Gonzalez v. State

• Decision Date: 09 May 2007
• Docket Number: No. PD-1750-05.,PD-1750-05.
• Citation: 222 S.W.3d 446
• Parties: Charles GONZALEZ, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

222 S.W.3d 446

Charles GONZALEZ, Appellant v. The STATE of Texas.

No. PD-1750-05.

Court of Criminal Appeals of Texas.

May 9, 2007.

Ruben P. Morales, El Paso, for Appellant.

J. Landon K. Schmidt, Asst. District atty., El Paso, Matthew Paul, State's Atty., Austin, for State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

The issue in this case is whether the trial court erred in denying a motion for change of venue after there was a pretrial, public dissemination of a surveillance video of the alleged offense. We hold that the trial court did not err.

I. BACKGROUND

A. Factual Summary

On October 29, 2002, appellant and his juvenile companion, Adam C., entered a Good Times Store in El Paso County. Adam carried a .22 rifle. The store was equipped with surveillance cameras, which recorded appellant and Adam entering the store, threatening the victim with the rifle, and demanding that he turn over "everything." After appellant took the cash, Adam shot the victim once in the chest, killing him. In an attempt to identify and locate the suspects, local newscasts aired the surveillance tape depicting the murder of the convenience store clerk. Numerous newspaper articles also covered the murder and the search for the culprits.¹ Appellant was recognized and reported to the police.

B. Trial

Appellant was arrested for capital murder. At a pretrial hearing on a defense motion for change of venue, appellant called two witnesses. The first, El Paso attorney Ronald Henry, testified that he did not believe that appellant could receive a fair trial in El Paso County. He based this conclusion upon his conversations with individual citizens, both in the courthouse and throughout the community. Henry also testified that the media coverage in this case was abnormally heavy, compared to a regular criminal case in the county. As examples of this, he used three newspaper articles from the time of the offense and the television broadcasts showing the surveillance video. Henry remarked that he had seen the video on television twice. He agreed on cross-examination that, in the year leading up to the venue hearing, he had not seen any media coverage mentioning appellant, other than in passing in articles about his fellow defendant, Adam.

The second of appellant's witnesses was private investigator Arnold Davis. Davis testified that he had become familiar with the case from seeing footage from the surveillance video on the news, which he described as "play[ing] the video repeatedly." He was unable to remember specifically how often it was played, other than saying that it was "at least every time the news was on." Davis also talked about the positive coverage that the victim in the case received after the murder. Finally, he testified that, through his conversations with people in the community, he believed that appellant would not be able to receive a fair trial in El Paso County. Under cross-examination, Davis acknowledged that he did not know how many people had actually seen the television footage or read the newspaper coverage of this particular case, nor could he make an informed judgment as to how other El Paso residents reacted to the coverage.

After hearing this testimony, the court stated, "[A]lthough [appellant's witnesses] testified that [the pretrial publicity] has touched certain people, I have no evidence before me as to what extent it has permeated into the community." The court denied the motion, finding it premature, and stated that appellant could reassert the motion after voir dire. At voir dire, roughly two-thirds (121 out of 180) of the jury panel members informed the trial court that they had heard of the case, and roughly one-third (58 out of 180) of the panel members stated that they had formed an opinion about the case that they could not set aside. After voir dire, citing the number of people who had either heard of the case or formed an unalterable opinion about the case, appellant re-urged his motion for a change of venue, which was again denied. Appellant was subsequently convicted and sentenced to life in prison.

C. Appeal

On appeal, appellant contested the trial court's decision to deny the motion for change of venue. The Court of Appeals reversed, holding that pretrial publicity resulted in "actual, identifiable prejudice" to appellant. The factors the court cited included the nature of the pretrial publicity, the connection of government officials with the publicity, the length of time between the publicity and the trial, the severity and notoriety of the offense, the impact of the publicity, and the candor and veracity of prospective jurors during voir dire.² Noting that "pictures often speak louder than words," the court also stated that the presence of the surveillance video moved the trial court's ruling outside the court's discretion.³ Based on these factors, which were derived from our opinion in Henley v. State, the court held that the prejudice was so great that Appellant could not obtain a fair trial in El Paso.⁴

D. Contentions of the Parties

The State contends that the El Paso Court of Appeals failed to grant proper deference to the trial court's decision to deny the motion to change venue. It argues that the trial court was in the best position to evaluate the extent of prejudice to the jury during voir dire and that the evidence of prejudice was, at best, conflicting, which placed the trial court's decision within the zone of reasonable disagreement. Consequently, the State claims that the court of appeals incorrectly substituted its own judgment for that of the trial court.

Appellant responds by arguing that the trial court abused its discretion by denying the motion to change venue. Appellant notes that he produced testimony, characterized by the trial court as truthful, that he could not receive a fair trial in El Paso, while the State did not present any evidence to the contrary. Appellant also argues that the trial court excused over one-third of the jury panel on the basis of the pretrial publicity concerning the murder. He argues that the present case is distinguishable from Neumuller v. State⁵ by the fact of the video of the crime being publicized.

II. Analysis

Section 31.03(a) of the Code of Criminal Procedure provides that a change of venue may be granted if the defendant establishes that "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." To justify a change of venue based upon media attention, a defendant must show that the publicity was pervasive, prejudicial, and inflammatory.⁶ Widespread publicity by itself is not considered inherently prejudicial.⁷ Indeed, even extensive knowledge of the case or defendant in the community as a result of pretrial publicity is not sufficient if there is not also some showing of prejudicial or inflammatory coverage.⁸ The mere existence of media attention or publicity is not enough, by itself, to merit a change of venue.⁹

The standard of review on appeal from a ruling on a motion for change of venue is "abuse of discretion." If the trial court's decision concerning a motion for a change of venue falls within the zone of reasonable disagreement, it will be upheld.¹⁰

A. Pervasiveness of the Publicity

The two primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and the voir dire process. The trial court in this case used both.

At the hearing, appellant introduced into evidence three newspaper articles, all written at the time of the offense. Appellant also presented the opinions of two witnesses on the amount of publicity that the case had generated, the surveillance video that was included in newscasts, and the effect of that publicity on the community at large. However, there was no evidence of how many times the video was shown nor of how many people actually saw the broadcast. Similarly, no evidence was presented as to how many people saw the newspaper coverage of the case.¹¹ The only evidence of how widespread the publicity's audience was, or the effect of the publicity on that audience, came from appellant's two witnesses at the venue hearing, as laid out above, which the trial court had discretion to consider or discount as it saw fit.

In regard to the voir dire process, appellant argues that the number of jurors that were unable to serve on a jury in this case demonstrates the extent to which pretrial publicity had permeated the community. Here, out of 180 members on the panel, 121 were familiar with the case, and 58 had formed an opinion that they would not be able to set aside. By appellant's reasoning, the fact that approximately two-thirds of the panel had heard about the case, and that approximately one-third of the panel had an opinion that could not be set aside, is reason enough to consider the entire community "infected" by the pretrial publicity. But this conclusion does not comport with existing caselaw. In the past, this Court and other appellate courts have found trial courts within their discretion when they seated panels where 69 veniremembers out of 109 had seen publicity on the accused's case,¹² where 44 out of 72 had seen publicity on the defendant's case,¹³ and where 52 panelists out of 64 had seen something on the defendant's case.¹⁴ Likewise, we have found trial courts within their discretion when they seated juries where 15 veniremembers out of 77 stated that they had an opinion that could not be set aside,¹⁵ and where 39 out of 112 held that same view.¹⁶

The trial court in this case heard responses from numerous jurors, both as to whether they had heard of the case and as to whether they would be able to be fair and impartial. The trial court was within its discretion to believe the jurors' assurances that 1) they had not seen any publicity on the case, or 2) that the...