holding that a ―jury consultant is not a ‗basic‘ tool of the defense. Selecting a jury is part of an attorney‘s stock-in-trade. Although a jury-selection expert‘s assistance would no doubt be helpful in nearly every case, such assistance is a luxury, not a necessity.‖
How later courts described this case
- holding that a ―jury consultant is not a ‗basic‘ tool of the defense. Selecting a jury is part of an attorney‘s stock-in-trade. Although a jury-selection expert‘s assistance would no doubt be helpful in nearly every case, such assistance is a luxury, not a necessity.‖
- holding Ake did not require jury consultant to be appointed for an indigent defendant because that was not a “basic” tool of the defense and the trial court could have reasonably found the appointment of an additional drug abuse expert was unnecessary
- stating the Fourth Amendment does not confer standing to challenge the search of a third party, and ruling appellant could not challenge the search of a vehicle’s passenger
- holding defendant waived his right to proceed ex parte concerning his request for an expert when he made no request to proceed ex parte
Written by the judges who cited it.
The opinion
JOHNSON, J.,
delivered a concurring opinion in which MEYERS and PRICE, JJ., joined.
I concur in the judgment of the Court that the trial court did not abuse its discre *273 tion in denying change of venue. I write to emphasize that the holding is firmly rooted in the words of the statute. 1 The majority bases its decision on Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988), ce rt. denied, 489 U.S. 1072 , 109 S.Ct. 1358 , 103 L.Ed.2d 825 (1989), and states that the state’s affiants, because of their personal belief that appellant could receive a fair trial in Cherokee County, could “infer from [their] belief ... that the appellant’s affiants must necessarily lack adequate means of knowledge with regard to their statements that appellant cannot receive a fair trial.” Ante, at 267. The Cockrum court adopted the reasoning in Lundstrom v. State, 742 S.W.2d 279 (Tex.Crim.App.1987)(opinion on reh’g). 2 The Lundstrom court stated that the state “may successfully controvert by means of a general denial of the ‘credibility ’ or ‘means of knowledge’ of the defendant’s compurgators, or it may, as in the instant case, generally deny that there exists ‘so great a prejudice against’ the defendant or a ‘dangerous combination against’ the defendant so that ‘he cannot expect a fair trial.’ ” Id. at 286 . Lundstrom points out that the text of the statute has remained essentially unchanged since its original passage in 1879, and that as early as 1888 this Court said, “To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter.’’Meuly v. State, 26 Tex.App. 274 , 9 S.W. 563, 564 (1888). The Cockrum Court said of the holding in Lundstrom, “By implication, that holding necessarily stands for the proposition that evidence which indicates that an appellant can receive a fair trial, if believed by the trial judge, is sufficient to defeat a motion for change of venue.” Cockrum at 583-84 . Cockrum was in agreement with the prior cases, which held that controverting evidence is, in fact, an attack on the means of knowledge although in direct, but it also acknowledged that the standard of attack on credibility through personal knowledge is impractical in modern settings. “In today’s more urban settings, it is sufficient for the State to merely present controverting evidence concerning the potential for a fair trial. It is no longer reasonable to expect the State to find compurgators who have actual knowledge of a defendant’s compurgators and their basis for knowledge” Id. at 583 . 3 While the attack on credibility of a compurgator may have been eroded by time as an appropriate measure of determining prejudice, an attack on the means of knowledge, directly or indirectly, is still a valid measure.
The facts in Cockrum are very similar to the facts here. In Cockrum , the state’s affiants were both local newspapermen. Cockrum, 758 S.W.2d at 582 . They both signed form affidavits which facially satisfied Tex.Code CRIM. Proc. art. 31.04. Id. During the hearing, the state’s affiants admitted that they did not know appellant’s affiants and could not say that appellant’s affiants were “prejudiced to said Defendant and their means of knowledge are not sufficient to support and justify the statements” of the affiants. Id. While effectively disavowing their affidavits, they also testified that they believed that appellant could receive a fair trial. Id. at 584 . Cross-examination of appellant’s affiants “cast some doubt on the validity of those *274 witnesses’ opinions.” Id. The state offered actual newspaper articles as exhibits. Id. We noted that the hearing on change of venue was held after voir dire, “giving the trial judge an additional barometer of community climate.” Id. Citing Lund-strom, we held that it is no longer reasonable to require the state to find affiants to directly challenge the credibility of other affiants: “In today’s more urban settings, it is sufficient for the State to merely present controverting evidence concerning the potential for a fair trial. It is no longer reasonable to expect the State to find compurgators who have actual knowledge of a defendant’s compurgators and their basis for knowledge.” Id. at 583 . The Court went on to say that, in such circumstances, the trial court did not abuse its discretion by denying the change of venue. Id. at 584 .
In this case, the state’s form affidavits facially satisfied Tex.Code CRiM. Proc. Art. 31.04. The state offered local newspaper articles as exhibits. There was a hearing on change of venue at which the state’s affiants, both local law enforcement officers, disavowed their affidavits. Each affi-ant went on to testify that he had lived in the county at the time of two prior capital murder cases, that a fair and impartial jury had been seated in each case despite intense pretrial publicity, and that in appellant’s case the levels of publicity, public concern, and public interest were all significantly lower than for the other capital cases. Both testified that, in their opinion, appellant could receive a fair trial in Cherokee County (S.F. vol.XV, at 206-231).
Under Lundstrom and Cockrmn, the state presented sufficient controverting evidence to permit a rational finder of fact to determine that no change of venue was necessary. There is no showing of abuse of discretion.
. Article 31.04 Motion May Be Controverted. The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant. Tex.Code Crim. Proc. art. 31.04.
. On rehearing, the majority adopted the dissenting opinion on original submission. Appellant Lundstrom filed five affidavits alleging inability to obtain a fair trial. The State filed a motion alleging that appellant could receive a fair trial and supported the motion with five affidavits of its own.
.Personal knowledge of the defendant’s com-purgators is not required by the language of art. 31.04.