Dimick v. State, NUMBERS 13-14-00426-CR

CourtCourt of Appeals of Texas
Writing for the CourtMemorandum Opinion by Justice Perkes
PartiesERIC DIMICK, Appellant, v. THE STATE OF TEXAS, Appellee.
Decision Date07 January 2016
Docket NumberNUMBERS 13-14-00426-CR

ERIC DIMICK, Appellant,

NUMBERS 13-14-00426-CR


January 7, 2016

On appeal from the 319th District Court of Nueces County, Texas.


Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes

Appellant Eric Dimick appeals his conviction for aggravated kidnapping.1 See TEX. PEN. CODE ANN. § 20.04 (West, Westlaw through 2015 R.S.). The jury found

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appellant guilty of aggravated kidnapping and sentenced him to sixty years' imprisonment. By six issues, which we construe as five, appellant argues: (1) the trial court erred when it denied his motion for a change of venue; (2) the trial court erred when it denied his motion to quash the indictment; (3) the police investigator's testimony included a legal determination which invaded the province of the jury; (4) the evidence is legally and factually insufficient to support the jury's rejection of his affirmative defense; (5) his sentence of sixty years constitutes cruel and unusual punishment and violates the Eighth Amendment of the United States Constitution and Article 1, section 13 of the Texas Constitution. We affirm.


A. Pre-Trial Venue Hearing

Appellant filed a motion for a change of venue, based on allegations of widespread media coverage and resulting prejudice. See TEX. CODE CRIM. PROC. ANN. art. 31.03 (West, Westlaw through 2015 R.S.). Along with his motion, appellant filed affidavits from six qualified potential jurors from Nueces County. All affiants opined that appellant would be unable to receive a fair trial in Nueces County, ostensibly because media coverage created a bias against him.

During the hearing on appellant's motion to transfer venue, appellant called seven witnesses who testified generally about the pre-trial coverage, specifically on television and in newspapers. Appellant's previous defense attorney and the attorney for co-

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defendant Colton Visor testified that they did not believe appellant could receive a fair trial in Nueces County based on discussions with the community and the media coverage. The attorneys, however, acknowledged the news coverage fairly and accurately reported on the respective court proceedings and the testimony during the pendency of the case. Pastor Grover Pinson testified that his discussions with his congregation and the community indicated that everyone presumed appellant was guilty. Appellant also introduced testimony and exhibits of news coverage posted on media websites. The online comments following the posted news articles generally reflected a negative perception of appellant and included statements regarding the punishment wished upon appellant.

The State offered two controverting affidavits as well as the testimony of two affiants, the Chief Deputy of Operations for the Nueces County Jail and the court administrator for Nueces County. The Chief Deputy testified that he did not read the online comments following the media coverage and believed that appellant could get a fair trial in Nueces County. The court administrator testified that none of the prospective jurors she dealt with while empaneling juries asked her any questions or expressed opinions about appellant's case. The trial court denied appellant's motion to transfer venue.

B. Trial

During the trial, the State presented evidence that appellant, along with Jacob Musich and Visor, stopped Musich's suburban close behind the eleven year old

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complainant and her thirteen year old brother.2 The complainant, who was on her bicycle, and her brother were walking their dog as appellant jumped out of the back of the suburban, grabbed the complainant, covered her with a jacket, and returned to the vehicle. The complainant resisted, and appellant dropped her. Musich picked up the complainant, shoved her into the vehicle, and the three men tied up and blindfolded the complainant and drove to Padre Island. The trio parked on the beach and Musich sexually assaulted the complainant. After the sexual assault, the complainant was released on an unlit portion of a Padre Island beach access road. It was after sunset and dark as the complainant ran along the access road towards park road 22. There were no other cars on the access road, but she saw traffic ahead on the park road. A driver spotted the complainant as she jumped in front of his pickup truck, screaming for him to stop. She was hysterical and wanted to speak to her mother. The complainant was without shoes, and the night was cool.

Appellant testified at trial. According to appellant, he was smoking synthetic marijuana preceding and throughout the abduction and sexual assault. He explained that after the sexual assault, as they were driving away from the beach back into the city, the complainant asked to get out of the vehicle. Musich stopped the vehicle and let the complainant out on a quarter-mile long beach access road connecting Park Road 22 to the beach at Padre Island. Shortly after releasing the complainant, Musich's vehicle ran out of gas, so appellant, Musich, and Visor pushed the suburban to a motel on Park Road

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22. After parking the suburban, the three men hid in the tall beach grass behind a motel for several hours, then pushed the suburban to a gas station.

Appellant conceded that he participated in the complainant's abduction and that he had driven Musich's vehicle at different times throughout the abduction and sexual assault. The jury found appellant guilty of aggravated kidnapping and sentenced him to sixty years' imprisonment. Appellant did not object to the sentence and did not file a motion for a new trial. This appeal followed.


By his first issue, appellant argues the trial court erred when it denied his motion for a change of venue. Specifically, appellant argues he was "faced with an unrelenting publicity before trial which created an atmosphere through the local media blogs that was so inherently prejudicial as to preclude a fair trial."

A. Applicable Law and Standard of Review

Article 31.03(a)(1) of the Texas Code of Criminal Procedure provides that a change of venue may be granted on a defendant's motion if "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc) (citing TEX. CODE CRIM. PROC. ANN. art. 31.03 (West, Westlaw through 2015 R.S.)). When outside influences affecting the community's climate of opinion regarding 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. (citing Henley v. State, 576 S.W.2d 66, 71 (Tex. Crim. App. 1978)).

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A defendant is entitled to a change of venue if he can show community influences which could affect the answers on voir dire or the testimony of witnesses at trial, or any other reason a jury cannot be fair and impartial. Id. at 72. Media attention and publicity do not, however, automatically establish prejudice or require a change of venue; jurors do not have to be totally ignorant of the facts and issues of a particular case. Teague v. State, 864 S.W.2d 505, 509 (Tex. Crim. App. 1993), abrogated by Robertson v. State, 871 S.W.2d 701, 712 n.13 (Tex. Crim. App. 1993). Rather, publicity about the case must be pervasive, prejudicial, and inflammatory. Beets v. State, 767 S.W.2d 711, 743 (Tex. Crim. App. 1987).

The trial court may use voir dire to help gauge the community climate; however, regardless of the successful qualification of a jury panel, the evidence adduced during the venue hearing may show that a change of venue is necessary to assure a fair trial. Henley, 576 S.W.2d at 71. An appellate court will not reverse a trial court's denial of a motion to change venue absent an abuse of discretion. Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995).

B. Discussion

The complained-of newspaper articles and television news clips summarized the history of the case, including the guilty pleas from the two co-defendants. The only potentially inflammatory information came from some of the blogs posted online following the news stories. However, the posted comments were not reflective of the opinions of the jury panel. Of the 300 member panel, only one venire member wrote any social media response to appellant's case. The news articles and television broadcasts were

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accurate and objective and were not inflammatory, pervasive, or prejudicial. We do not agree with appellant that the media attention surrounding his case, viewed as a whole, was inflammatory and prejudicial. The affidavits and testimony offered by the State adequately controverted appellant's assertions and countered that publicity surrounding appellant's case had been fair, not inflammatory, and had not fostered any hostile public attitude toward appellant.

A review of the jury panel general voir dire process also supports the trial court's ruling. Using the jury selection process to gauge the tenor of the community as a whole, the trial court could have found there was no pervasive public prejudice against appellant. Although appellant points to the ninety-one panel members who admitted to forming an opinion about the case,

complaints about the large number of venire members who had knowledge of the case, or who had formed an opinion about the case, are not sufficient to warrant a change of venue: That there were a large number of venire members who had heard of the case, or who could not set aside their opinions about the case, does not establish that pretrial publicity permeated the community to such an extent that it was impossible to seat a fair and impartial jury.

Freeman v. State, 340 S.W.3d 717, 724-25 (Tex. Crim. App. 2011); see also Gonzalez v. State, 222 S.W.3d 446, 452 (Tex....

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