DeBlanc v. State

• Decision Date: 24 October 1990
• Docket Number: No. 69580,69580
• Citation: 799 S.W.2d 701
• Court: Texas Court of Criminal Appeals
• Parties: David Wayne DeBLANC, Appellant, v. The STATE of Texas, Appellee.

Page 701

799 S.W.2d 701

David Wayne DeBLANC, Appellant, v. The STATE of Texas, Appellee.

No. 69580.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 24, 1990.

Rehearing Overruled Nov. 28, 1990.

Craig A. Washington, David L. Boddie, Houston, for appellant.

Michael R. Little, Dist. Atty. and Jerry E. Andress, Asst. Dist. Atty., Liberty, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

A jury convicted appellant, David Wayne DeBlanc, of capital murder. After the jury answered the special issues in the affirmative, the trial court assessed the death penalty as punishment. On appeal to this Court, appellant raises twelve points of error. We will affirm.

In his first point of error, appellant asserts that the trial court should have sustained his motion for a change of venue, see Article 31.03, V.A.C.C.P., without holding a hearing thereon because the controverting affidavits filed by the State pursuant to Article 31.04, V.A.C.C.P., ¹ in response to his motion are in improper form. We disagree.

The seven affidavits filed by the State aver that appellant's "affiants of said affidavit are not credible as they are prejudiced to said Defendant." The State's affiants also attack the credibility of appellant's affiants stating that "their means of knowledge are not sufficient to support and justify the statements contained therein." This Court has determined that wording identical to that found in the State's affidavits is sufficient to comply with Article 31.04. See Cockrum v. State, 758 S.W.2d 577, 582 (Tex.Cr.App.1988). See also Lundstrom v. State, 742 S.W.2d 279, 282 (Tex.Cr.App.1986) (holding that when a defendant puts on evidence concerning the reasons for the change of venue and allows the State to do the same, the issue becomes one of fact for the trial court and the defendant waives his right to assert that he is entitled to a change of venue as a matter of law.) Accordingly, appellant's first point of error is overruled.

In his second point of error, appellant asserts that the trial judge abused his discretion when, after conducting a hearing thereon, he refused to grant the motion for a change of venue which alleged that appellant was unable to receive a fair trial in Liberty County due to pretrial publicity.

At the hearing on the change of venue, appellant introduced testimony from several witnesses. Most of these witness testified that in their opinion appellant could not obtain a fair trial in Liberty County. But not all of appellant's witnesses agreed. A news director for a local newspaper was called by appellant yet he testified that news about the murder for which appellant was indicted "wasn't given that much play" in the newspaper. Appellant called the owner of another local newspaper and he testified that "considering the heinousness of the crime, I think it's been a fairly low level thing." His newspaper had not published anything concerning the murder. He also testified that the other papers in town had handled the matter "very professionally." One of the owners of a local radio station testified that out of the approximately 873 days between the trial date and the date of the murder, there were only fourteen days where the victim's death or appellant's trial had been mentioned on the air. He testified that it was the policy of his station not to sensationalize the trial.

After appellant's witnesses testified, the State introduced the testimony of twenty-five witnesses. Suffice it to say the State's witnesses testified that appellant could receive a fair trial in Liberty County. They based their conclusions on the lack of publicity and gossip that the media and the people of the county gave to either the murder or appellant.

The test to be applied in determining whether a trial court should grant a motion to change venue is whether the outside influences affecting the community climate of opinion as to a defendant are inherently suspect. Beets v. State, 767 S.W.2d 711, 742 (Tex.Cr.App.1989) (opinion on rehearing); Phillips v. State, 701 S.W.2d 875, 879 (Tex.Cr.App.1985) cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986). The defendant seeking a change of venue "bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful." Nethery v. State, 692 S.W.2d 686, 694 (Tex.Cr.App.1985) cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). Merely because a particular case is publicized in the media does not give rise to an automatic showing of prejudice such that a defendant is entitled to a venue change--jurors do not have to be totally ignorant of the facts and issues of a particular case. Murphy v. Florida, 421 U.S. 794, 801, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Eckert v. State, 623 S.W.2d 359, 363 (Tex.Cr.App.1981), overruled for other reasons in Reed v. State, 744 S.W.2d 112 (Tex.Cr.App.1988). Rather, for a defendant to prevail in his motion to change venue, he or she must demonstrate that publicity about the case is pervasive, prejudicial and inflammatory; that is, a defendant must demonstrate an "actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come." Ransom v. State, 789 S.W.2d 572, 578-579 (Tex.Cr.App.1989) cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990), citing Beets, 767 S.W.2d at 743 and Faulder v. State, 745 S.W.2d 327, 338 (Tex.Cr.App.1987). See also Eckert, 623 S.W.2d at 363-364; McManus v. State, 591 S.W.2d 505, 517-518 (Tex.Cr.App.1979); Freeman v. State, 556 S.W.2d 287, 296-298 (Tex.Cr.App.1977) cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978).

On appeal, the standard of review for this Court is whether the trial court abused its discretion in refusing to grant the change of venue. Ransom, 789 S.W.2d at 579. The introduction of the various witnesses' testimony at the hearing on the motion to change venue, made a factual dispute for the trial court's resolution as to whether appellant could receive a fair trial in Liberty County. The trial court found, and the record adequately supports the finding, that appellant could receive a fair trial. As such, we hold that the trial court did not abuse its discretion in this case when it denied appellant's motion for a change of venue.

Appellant, after trial began, filed a motion to recuse the judge; in his third point of error, appellant maintains that he should have been afforded a hearing on the merits of this motion with some judge other than the one presiding over his trial. ² Appellant relies upon Article 200a, Section 6, of the Texas Revised Civil Statutes, which provides in part that "[a] district judge shall request the presiding judge to assign a judge of the Administrative District to hear and assign motions to recuse such district judge from a case pending in his court." Appellant insists that the mandatory language of this Article mandates that he be provided a hearing before another judge whenever he presents a motion to recuse the presiding judge. Because such was not done in this case, appellant asserts that he is entitled to a new trial. See McLeod v. Harris, 582 S.W.2d 772 (Tex.1979). We cannot agree with appellant.

We hold that Article 200a, Section 6, must be read in conjunction with Rule 18a of the Texas Rules of Civil Procedure. That Rule provides, in part:

"At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case."

Failure to comply with the ten day notice provision of Rule 18a bars complaint on appeal of the denial of a separate hearing before another judge on the motion to recuse. Accord: Thibodeaux v. State, 726 S.W.2d 601, 605 (Tex.App.--Houston [14th Dist.] 1987, no pet.); Autry v. Autry, 646 S.W.2d 586, 588 (Tex.App.--Tyler 1983, no writ); Gonzalez v. Gonzalez, 659 S.W.2d 900, 901-902 (Tex.App.--El Paso 1983, no writ); Limon v. State, 632 S.W.2d 812, 815 (Tex.App.--Houston [14th Dist.] 1982, pet. ref'd). Rule 18a obviously presupposes that litigants should not be able to halt judicial proceedings at will by the simple invocation of the mandatory provisions of Article 200a, section 6. See Chastain v. State, 667 S.W.2d 791, 795 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd). In the case at bar, appellant failed to comply with Rule 18a and as such he will not be heard to complain on appeal of the denial of an opportunity to have his motion heard by a judge other than the one assigned to his case. ³

In his fourth point of error, appellant insists that the trial court erred when it refused to quash the indictment. The basis of appellant's motion to quash was that he was compelled to appear and testify before a Grand Jury that investigated the capital murder offense for which he was eventually indicted by another Grand Jury. ⁴ He asserts that this violated his Sixth Amendment right to an attorney and his Fifth Amendment right against compelled testimony along with the analogous rights found in Article I, Section 10 of the Texas Constitution.

We summarily dismiss appellant's Sixth Amendment claims since his right to an attorney under that Amendment did not arise until after he was indicted. United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984).

We also reject appellant's Fifth Amendment arguments. As stated by the Supreme Court: "Neither justice nor the concept of a fair trial requires that the Supreme Court establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence." Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409, ...