Bird v. State

• Decision Date: 01 May 1985
• Docket Number: No. 61832,61832
• Citation: 692 S.W.2d 65
• Parties: Jerry Joe BIRD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 65

692 S.W.2d 65

Jerry Joe BIRD, Appellant, v. The STATE of Texas, Appellee.

No. 61832.

Court of Criminal Appeals of Texas,

En Banc.

May 1, 1985.

Rehearing Denied July 10, 1985.

Douglas Tinker, Corpus Christi, for appellant.

Selden N. Snedeker, Dist. Atty. and James R. Mardis, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder in which the death penalty was imposed after the jury affirmatively answered the special issues submitted under Article 37.071, V.A.C.C.P. See V.T.C.A., Penal Code, § 19.03.

Appellant's previous conviction for this offense was reversed because the prosecutor in jury argument commented on appellant's failure to testify. Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975).

On appeal this time the appellant complains of the admission into evidence of a handcuff key, the failure of the trial court to grant his motion for change of venue when the State filed no controverting affidavits and because of prior publicity, the action of the court in permitting the bolstering of testimony of the deceased's widow, and in permitting the widow's testimony from the prior trial to be read into evidence in lieu of her personal appearance, the failure of the court to permit evidence at the guilt stage of the trial of appellant's opportunities to escape jail when he did not do so, the failure of the court to quash the indictment because of the ethnic makeup of the grand jury, the improper excusal of venireman Lewis and the failure of the court to grant a mistrial when the district attorney offered the jurors an opportunity to come to his office for coffee just prior to deliberations.

The sufficiency of the evidence to sustain the conviction is not challenged. A brief recitation of the facts is set forth in the previous opinion, Bird v. State, supra. Suffice it to say the record shows that on the night of January 11, 1974, two men appeared at the home of Victor and Jo Ellen Trammel in Cameron County. They gained entrance on the pretense that they had some guns for Mr. Trammel to consider purchasing. Jo Ellen Trammel identified the men as appellant Bird and his companion Korges. Trammel stated he did not desire to purchase any guns but would look at the guns. At this point appellant Bird displayed a pistol with a silencer attached. The pistol was then handed to Korges. The Trammels were informed they were being robbed.

Trammel was forced to open safes containing a large collection of antique guns. The couple was handcuffed, bound with tape and placed in separate bedrooms. Jo Ellen Trammel was given an injection to put her to sleep. She related the drug did not take effect but she feigned sleep. Later she heard a muffled shot and a "terrible groan that led me to believe that they had shot Mr. Trammel." She slipped one hand out of the handcuffs, untaped herself and crawled out a window. She ran through a plowed field and hid in a drainage ditch. After some time elapsed, she smelled smoke, but did not leave her hiding place until she heard fire engines approaching. The Trammel house was on fire. After the fire was extinguished, Vic Trammel's body, badly burned, was found inside the house. Among other things, his very valuable gun collection was missing. The doctor who performed the autopsy was unable to say whether Trammel's death was due to the two bullet wounds in his body or resulted from the fire, but theorized that Trammel had been shot first and that such wounds would have been fatal.

After an investigation, appellant and Korges were arrested. Harvey Lee Palmer was also arrested when it was learned that he was in possession of guns and other items taken from the Trammel house as well as a small bag containing handcuffs and tape. Palmer, a State's witness, testified appellant requested he store these goods.

At the scene Texas Ranger Bruce Casteel found two empty Coleman fuel cases and a .22 caliber semi-automatic pistol with a silencer attached.

In two grounds of error appellant contends the trial court erred in failing to change venue when no controverting affidavits were filed by the State, and where because of prior publicity he could not receive a fair trial in Cameron County.

Appellant first argues that after he filed his motion for change of venue supported by affidavits as required by Article 31.03, V.A.C.C.P., he was entitled to a change of venue as a matter of law when the prosecutor failed to file controverting affidavits. He relies upon Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973); and Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). See also Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978); Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978).

When appellant's motion for change of venue was filed, it was not supported by affidavits as required. See Article 31.03, supra. The deficiency was pointed out, and over objection the court gave appellant time to secure the necessary affidavits. These affidavits were not filed until the hearing on the motion. Until that time the State had nothing to controvert.

Immediately prior to the hearing on the venue motion appellant's counsel stated:

"I don't have any objection to the court considering the Motion for Change of Venue as though a controverting affidavit has been filed by the District Attorney's office."

At the hearing four members of the news media testified under oath that in their opinion that appellant could get a fair trial in Cameron County. The sworn testimony controverted the affidavits filed by appellant.

A properly filed and supported motion for change of venue must be granted as a matter of law unless, the State files a controverting affidavit (Article 31.04, V.A.C.C.P.), the defendant waives the necessity of a controverting affidavit or a hearing is held and evidence presented on the issue. McManus v. State, 591 S.W.2d 505, 516 (Tex.Cr.App.1979); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).

In McManus this Court wrote:

"When there is no issue of fact to be determined by the trial court, and no place for its exercise of discretion, it must grant the defendant's motion. Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978). This is the reason it is stated that in this situation a defendant is entitled to such change as a matter of law.

"However it is clear that a defendant may waive his per se right to a change of venue. If the State has filed no controverting affidavit, and the defense proceeds to a hearing without objecting that there is no issue of fact to be tried and that he is thus entitled to the change as a matter of law he waives his right to the per se change of venue. Puryear v. State, 510 S.W.2d 356 (Tex.Cr.App.1974); Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974); see also Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978) (footnote # 9). Where the defendant, without such objection, allows the trial court to hear the merits of the issue and to thus exercise its discretion in determining the issue of fact, he cannot thereafter argue that no issue of fact was raised and that he was entitled to the change as a matter of law." Cf. Wall v. State, 417 S.W.2d 59, 63 (Tex.Cr.App.1967).

Under the circumstances presented appellant was not entitled to a change of venue as a matter of law.

Appellant also advances the claim that as a result of publicity he could not get a fair trial in Cameron County. The appellant directs our attention to numerous exhibits including newspaper clippings and television news transcripts, etc., but does not brief the contention or organize the evidence to support his assertion. We have examined the evidence and find most of the publicity refers to the prior trial three years before. We have also examined the voir dire examination of the jury panel. We cannot conclude the court erred in refusing to grant the motion for change of venue.

Appellant argues in four grounds of error that a handcuff key, State's Exhibit No. 59, was improperly admitted into evidence because the chain of custody had not been properly laid, that the admission was in violation of the granted motion to suppress evidence, that the prosecutor had agreed evidence seized as a result of appellant's arrest would not be introduced, and that the trial court and appellant were misled by the prosecutor's misconduct.

Ranger Casteel detailed the steps of his investigation. He stated that the day after appellant was booked into the Cameron County jail he had gone to the jail to examine appellant's property inventory, and among the property had found a handcuff key. When the key was offered, appellant's counsel took Casteel on voir dire examination. It was established that Casteel was present when appellant was arrested in Corpus Christi, but other officers took him to the Corpus Christi city jail. Casteel was not present at the booking but knew that the city jail had a booking procedure where a prisoner's property would be inventoried. Casteel later transported appellant and a bag containing his property to Cameron County. He did not examine the property in the bag. After taking appellant before a magistrate in Cameron County, appellant was released to other officers who took him to the Cameron County jail. Casteel was not present at the booking, and did not come to the jail until the following day. It was then he found the key among appellant's property which had been kept in a cabinet or lock box. On voir dire examination he acknowledged that law enforcement personnel often have handcuffs and keys there, that appellant had been booked into two different jails and his property handled by different law enforcement personnel. Casteel testified appellant's other property, including the knife which the parties agreed to admit, was listed on the back side of the booking card or sheet while the handcuff key was listed on the front side. Appellant's counsel...