Durrough v. State, 57347

• Decision Date: 08 March 1978
• Docket Number: No. 57347,57347
• Citation: 562 S.W.2d 488
• Parties: Fred T. DURROUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 488

562 S.W.2d 488

Fred T. DURROUGH, Appellant, v. The STATE of Texas, Appellee.

No. 57347.

Court of Criminal Appeals of Texas, En Banc.

March 8, 1978.

Gerald H. Goldstein, Van G. Hilley, San Antonio, court appointed, for appellant.

Bill M. White, Dist. Atty., Charles T. Conaway, Lucien B. Campbell and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder in which the death penalty was assessed.

We are confronted at the outset with glaring error that requires reversal under a long line of well-established precedent. Some cases present close issues, but this is not such an issue: the law here is clear, and leaves no alternative but to reverse the conviction and to remand this capital punishment case for a new trial.

The only ground of error we need to address asserts:

"The trial court erred in failing to grant a change of venue upon proper motion by appellant in compliance with Article 31.03, T.C.Cr.P., when same was uncontroverted by the State either in the form of affidavit or other evidence presented to contest said venue issue."

The record clearly supports appellant's contention. Appellant filed his motion for change of venue under Art. 31.03, V.A.C.C.P., supported by his own affidavit and the affidavits of two residents of the county, asserting that there existed in the county so great a prejudice against him that he could not obtain a fair and impartial trial in that county. Art. 31.03(1), supra. The record also reflects that the motion was timely presented to the trial judge and that he overruled the motion without hearing any evidence.

Although the State could have joined issue with appellant by filing controverting affidavits under Art. 31.04, V.A.C.C.P., this was not done. Had the State taken such action, the court would have heard evidence and the burden would have been on appellant to prove the existence of prejudice. James v. State, Tex.Cr.App., 546 S.W.2d 306; Adami v. State, Tex.Cr.App., 524 S.W.2d 693. Here, as in Skillern v. State, Tex.Cr.App., 559 S.W.2d 828, the State utterly failed to take the steps necessary to rebut the presumption of harm created by appellant's sworn motion and affidavits. Skillern v. State, supra, at 830 and 833. The State in its brief on appeal acknowledges that the cases of Flores v. State, Tex.Cr.App., 493 S.W.2d 785 (1973), and Wall v. State, Tex.Cr.App., 417 S.W.2d 59 (1967), stand for the rule that a motion for change of venue that complies with Art. 31.03, supra, and that is uncontroverted by the State, entitles the accused to a change of venue as a matter of law. The case before us is controlled by that rule.

Both Flores and Wall are recent cases and were decided by unanimous courts. The rule, however, is not of recent origin. It stems from the earliest days of this Court. In Davis v. State, 19 Tex.App. 201, 222 (1885), Judge Hurt, speaking for a unanimous court, wrote on this matter with these words:

" . . . if there be no affidavit of a credible person made controverting the affidavit of the defendant's supporting affidavits, the change (of venue) must be granted, because there is no issue between the parties."

Again, Judge Hurt, writing in Carr v. State, 19 Tex.App. 635, 655-656 (1885), in which the defendant alleged both statutory grounds for a change of venue and the State's affidavits only controverted one of those two grounds, said:

"There is, therefore, no issue between the state and the defendant upon the existence of such prejudice in the county as will prevent the defendant from obtaining a fair and impartial trial. This being the case, he was entitled to a change of venue."

In Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72 (1921), the rule was stated:

"The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. Moore v. State, 46 Tex.Cr.R. 57, 79 S.W. 565; Carr v. State, 19 Tex.App. 656, 39 Tex.Cr.R. 573; Davis v. State, 19 Tex.App. 222; Logan v. State, 39 Tex.Cr.R. 573, 47 S.W. 645; Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416."

In the instant case the State filed no controverting affidavits, and the trial court heard no evidence on the motion. Appellant was entitled to a change of venue as a matter of law.

The right protected by the statute is fundamental to our system of justice. The underlying constitutional basis for the statute and its application was well expressed by Judge Davidson in Randle v. State, 34 Tex.Cr.R. 43, 28 S.W. 953 (1894), and, although lengthy, that statement warrants repeating today:

"Our bill of rights provides that the accused in all criminal prosecutions 'shall have a fair trial by an impartial jury.' Article 1, Sec. 10. This language is of no doubtful significance. The trial shall be 'fair,' and the jury 'impartial.' 'Impartial' means 'not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Jove is impartial, and to both the same.' Webst. Dict. As thus defined, 'impartial' evidently means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause should not, must not, be prejudiced. The accused in this state, under our constitution and laws, is entitled to a 'fair trial by an impartial jury'; and there is no other method provided by which an...