Clifford v. State
| Decision Date | 10 January 1968 |
| Docket Number | No. 40887,40887 |
| Citation | 424 S.W.2d 233 |
| Parties | William Bond CLIFFORD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Warren Burnett, Odessa (on appeal), for appellant.
William Hunter, Dalhart, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is assault with intent to murder with malice; the punishment, 12 years.
The indictment alleged that appellant committed the assault in Deaf Smith County on or about April 8, 1966, by shooting Billy Joe Stevens with a gun.
The record shows without dispute that after shooting and killing his wife, at Canyon in Randall County, appellant drove to Hereford, in Deaf Smith County, and to Hereford Feed Mill where Billy Joe Stevens was employed and shot him at close range with a .22 caliber pistol loaded with hollow point bullets. Five shots struck Stevens in the head, one of which caused the loss of an eye. A sixth shot struck Stevens above the heart.
The evidence further reflects that appellant's wife had left him and had sued for divorce and he was under a restraining order 'to leave her alone and not to hurt her in any way.' Appellant testified that he had known since December 20, 1965, about Billy Joe Stevens having an affair with his wife. (The shooting occurred on April 8, 1966.)
The record further reflects that appellant had been indicted in Randall County for the murder of his wife; that the venue was changed to Denton County and that he had been tried and convicted. In the absence of the jury it was shown that a Denton County Jury had assessed his punishment at 2 years. (The sentence from which this appeal is prosecuted was cumulated with said 2 year sentence.)
Appellant testified to the effect that he did not remember anything that transpired concerning the shooting of his wife but realized that he had done something to hurt her, and testified:
'
We find no merit in appellant's ground of error No. 2 which complains of the refusal of his requested charge on aggravated assault.
Appellant's first and principal ground of error is: 'The trial court reversibly erred when it failed to sustain appellant's motion to change venue.'
Appellant's brief points out that the trial which gave rise to this appeal began on February 6, 1967, in Deaf Smith County where the offense was alleged to have occurred on April 8, 1966, and evidence was taken relevant to his motion to change venue on October 1, 1966.
Numerous news articles were introduced, the first of which described appellant as 'the son of a prominent Amarillo real estate agent,' and another referred to Billy Joe Stevens as 'the nephew of a former Randall County Judge.'
The newspaper, television and radio coverage included stories of the murder in Randall County and the shooting in Deaf Smith County on April 8, 1966; the denial of bail and the change of venue and the trial and result of the trial in Denton County.
The motion for change of venue was not finally overruled until some 4 months after the hearing of evidence when the voir dire examination of the jury panel was complete and a list of 36 jurors had been furnished for the exercise of peremptory challenges.
None of the jurors whose names appeared on such list had an opinion as to the guilt or innocence of appellant, and None had been challenged for cause or objected to by the defense.
The record does not reflect that either the state or the defense exhausted their peremptory challenges or that appellant was required to accept any juror that was objectionable to him.
Under the test applied by this court in the recent cases of Cotten v. State, Tex.Cr.App., 406 S.W.2d 452, and Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, the ground of error is without merit. See also Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Philpot v. State, 169 Tex.Cr.R. 91, 332 S.W.2d 323; Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312.
Appellant cites and relies upon Pamplin v. Mason, 364 F.2d 1, wherein the 5th Circuit Court of Appeals said:
'In this case, therefore, we apply the Irvin holding with the gloss of Rideau, Estes, and Sheppard. The test is no longer whether prejudice found its way into the jury box at the trial, as the Texas court stated in the petitioner's appeal. Mason v. State, Tex.Crim.App.1964, 375 S.W.2d 916. 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. As the Supreme...
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