in a capital murder case we should not lightly so assume — the indictment may now be read as reporting that some unknown person, by choking and strangling the victim and cutting him with a knife, thereby caused death, and did so for remuneration and the promise of remuneration. In this light, appellant is charged with directly hiring, or being a party to hiring, for murder rather than murdering for hire.
Furthermore, by using “committed” as an intransitive verb in the past tense the draftsman fails to identify recipient of the remuneration or the promisee of it.
One can find other faults, but enough has been seen and explicated by me to conclude that the alleged offense is not set forth in plain and intelligible words. Therefore, I believe that the judgment should be reversed and the cause remanded for a new trial. 4 Accordingly, I respectfully dissent.
ROBERTS, J., joins.
. See generally Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979) (Dissenting opinion on State’s motion for rehearing). (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Generally I have been reluctant to participate in En Banc decisions in causes presented to the Court before I became a member. Here, however, the issue on which I write is purely one of ' construction of the written indictment, and that I did not hear oral argument on it is really of *536 little moment. My part in this cause, though, is limited to this ground of error.
. See 7 Texas Practice 34, Morrison & Blackwell, Criminal Forms §. 4.06; McClung, Jury Charges for Texas Criminal Practice 293-294. Compare 2 Texas Annotated Penal Statutes With Forms (Branch’s 3rd Edition) 17, para, (c).
. Being a matter of form, pursuant to Article 28.10, V.A.C.C.P., the indictment may be amended at any time before announcement for the new trial that should be ordered.