Esquivel v. State

• Decision Date: 09 January 1980
• Docket Number: No. 62779,62779
• Citation: 595 S.W.2d 516
• Parties: Rudy Ramos ESQUIVEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 516

595 S.W.2d 516

Rudy Ramos ESQUIVEL, Appellant, v. The STATE of Texas, Appellee.

No. 62779.

Court of Criminal Appeals of Texas, En Banc.

Jan. 9, 1980.

Donald W. Rogers, Jr., court appointed on appeal, Houston, for appellant.

Carol S. Vance, Dist. Atty., Michael C. Kuhn, James A. Moseley and Edward A. Dodd, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(1). Punishment was assessed at death.

On June 8, 1978 Officers Timothy Hearn and Murry Jordan of the Houston Police Department Narcotics Division received information that appellant possessed heroin. After conducting surveillance the officers approached appellant and several companions. Jordan attempted to search appellant. Appellant pulled a pistol and shot Jordan. Appellant then shot Hearn knowing at the time he was a police officer. Officer Hearn died as a result of the gunshot wounds and his death forms the basis of this prosecution. Appellant testified that he shot Hearn in self-defense.

In his first ground of error, appellant contends that the trial court erred in not granting his motion for continuance. Art. 29.03, V.A.C.C.P. provides that a criminal action may be continued upon motion of the State or the defendant for sufficient cause shown. A trial court's overruling of a motion for continuance must amount to an abuse of discretion in order to constitute reversible error. Nelson v. State, Tex.Cr.App., 505 S.W.2d 271. Trial on the merits began on August 14, 1978.

The record reflects that a hearing was held on appellant's motion. He produced witnesses who represented the major television stations and newspapers throughout Harris County. Their testimony shows that the factual details surrounding the shooting were thoroughly reported by the media the day of the shooting and the day after. Several newspaper articles noted appellant's prior criminal record and stated that he was on bond for possession of heroin at the time of the shooting. A news short included film footage from a 1953 trial in which appellant was prosecuted for rape. The week before trial a Tim Hearn Memorial Softball Game was given radio and t. v. coverage but no information regarding the appellant was disseminated in these broadcasts.

Appellant produced no witnesses to testify that he could not receive a fair trial. No motion for change of venue was filed. Upon cross-examination a number of appellant's witnesses testified that they knew of no reason why appellant could not receive a fair trial in Harris County. An examination of the exhibits introduced at the hearing on appellant's motion and the testimony of the witnesses indicates that all the information contained therein was factual and informative. Adami v. State, Tex.Cr.App., 524 S.W.2d 693; Morris v. State, Tex.Cr.App., 488 S.W.2d 768; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. We find that the evidence supports the trial court's implied finding that appellant would not be deprived of a fair and impartial trial as the result of any prejudice in the public mind caused by pretrial publicity. Demouchette v. State, Tex.Cr.App., 591 S.W.2d 488; Bell v. State, Tex.Cr.App., 582 S.W.2d 800, 810. No abuse of discretion is shown in overruling appellant's motion for continuance.

In his second ground of error, appellant contends that the trial court erred in denying his motion for a special venire. He maintains that "the Court in this case was without authority to refuse appellant's request for a special venire because Harris County, Texas, does not summon prospective jurors for the week, but rather on a daily basis."

Art. 34.01, V.A.C.C.P. provides:

"A 'special venire' is a writ issued in a capital case by order of the district court, commanding the sheriff to summon either verbally or by mail such a number of persons, not less than 50, as the court may order, to appear before the court on a day named in the writ from whom the jury for the trial of such case is to be selected. Where as many as one hundred jurors have been summoned in such county for regular service for the week in which such capital case is set for trial, the judge of the court having jurisdiction of a capital case in which a motion for a special venire has been made, shall grant or refuse such motion for a special venire, and upon such refusal require the case to be tried by regular jurors summoned for service in such county for the week in which such capital case is set for trial and such additional talesmen as may be summoned by the sheriff upon order of the court as provided in Article 34.02 of this Code, but the clerk of such court shall furnish the defendant or his counsel a list of the persons summoned as provided in Article 34.04." (Emphasis added.)

It can be seen from the text of the statute that where as many as one hundred prospective jurors have been summoned for the week in which the capital case is set for trial, and where a request for a special venire is made, the trial court shall either grant or refuse the motion. Upon refusal, the court shall require the case to be tried by the regular jurors summoned for the week. The power of the trial judge to order a special venire or not in cases where at least one hundred prospective jurors have been summoned for the week has been held to be a matter within his discretion. Smith v. State, Tex.Cr.App., 397 S.W.2d 70; Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720.

It is appellant's position that it is the procedure in Harris County to summon panels of prospective jurors on a daily basis. He argues that Art. 34.01 gives the trial court discretion to refuse a special venire request only where at least one hundred jurors have been summoned for "the week." Therefore, he continues, the trial court lacked authority to refuse his request because it did not summon the panel for the week.

The record shows that Harris County does summon prospective jurors to appear on a daily basis. The jury coordinator of the court, Robert W. Clogston, testified that hundreds of jurors are summoned daily in Harris County.

Former Art. 2118 (Tex.Laws 1945, Ch. 229, Sec. 1, at 314) provided for the selection of qualified prospective jurors out of those summoned for the week. That statute provided in part:

"On Monday, or other day, of each Court week, when a jury has been summoned and there are jury trials, the Court shall select a sufficient number of qualified jurors, in his discretion, to serve as jurors for the week. . . ."

The present statute ¹ provides in part:

"On any day when a jury has been summoned and there are jury trials the court shall select a sufficient number of qualified jurors, in his discretion, to serve as jurors. . . ."

The change in the statutory language of Art. 2118, supra, evidences a realization by our Legislature that in many metropolitan areas with multiple judicial districts, prospective jurors are now summoned and selected on a daily basis. The record in the instant case reflects that many more than one hundred prospective jurors are summoned on a daily basis in Harris County and literally thousands were summoned for the week in which the case was tried. We conclude that the decision of whether to grant a special venire was within the trial court's discretion.

Appellant maintains that if the trial court had discretion as to the granting of a special venire, then the court abused that discretion. He contends that providing him with a list of the persons summoned was an inadequate substitute for a special venire. Appellant argues that due to the great number of prospective jurors summoned daily he could not, without a special venire, intelligently exercise his peremptory challenges.

The record shows that in order to conduct voir dire the prospective jurors were brought into the courtroom in groups of 24 or 25 until a jury was chosen. Thus counsel for both sides were limited to that extent in evaluating the panel with their peremptories in mind. The trial court provided detailed questionnaires drafted jointly by both sides. These forms were filled out by jurors and returned to both parties. The record shows that 72 of these forms were filled out by prospective jurors. Individual members of the panels filled out these forms and the questionnaire was made available to counsel during voir dire of each prospective juror. Some 60 prospective jurors were questioned before a jury was selected. The transcript of the voir dire consists of 1,400 pages.

In the instant case, after denying the request for a special venire, appellant was furnished with a list of the persons summoned as provided in Art. 34.04, V.A.C.C.P. ² This action was in lieu of a special venire and in compliance with Art. 34.01, supra. We conclude that the trial court's action in following the statutory procedure after denying appellant's request for a special venire, did not constitute an abuse of discretion. Appellant's second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in denying his motion styled "Motion to Determine All Prospective Jurors for Jury Selection." The motion was filed following the denial of appellant's request for a special venire. In the pretrial hearing, appellant's counsel stated the purpose of the motion in the following manner:

"MR. ROGERS: I also have a motion which I'm filing now. It is a Motion to Determine all Prospective Jurors for Jury Selection. We're asking the Court to pick from the jurors summoned from Harris County, a sufficient number to pick the entire panel from which the jury for this case would be selected, for the reasons stated in the motion."

The trial court denied the motion after noting that appellant had been provided with a list of the prospective jurors who would be summoned for the week. In support of his contention that the trial...