Freeman v. State

Decision Date29 June 2011
Docket NumberNo. AP–76052.,AP–76052.
PartiesJames Garrett FREEMAN, Appellant,v.The STATE of Texas.
CourtTexas Court of Criminal Appeals

OPINION TEXT STARTS HERE

Patrick F. McCann, Houston, for Appellant.Robinson C. Ramsey, Special Prosecutor, San Antonio, Jeffrey L. Van Horn, State's Attorney, Austin, for State.MEYERS, J., delivered the opinion of the unanimous Court.

OPINION

In November 2008, a jury convicted appellant of the capital murder of Texas Game Warden Justin Hurst committed in March 2007. Tex. Penal Code Ann. § 19.03(a)(1). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced appellant to death. Art. 37.071, § 2(g).1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing appellant's twelve points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

FACTS

On Friday, March 16, 2007, Texas Game Warden Jonathan Blackburn was conducting surveillance in an area where residents had complained of shots being fired at night. He parked his truck on the side of the road with its lights off, and around 11:00 p.m., he saw a truck driving very slowly in his direction. He heard a single gunshot, which he thought came from a .22 caliber or smaller rifle. Blackburn intended to investigate the shot because it is illegal to fire shots or hunt from the side of the road.2 Blackburn drove toward the truck and activated his “red and blue lights” and in-car video camera system when he was within thirty to forty yards of it. The truck continued driving toward Blackburn, and rather than stopping when Blackburn activated his lights, the truck “sped off” once it passed him. Blackburn did not recognize the driver at that time and described him as a white or Hispanic male with a goatee and wearing a stocking cap.

Blackburn followed the fleeing truck down several gravel and paved roads at speeds ranging from 45 to 100 miles per hour (mph). He requested backup from the Wharton County Sheriff's Office. Constable John Szymanski and Deputy Constable Jeremy Hyde joined the pursuit in their marked patrol car with lights activated and took over the lead from Blackburn because their car was faster than Blackburn's truck. The constables' patrol car followed the fleeing truck at speeds up to 130 mph on the paved roads. They were joined by Deputies Mark Tijerina, Roddy Rodriguez, and Chris French, all in marked patrol cars with lights activated. It was obvious to Blackburn that the driver knew the area and was familiar with the roads, and eventually Blackburn realized that the driver of the fleeing truck was traveling in a circular route back to near where the pursuit began.

Not yet a part of the pursuit, Texas Game Warden Hurst communicated that he was going to attempt to set up a roadblock at an intersection. The fleeing driver was able to steer his truck around the roadblock without going into the ditch but sideswiped Hurst's truck in the process. Hurst joined the pursuit, which continued for approximately another 30 minutes on predominately gravel roads. According to Blackburn, there was no viable spot to force the driver to stop. The law enforcement officers were forced to follow and wait. Texas Department of Public Safety (DPS) troopers and the constables attempted to deploy spike strips several times, but the driver of the fleeing truck managed to avoid the spikes each time.

By this time, the dispatcher had completed a check on the fleeing truck's license plates. The license plates identified the truck as being registered to appellant. Blackburn and Szymanski were familiar with appellant. Blackburn had written him a ticket the previous year without incident but had not recognized him as the driver of the truck when the pursuit began. Officers believed the truck was stolen because the behavior of the driver was not consistent with what they knew about appellant. Appellant, however, was later identified as the driver.

Eventually, appellant drove over a set of spikes deployed by a DPS trooper. Appellant steered his disabled truck into a driveway in front of the Lissie Cemetery. He parked the truck with the driver's side door away from the pursuit vehicles, putting the truck between himself and the law enforcement officers. Blackburn and Rodriguez believed, as they parked their own vehicles, that appellant would attempt to flee. However, as appellant exited his truck, he began firing a handgun at officers. According to Blackburn, appellant's manner was aggressive, and he took a protected position from which he could see the three officers in front. Appellant continued to shoot the handgun until it seemed to be out of ammunition, and the officers returned fire. Appellant “disappeared” for a “second” and [came] back out with a long gun” that Blackburn identified as a semi-automatic rifle by the number of shots fired. Tijerina, who was trapped in his patrol car, immediately recognized the rifle as an AK–47 assault rifle and realized that his car would offer little protection from the rifle's bullets. Officers retreated to the backs of their vehicles for better cover. Appellant never exposed himself to open fire or moved out from behind the bed of his truck as he shot at officers. It “seemed to [Tijerina] like he was trying to kill somebody.”

Blackburn watched as Hurst left his cover and moved into the open where he had a clear shot at appellant. Hurst fired at appellant from a low, crouched position while other officers were not able to return appellant's fire. Appellant saw Hurst, aimed the rifle at him, and shot. Blackburn did not actually see Hurst fall when appellant shot at him but saw him lying face down on the ground afterward. Blackburn initially thought that Hurst was taking a more protected position flat on the ground but soon realized that he had been shot. Hurst died from a penetrating gunshot wound in his left arm and torso.

CHANGE OF VENUE

In his first point of error, appellant alleges that the trial court erred in denying his requested change of venue because he could not obtain a fair and impartial trial in Wharton County. Appellant states that [t]he single most important issue in this entire case was the trial court's refusal to recognize reality and move this high profile case out of Wharton County.” He alleges that “despite extraordinary evidence of the difficulty of obtaining a fair trial,” the trial court erroneously denied appellant's Motion for Change of Venue.

Appellant complains that the pretrial publicity began to taint the Wharton County jury pool almost immediately after the offense. According to appellant, because Wharton County has a small population of around 40,000 residents, local publicity and gossip concerning the offense was extensive. Appellant points out that the community quickly hosted fund-raisers and created a memorial fund to help the victim's widow. Appellant theorizes that the organizers' true intentions were to keep the victim's death fresh in the minds of the public, thus prejudicing the jury pool. He also alleges that false rumors from “known and trusted sources” quickly spread throughout the community.

Appellant also complains that the State's response to the Motion for Change of Venue exacerbated the prejudice against him. After appellant filed his motion and supporting affidavits, the State began collecting controverting affidavits. Appellant claims that in doing so, the State further publicized the murder. Appellant takes issue with the number of controverting affidavits collected and the manner in which some were collected. The State collected 372 controverting affidavits, which appellant characterizes as “an overt attempt to influence the judicial process” by keeping appellant's trial in Wharton County that demonstrates a “hundreds-large combination aligned against [appellant] and one that was so aligned by influential government officials.” Appellant argues that this large number of controverting affidavits is evidence of a prejudice in the county because there was a concerted public effort to influence the process and keep the trial in Wharton County.

Appellant additionally complains that thirteen of the fifty-one notaries who validated the affidavits also signed controverting affidavits themselves. Further, he complains that one of the notaries was an elected constable who was involved in the chase preceding the offense and ultimately testified during trial. This notary collected twenty affidavits while in uniform, which appellant argues “means that elected and other County officials were actively involved in collecting these affidavits and were asking people to try to keep the trial in Wharton County.” Appellant further argues that a uniformed official among those collecting affidavits made it more likely that people would have drawn negative inferences about appellant or might have been intimidated into signing an affidavit.

Appellant further complains that the sheer size of the venire pool evidenced the community prejudice against him. The trial court ultimately requested two special venires of 600 people each, for a total of 1,200 potential jurors. Appellant characterizes the size of the first special venire as evidence that the trial court was “suspicious” of whether appellant could receive a fair trial. Appellant claims that the need for a second special venire was further proof that he could not receive a fair trial in Wharton County.

The initial qualification of the venire was held on September 9, 2007, and fewer than 200 of the 600 called appeared in person. Twenty-nine potential jurors were excused before the venire was seated. The trial court conducted group voir dire with 162 qualified jurors. Only 28 of the 162 had not read about the case in the newspaper. At the conclusion of the trial court's voire dire, 121 potential jurors remained to...

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