Flores v. State, 45971
Citation | 493 S.W.2d 785 |
Decision Date | 28 March 1973 |
Docket Number | No. 45971,45971 |
Parties | Bentura FLORES, Appellant, v. The STATE of Texas, Appellee. |
Court | Court 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.
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:
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:
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Henley v. State, s. 53561-53566
...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......
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Bird v. State, 61832
...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 ......
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Johnson v. State, s. 04-81-00206-CR
...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 ......
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Chappell v. State, s. 48820
...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......