Faulder v. State

*344 CLINTON, Judge,

concurring.

Concurring in the result, I write to track relevant developments in our case law pertaining to the third ground, claiming error in denial of his motion for change of venue, and then to comment on the manner in which the Court disposes of that ground.

The Sixth Amendment, made applicable to the states through the Due Process Clause in the Fourteenth Amendment, guarantees that in all criminal prosecutions the accused shall enjoy the right to “an impartial jury.” So do Article I, § 10, Bill of Rights, and Article 1.05, V.A.C.C.P. “[Wjhere because of prejudicial publicity .... the community from which the jury is to be drawn may already be permeated with hostility toward the defendant, .... under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case.” 1 Groppi v. Wisconsin, 400 U.S. 505, 509-510, 511 , 91 S.Ct. 490, 493, 494 , 27 L.Ed.2d 571 (1971). 2 Therefore, the constitutional issue raised by the motion is whether, on account of adverse pretrial publicity concerning his impending trial, appellant was entitled to a change of venue in order to be afforded a fair trial by an impartial jury.

Formerly the Court was “reluctant” to reverse for failure to change venue “in the absence of any showing that any prejudice against the accused found its way into the jury box.” Philpot v. State, 332 S.W.2d 323, 324 (Tex.Cr.App.1960). Illustrative is Moon v. State, 169 Tex.Cr.R. 14 , 331 S.W.2d 312 (1959):

“It has been the consistent holding of this Court [citatons omitted] that in order to require a reversal for refusal to change venue, there must be a showing that prejudice against the accused found its way into the jury box at his trial.”

Id., at 313. Thus quoting Moon in affirming a misdemeanor conviction in Mason v. State, 375 S.W.2d 916 (Tex.Cr.App.1964), the Court “likewise here find[s] no evidence in this record that prejudice against appellant found its way into the jury box at his trial.” Id., at 918 . 3 Also following Moon , in Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App 1967), the Court called it “identifiable prejudice,” id., at 604 .

By the time Mason made its way to the United States Court of Appeals for the Fifth Circuit, the Supreme Court had decided such cases as Rideau v. Louisiana, 373 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963); Turner v. Louisiana, 379 U.S. 466 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965); Estes v. Texas, 381 U.S. 532 , 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966). In the latter the Supreme Court admonished, “Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.” Id., at 362 , 86 S.Ct., at 1522 . Its specific holding: “[Wjhere there is a reasonable likelihood that the prejudical news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.” Ibid. So, in Pamplin v. Mason, 364 F.2d 1 (CA 5 1966), the court applied “the Irvin holding with the gloss of Rideau, Estes and Sheppard ” to hold:

“The test is no longer whether prejudice found its way into the jury box at the trial, as the Texas court stated in peti- *345 turner’s appeal. ... As we read the Supreme Court cases the test is: Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial.”

Id., at 5 . That is substantially what the Supreme Court would later elucidate in Groppi v. Wisconsin, supra.

Hard on the heels of Pamplin v. Mason, supra, the Court gave short shrift to a claim of prejudicial pretrial publicity because the record did not show he had exhausted his peremptory challenges, that any venireperson who had formed an opinion as his guilt of innocence served on the jury and because the Court had consistently held that publicity, alone, does not establish prejudice. Ward v. State, 427 S.W.2d 876, 881 (Tex.Cr.App.1968). Regarding Pamplin v. Mason, supra, the Court merely said that “as we construe the decision. ..., the record herein does not sustain appellant’s contention that he ‘was tried largely by the news media,’ or was denied due process of law by the court’s failure to change the venue.” Ibid.

Shortly, however, the Court correctly recognized that the matter of change of venue “has become a question of constitutional dimension under the recent decisions of the Supreme Court of the United States_ and under the decision... in Pamplin et al. v. Mason, 364 F.2d 1 .” Enriquez v. State, 429 S.W.2d 141 (Tex.Cr.App.1968). The Court observed that independent proof of media coverage had not been made, but that a good number of venirepersons stated they had seen or heard about the offense although none related exactly what. Thus an issue of outside influence of prejudicial pretrial publicity was not really raised. But instead of deciding the case on that basis, upon examination of some 1500 pages of voir dire the Court noted that the trial judge “exercise extreme caution and excused many of the venire, who under the usual and accepted practice would have been selected.” Id., at 141 .

Then there was Bridges v. State, 471 S.W.2d 827 (Tex.Cr.App.1971), in which the Court not only alluded to the “current test” of Enriquez, supra, but quoted extensively from Pamplin v. Mason, supra, pointed out that there was plenty “independent” proof of pretrial publicity about the defendant and an undercover police woman, but resolved the issue as follows:

“This, standing alone, would not authorize a reversal on the grounds that prejudice against this particular appellant was shown in the community. We do not have before us, as we did in Enriquez v. State, supra, a transcription of the examination of the venire. We have no way of knowing how difficult it was to secure a jury. The trial court [held the matter] in abeyance during the selection of the jury.... [to change venue] on his own motion if it became obvious that a fair trial could not be had. We have concluded that appellant failed to show reversible error in.... overruling his motion for a change of venue at the time the selection of the jury began.”

Id., at 829.

In those two cases the Court either never did not grasp the “presumptive prejudice” test enunciated in Pamplin v. Mason, or was content merely to give it lip service while continuing to look at voir dire for actual prejudice. See Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973), in which the Court calculated how many venirepersons were excused and why, quoted from Beck v. Washington, 369 U.S. 541 , 82 S.Ct. 955 , 8 L.Ed.2d 98 (1962) (“there could be no constitutional infirmity if petitioner actually received a trial by an impartial jury”), set out the ubiquitous excerpt from Pamplin v. Mason, supra, and paraphrased Irvin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961) (jurors need not be totally ignorant of current facts and issues of the day and can be expected to have formed some impression or opinion about an important criminal case), to find defendant was “tried by jurors who had no opinion as to his guilt,” id., at 772 .

*346 On the same June day in 1975 the Court delivered two strikingly contrasting unanimous opinions on the subject. Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975), and Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975).

Mitchell v. State, supra, is another typical short shrift disposition: appellant did not discharge his heavy burden of proving such prejudice in the community that the likehood of obtaining a fair and impartial is doubtful in that he “has not shown that he was required to exhaust his challenges and accept an objectional juror; nor is there a transcription of the voir dire examination of prospective jurors so that this Court might inspect it for evidence of prejudice in the community.” Id., at 514.

In Adami v. State, supra, the trial court conducted an extensive hearing and appellant presented a “pattern” demonstration of massive pretrial publicity. The judge deferred ruling, announcing that he would wait until after voir dire “in order to determine the difficulty of selecting a fair and impartial jury.” The Court said that action was not error. Even though the opinion reflects its recognition that “the test to be applied by the court is no longer whether prejudice found its way into the jury box,” it quotes treatment of the cases by Morris v. State, supra, and reports that the Court has considered the evidence and “read the voir dire of the jury panel and notices the lack of difficulty in securing a qualified jury,” to conclude that “when the test set forth in the cases is applied,” there was no abuse of discretion in overruling the motion for change of venue. Id., at 704.

Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976) is much like Mitchell v. State, supra, except there was a record of voir dire which the Court said it had read and “noticed the lack of difficulty in securing a qualified jury.” James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977), is a carbon copy of Garcia. Id., at 309 .

Finally, after setting out its admonition and holding, see ante, at 344-345, the Court turned Sheppard v. Maxwell on its head, viz:

“Thus, we find it proper that we consider the void dire of the prospective jurors to determine whether appellant was tried by an ‘impartial jury free from outside influences.’ See Adami v. State, supra; Pamplin v. Mason, supra.’’

Freeman v. State, 556 S.W.2d 287, 296 (Tex.Cr.App.1977). Accord: Von Byrd v. State, 569 S.W.2d 883, 890 (Tex.Cr.App.1978). Contra: Henley v. State, 576 S.W.2d 66, 71, 73 (Tex.Cr.App.1978); Meyers v. State, 39 Tex.Cr.R. 500 , 46 S.W. 817 (1898); Randle v. State, 34 Tex.Cr.R. 43 , 28 S.W. 953 (1894). 4

Where in a hearing on a motion for change of venue some witnesses testified that in their opinion on account of prejudicial pretrial publicity accused could not get a fair trial, while others expressed an opinion that a fair trial was possible, without any mention of voir dire examination the Court simply noted “the trial judge was presented with a fairly evenly divided choice” and therefore the court did not abuse its discretion in denying the motion. Ransonnette v. State, 522 S.W.2d 509, 512 (Tex.Cr.App.1975), and cases cited therein; *347 Barefoot v. State, 596 S.W.2d 875, 880-881 (Tex.Cr.App.1980) (also “instructive” to examine voir dire); Eckert v. State, 623 S.W.2d 359, 363-364 (Tex.Cr.App.1981) (examine evidence and voir dire to determine abuse of discretion); Ussery v. State, 651 S.W.2d 767, 772 (Tex.Cr.App.1983); see also Crawford v. State, 685 S.W.2d 343, 349-351 (Tex.App.—Amarillo 1984), PDR granted and reversal on other grounds affirmed, 696 S.W.2d 903 (Tex.Cr.App.1985).

Thus we have seen the Court move from “identifiable prejudice in the jury box” to “presumptive prejudice” tested by voir dire examination to “judge’s choice.” In Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979), it appears to recognize that sort of evolution, and settled on “judge’s choice.” Id., at 810-811 . Also: Demouchette v. State, 591 S.W.2d 488, 490 (Tex.Cr.App.1979), and McManus v. State, 591 S.W.2d 505, 517-518 (Tex.Cr.App.1979).

Here, however, the majority opinion presents a veritable cornucopia of mixed theories to uphold denial of the motion for change of venue. Pp. 338-339. First off it tells us something that should be selfevi-dent: no juror who served was disqualified from serving on account of pretrial publicity. It notes that “ordinarily” there must be “actual, identifiable prejudice,” yet then sets out the test applied for “presumptive prejudice.” It makes some fact findings following the lead of two decisions by the Supreme Court. 5 Finally, the majority purports to apply a “totality of circumstances” test but only says “we totally disagree” with quoted assertions of appellant, again mentions Bell and overrules his third ground (point) of error. The majority opinion, curiously, never says appellant “simply failed to demonstrate that the trial court abused its discretion in declining to grant change of venue.” See Bell v. State, supra, at 811, and cases cited there and ante.

In sum, whether it reversed judgments for failure to grant a motion for change of venue, notably Rubenstein alias Rubenstein v. State, 407 S.W.2d 793, 795 (Tex.Cr.App.1966), and Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978), or affirmed an adverse ruling in other cases such as Bell, Demouchette and McManus , this Court has continued to recognize vitality in the formulation enunciated in Rideau , et al. Here the majority fails to elucidate an existing dichotomy of presumptive prejudice and actual, identifiable prejudice, much less explain what ever happened to notions of *348 abuse of discretion by the trial court. There is not an edifying exploration of past decisions leading to a clear exposition of what test should be applied to prejudicial pretrial publicity, followed by an application to the circumstances of this cause. 6

Since, as has been demonstrated, there are problems in identifying which tests remain extant and applicable in particular situations today, the Court should at least make clear that the presumptive prejudice test as articulated in e.g., Henley, supra, is still viable in this jurisdiction, and that it does not require “prejudice in the jury box;” but that here, without regard to voir dire exmaination, evidence of adverse pretrial publicity is insufficient to raise it in this cause. Thus as to the merits the only issue is whether there are enough indications in the totality of circumstances to demonstrate actual prejudice such that the trial court should have granted a change of venue. While I believe the majority determines that issue on other than a comprehensive analysis of the circumstances, I agree that the trial court did not err in refusing to change venue.

Therefore, I concur in overruling the third ground (point) of error and join the judgment of the Court.

MILLER, J., joins in this opinion.

. All emphasis is mine throughout unless otherwise noted; above the latter two underscorings are in the opinion of the Supreme Court.

. While at page 21 the majority expresses agreement with a statement apparently taken from appellant’s brief and then directs the reader to "See Groppi v. Wisconsin," the reader must understand that the Groppi court wrote not of "inability to obtain an impartial jury,” but rather of methods to "assure an impartial jury [from] the community.... already permeated with hostility toward the defendant.” In other words, the temper of the community — not of venirepersons — is to be gauged.

.The Court also noted that it consistently held that "our statutes, which do not provide for a change of venue in misdemeanor cases, are not unconstitutional." Ibid. However, the Supreme Court would soon change that notion by holding a similar statutory prohibition in Michigan unconstitutional. Groppi, supra.

. ‘The law authorizing a change of venue proceeds upon the fact that, notwithstanding the most searching questions may be applied to the juror in regard to his bias or prejudice for or against the accused, or whether there is formed in his mind such a conclusion as to guilt or innocence of the accused as will influence him in finding a verdict, still there may be in the county such a prejudice existing as to render it improbable that the defendant could receive a fair trial. If it be conceded that all obnoxious jurors could be kept off the jury by being questioned in regard to challenges for cause, then it would seem the law providing for a change of venue would be useless, and should have no place in our procedure[.]“

Id., 28 S.W. at 954

“.... The prejudice in the county may be such that jurors will qualify themselves who are not impartial, and a jury obtained in whole or in part of such jurors. This is demonstrated by the record in this cause. Now, these instances show beyond question that, notwithstanding these tests, there may be such prejudice in the county that jurors will be qualify who have deliberately formed a conclusion that the accused is guilty, and should be punished. But, even should a jury be obtained, it does not follow that it did not contain prejudiced jurors." Id., 28 S.W. at 955 .

. They are Murphy v. Florida, 421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975), and Dobbert v. Florida, 432 U.S. 282 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977).

In Murphy the defendant is the notorious "Murph the Surf," and to appreciate what the Supreme Court decided one must understand the issues raised. Because of "extensive press coverage, apparently a motion for a change of venue was filed, heard and denied before trial. After a jury had been selected, defendant moved to dismiss the jurors on the ground that they were aware of one or the other of two prior convictions for theft and murder, respectively. He also renewed his motion for change of venue based on allegedly prejudicial pretrial publicity. Thus his contentions were twofold: the jury was composed of jurors who were not truly impartial and indifferent jurors, relying on Marshall v. United States, 360 U.S. 310 , 79 S.Ct. 1171 , 3 L.Ed.2d 1250 (1959), and their stated indicia of impartiality were overwhelmed by presumptively prejudicial adverse publicity under the principle of Irvin v. Dowd, supra, with the judicial gloss of Rideau, Estes and Sheppard , all supra. 421 U.S., at 796, 798 , 95 S.Ct., at 2034-2035 .

After reviewing the latter cases, the Supreme Court concluded:

They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.”

Id., at 799 , 95 S.Ct., at 2036 . Unable to discern enough indications the Supreme Court found, "Petitioner has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which he complains permits an inference of actual prejudice.” Id., at 803 , 95 S.Ct., at 2038 .

Dobbert decided "whether the significant amount of pretrial publicity concerning the crime [charged] deprived petitioner of his right to a fair trial;” the Supreme Court merely made a partial Murphy analysis to conclude, "Petitioner has failed to convince us that under the ‘totality of circumstances,’ Murphy, supra, the Florida Supreme Court was wrong in finding no constitutional violation with respect to the pretrial publicity.” 432 U.S., at 303 , 97 S.Ct., at 2303 .

. Compare the exhaustive examination and analysis of the authorities by Judge Reavley in Mayola v. State of Alabama, 623 F.2d 992, at 996-99 (CA 5 1980), which reflects a remarkable prescience of Part II in Murphy, supra.