Flores v. State, 45971

Citation493 S.W.2d 785
Decision Date28 March 1973
Docket NumberNo. 45971,45971
PartiesBentura FLORES, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Richard J. Clarkson, Odessa, for appellant.

J. A. Bobo, Asst. Dist. Atty., Odessa, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for sale of heroin. The jury assessed the punishment at eighteen hundred years.

Appellant contends the court erred in denying his motion for change of venue. The State urges that the motion was not accompanied by appellant's affidavit as required by Article 31.03, Vernon's Ann. C.C.P. 1, and was therefore defective.

On February 3, 1971, appellant filed a motion for change of venue. The motion was signed by appellant's court-appointed counsel but was not accompanied by appellant's personal affidavit. The motion was supported by the affidavits of fourteen citizens of Ector County who expressed their belief that discussion in the community and the news media of a grand jury report on local narcotics problems would make it impossible to obtain a fair trial by a disinterested jury. A copy of the grand jury report accompanied the motion and, on February 5, 1971, appellant filed stories from local newspapers and a transcription of a local radio interview with the District Attorney, all of which concerned narcotics traffic in Ector County and how Ector County had helped the problem by its juries returning large verdicts against violators. The copies were authenticated by affidavits of newspaper and radio personnel.

The State did not controvert the motion, and the motion was overruled on February 26, 1971.

On March 1, 1971, appellant filed his personal affidavit in support of the motion for change of venue. The State never filed a controverting affidavit, and the record reflects that the motion was taken up on the following day prior to the trial. Before the announcements of ready and selection of the jury, the record reflects the following occurred:

'THE COURT: The Court is overruling the motion for change of venue. I am overruling his motion for change of venue this morning. The last one had failed to have an affidavit from the defendant. As completely presented to the Court this morning I am overruling his motion for change of venue. Now, are there any other matters?'

Appellant urges that the court erred in overruling his motion, and he cites as authority Wall v. State, Tex.Cr.App. 417 S.W.2d 59. In Wall, this Court said:

'We still further observe that prior to trial the appellant filed his motion to change venue drafted in compliance with Article 31.03, V.A.C.C.P. and supported by affidavits. The motion was overruled. The motion was uncontroverted by the State either in the form of an affidavit or by the presentation of any evidence justifying the denial of motion, and there was not a waiver by appellant of a controverting affidavit. Under such circumstances, the appellant was entitled to have the venue changed and the Court erred in failing to grant the motion. Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72; Ross v. State, 93 Tex.Cr.R. 531, 248 S.W. 685; Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019,...

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8 cases
  • Henley v. State, s. 53561-53566
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 20 Diciembre 1978
    ...of venue as a matter of law, unless the motion is controverted by the State. Wall v. State, Tex.Cr.App., 417 S.W.2d 59; Flores v. State, Tex.Cr.App., 493 S.W.2d 785.5 In Parker v. State, 91 Tex.Cr.R. 68, 238 S.W. 943, we acknowledged that on a controverted motion for change of venue the tri......
  • Bird v. State, 61832
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 1 Mayo 1985
    ...to a change of venue as a matter of law when the prosecutor failed to file controverting affidavits. He relies upon Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973); and Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). See also Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978); Stapleton ......
  • Johnson v. State, s. 04-81-00206-CR
    • United States
    • Court of Appeals of Texas
    • 13 Abril 1983
    ...is controverted by the State. Henley, supra at footnote 4, citing Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967); Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973). (Emphasis Although appellant claims he first learned of the controverting affidavits only after he had tendered the testimony ......
  • Chappell v. State, s. 48820
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 5 Febrero 1975
    ...of venue. Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); and Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973). As to the contentions regarding the voir dire examination, a close perusal reveals that the majority relate to the court's fai......
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