Etheridge v. State

• Decision Date: 22 June 1994
• Docket Number: No. 71189,71189
• Citation: 903 S.W.2d 1
• Parties: Gary Wayne ETHERIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 1

903 S.W.2d 1

Gary Wayne ETHERIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 71189.

Court of Criminal Appeals of Texas.

June 22, 1994.

Rehearing Denied May 10, 1995.

Lloyd D. Stansberry, Alvin, Gregory L. Donnell, Angleton, for appellant.

Jim Mapel, Dist. Atty., and Mary Peter Cudd, Asst. Dist. Atty., Angleton, Robert Huttash, State's Atty., Austin, for State.

OPINION

MALONEY, Judge.

A jury convicted appellant of capital murder for intentionally causing the death of an individual during the course of either robbery, aggravated sexual assault, or kidnapping. Tex.Penal Code Ann. § 19.03(a)(2) (Vernon 1990). The jury affirmatively answered the submitted issues prescribed by article 37.071(b) of the Texas Code of Criminal Procedure and the trial court assessed punishment at death. Tex.Code Crim.Proc.Ann. art. 37.071(e) (Vernon 1990). Appeal to this Court was automatic. Id. art. 37.071(h). Appellant raises twenty-six points of error. ¹ We will affirm.

I. PRE-TRIAL MOTIONS

In his first point of error, appellant contends the trial court abused its discretion when it denied his motion for change of venue which alleged he could not receive a fair trial in Brazoria County due to extensive pretrial publicity. Tex.Code Crim.Proc.Ann. art. 31.03(a)(1). At a pretrial hearing on the motion, appellant presented two Brazoria County residents who testified that appellant could not receive a fair trial in that county, including appellant's sister-in-law who further testified that she was fired from her job because of her relationship to appellant. The State presented three Brazoria County residents who testified that appellant could receive a fair trial in that county. Appellant did not produce any testimony from television, radio, or newspaper employees regarding media coverage on the instant offense, nor did he produce any transcripts of television or radio broadcasts or any newspaper clippings regarding media coverage on the instant offense.

Appellant points to twenty-three venirepersons who had heard about the crime prior to being called for jury service; seven of the twenty-three served on the jury. However, only one of those seven stated that she had initially formed an opinion as to appellant's guilt, and she further stated that she no longer maintained her original opinion as to appellant's guilt and could go forward with the presumption of innocence. The trial court ruled there did not exist so great a prejudice against appellant that he could not receive a fair and impartial trial.

In deciding whether the trial court abused its discretion in denying a motion to change venue, we determine whether there existed such a prejudice in the community that the likelihood that the defendant received a fair trial by an impartial jury is doubtful. Beets v. State, 767 S.W.2d 711, 742 (Tex.Crim.App.1987) (op. on reh'g), cert. denied, 492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989); see also Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986).

Extensive knowledge in the community of either the crime or the defendant, without more, is insufficient to render a trial unconstitutional. Faulder v. State, 745 S.W.2d 327, 339 (Tex.Crim.App.1987). Appellant "must ordinarily demonstrate an actual, identifiable prejudice attributable to that publicity on the part of members of his jury." Beets, 767 S.W.2d at 743; see Faulder. Publicity about the case must be pervasive, prejudicial and inflammatory. Beets, 767 S.W.2d at 743; Phillips, 701 S.W.2d at 879; Demouchette v. State, 591 S.W.2d 488, 490 (Tex.Crim.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981). "The question to be asked is whether the publicity surrounding the case has permeated the community to such an extent that the prospective jurors' initial opinions cannot be set aside." Beets, 767 S.W.2d at 744.

While appellant has shown that several people had heard about the occurrence and existence of the crime, he has not sufficiently shown how this knowledge prejudiced his case. Appellant did not establish that whatever publicity existed permeated the community to such an extent that the venirepersons' initial opinions, if any, could not be set aside. Beets, 767 S.W.2d at 743. Thus, we cannot say the trial court abused its discretion in denying appellant's motion to change venue. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the trial court committed reversible error when it denied him access to prior jury service information maintained by the District Attorney. See Tex.Code Crim.Proc.Ann. art. 39.14. Appellant filed a pretrial motion requesting discovery of a "jury list" maintained by the District Attorney's office which contained:

the name of every juror who has been selected to serve on a jury in Brazoria County, how they voted in their particular case, the result and outcome of the particular case in which they sat as jurors, and other significant and valuable information concerning these Brazoria County residents....

Appellant's motion further asserted that "[b]ecause of the long-term existence and nature of this Jury List, it has become and is now a public record...."

At a hearing on the motion, the State claimed the requested records did not reveal how individual jurors voted in a particular case, but only the cause number, the charged offense, and the jury verdict. The State contended that such information was not discoverable because it constituted the State's work product. The trial court agreed, adding that the information was also not subject to discovery under the Open Records Act. Tex.Rev.Civ.Stat.Ann. art. 6252-17a, repealed by Act of May 22, 1993, 73rd Leg., ch. 268, § 46(1), 1993 Tex.Gen.Laws 998 (effective September 1, 1993).

We have previously held that "[t]he State has no obligation to furnish counsel for the accused with information he has in regard to prospective jurors." Martin v. State, 577 S.W.2d 490, 491 (Tex.Crim.App.1979). Further, if appellant believed that the information should be public, section eight of the Open Records Act provided a method to challenge the trial court's ruling.

At the time of trial, section seven provided, in part, that if a governmental body received a written request for information it considered exempt from the Open Records Act, but there has not been a determination to that effect, the governmental body must request an attorney general decision on the matter, otherwise the information is presumed to be public. Tex.Rev.Civ.Stat.Ann. art. 6252-17a § 7(a). A district attorney's office is a governmental body within the meaning of the Open Records Act. Op.Tex. Att'y Gen. No. JM-266 (1984). Section eight provided, in part, that if the governmental body refused to request an attorney general's decision on the matter, the person requesting the information could seek a writ of mandamus compelling the governmental body to make the information public. Tex.Rev.Civ.Stat.Ann. art. 6252-17a § 8(a).

In the instant case, the prosecution did not seek an attorney general's opinion under section seven of the Act, and appellant did not seek mandamus under section eight. See Espinoza v. State, 669 S.W.2d 736, 737 (Tex.Crim.App.1984). Because appellant failed to follow the procedures set out in the Open Records Act, he can not now complain. Therefore, nothing is preserved for our review. Redd v. State, 578 S.W.2d 129, 131 (Tex.Crim.App.1979). Appellant's second point of error is overruled.

II. VOIR DIRE

In his third point of error, appellant contends he was denied his right to compulsory process of service and effective assistance of counsel when the trial court sua sponte quashed seventy-eight subpoenas issued by appellant summoning the State's potential witnesses to appear at venire voir dire. U.S. Const. amends. VI & XIV; Tex. Const. art. I, § 10. Appellant claims the subpoenas were necessary in order to determine whether the venirepersons knew any of the State's potential witnesses.

An accused has a right to compulsory process for obtaining witnesses in his favor. Tex. Const. art. I, § 10; Tex.Code Crim.Proc.Ann. art. 1.05; Willis v. State, 626 S.W.2d 500, 504 (Tex.Crim.App.1979). Also the trial court has the right and the duty to impose reasonable restrictions on voir dire within the trial court's discretion. Cantu v. State, 842 S.W.2d 667, 687 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992).

Appellant does not claim that he was denied the right to call witnesses on his behalf during guilt/innocence. Nor does he contend that he was denied the opportunity to ask the venirepersons if they knew any of the State's potential witnesses. Because he was not denied the right to call witnesses in his favor during the trial on the merits, we hold that appellant was not denied his right to compulsory process. Tex. Const. art. I, § 10; Tex.Code Crim.Proc.Ann. art. 1.05; Willis, 626 S.W.2d at 504. Appellant's third point of error is overruled.

In his fourth and fifth points of error, appellant contends the trial court abused its discretion when it sua sponte excused venirepersons Raymond and Peirsol, both of whom appellant claims were not disqualified. See Tex.Code Crim.Proc.Ann. arts. 35.19 & 35.16(a)(2)-(4).

Upon the trial court's preliminary questioning, Raymond unequivocally stated that due to her religious beliefs she would automatically vote against the imposition of the death penalty regardless of the facts. Before excusing Raymond, the trial court allowed the State and appellant to respond, but neither party objected to Raymond's excusal or sought to question her.

Upon the trial court's preliminary questioning, Peirsol stated that based upon what he had read in the newspaper he had reached a...