Henley v. State, s. 53561-53566

• Decision Date: 20 December 1978
• Docket Number: Nos. 53561-53566,s. 53561-53566
• Citation: 576 S.W.2d 66
• Parties: Elmer Wayne HENLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 66

576 S.W.2d 66

Elmer Wayne HENLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 53561-53566.

Court of Criminal Appeals of Texas, En Banc.

Dec. 20, 1978.

Rehearing Denied Jan. 24, 1979.

Will Gray, Terrence A. Gaiser, Edwin F. Pegelow, Houston, Rudy Esquivel, San Antonio, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Don L. Lambright, Asst. Dist. Attys., Houston, Lucien B. Campbell and Douglas C. Young, Asst. Dist. Attys., San Antonio, for the State.

Before the Court en banc.

OPINION

PHILLIPS, Judge.

The following opinion was largely the work of the late Honorable Howard P. Green, Commissioner of the Court of Criminal Appeals.

In a single trial before a jury appellant was convicted for murder with malice in six cases. See Articles 1256 and 1257(b), V.A.P.C., 1925. Punishment was assessed by the jury at 99 years in each of the six causes. The court ordered that the sentences run consecutively.

In grounds of error two and three appellant contends the trial court erred in overruling his motion for change of venue without affording him a pretrial evidentiary hearing in violation of Articles 31.03 and 31.04, V.A.C.C.P., and due process of law.

On December 17, 1973, approximately four months after appellant was indicted by the Harris County grand jury for six of the highly publicized mass, homosexual rape and torture murders, Honorable William M. Hatten, Judge of the 176th District Court, Harris County, commenced hearings on appellant's numerous pretrial motions in Cause No. 198,892. Appellant did not file a motion for change of venue from Harris County but filed a motion for continuance asserting that "Because of the massive dissemination of potentially prejudicial material by all elements of the news media . . . the defendant cannot obtain a fair trial at this time." Finding "too great a prejudice" existing against appellant in Harris County and all adjoining counties, Judge Hatten on his own motion ¹ ordered a change of venue in Cause No. 198,892. ² Judge Hatten transferred the case to the 175th Judicial District in San Antonio, Bexar County, where it was assigned No. 74CR-424.

Honorable Preston H. Dial, Judge of the 175th District Court began pretrial hearings on April 8, 1974. The following day appellant filed a motion for change of venue in compliance with Article 31.03, V.A.C.C.P. Appellant's motion was supported by his sworn affidavit and sworn affidavits of nine Bexar County citizens, all of which asserted that "there does in fact exist in said Bexar County, Texas so great a prejudice against him that the said ELMER WAYNE HENLEY, JR., Defendant, cannot obtain a fair and impartial trial of said cause in said County." On April 22, 1974, following the State's filing of four sworn affidaits controverting appellant's motion for change of venue, ³ the trial court advised appellant that:

"It is this Court's intention not to take evidence on the Motion to Change Venue at this time. I intend to attempt to select a Jury and if that can be done successfully, then I will overrule your Motion for Change of Venue; but, if we cannot select a Jury successfully here in Bexar County, then I will grant your Motion."

Appellant was not allowed to introduce evidence on a bill of exception to the court's ruling that no pretrial hearing on change of venue would be conducted. On May 13, 1974, appellant filed a motion for leave to file and a petition for writ of mandamus in the Supreme Court of Texas to compel a ruling by the trial court on his motion for change of venue. The petition was denied. On May 13, 1974, when the consolidated cases were called for trial, appellant again requested that the court rule on his motion for change of venue. The court refused.

Following the examination of 124 venire persons, which resulted in the selection of 32 persons as the jury panel from which the jury was ultimately selected, the court stated:

"THE COURT: That completes the qualification of the Jury Panel.

"MR. GRAY: Over our objection and exception, Your Honor.

"THE COURT: I understand. The Motion for Change of Venue is now denied.

"MR. GRAY: Note our exception, Your Honor. We would like to present proof, at this time, in support of our Motion for Change of Venue, for our Bill of Exception.

"THE COURT: That will be denied.

"MR. GRAY: Note our exception."

Appellant was tried and on July 15, 1974, a guilty verdict of murder with malice was returned in each of the six causes. On July 25, 1974, appellant filed a motion for new trial alleging, among other things, that the trial court committed reversible error in refusing to grant appellant an evidentiary hearing, in advance of trial, on his motion for change of venue. At the hearing on appellant's motion for new trial the trial court allowed appellant to introduce evidence in support of appellant's bill of exception to the trial court's overruling of his change of venue motion.

The issue on appeal is not whether the trial court erred by not granting appellant a change of venue, nor whether the trial court erred in delaying its ruling on appellant's motion for change of venue until voir dire had been conducted. The precise question to be decided is this If a defendant timely files a properly verified motion for change of venue under Article 31.03, V.A.C.C.P., is it an abuse of discretion and a denial of due process for the trial court to overrule the motion without affording defendant a pretrial hearing to present evidence in support of the motion?

A criminal defendant is guaranteed a fair trial by an impartial jury. Article 1, Section 10, Texas Constitution; Sixth Amendment to the United States Constitution; Article 1.05, V.A.C.C.P. Due process provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of venue. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

Article 3, Section 45, of the Texas Constitution provides:

"The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose."

The history of Chapter 31, V.A.C.C.P., demonstrates the tenacity with which the Texas Legislature has discharged its obligations under the above provision. Articles 31.03 and 31.04, ⁴ V.A.C.C.P., the provisions controlling the disposition of this case, provide, in pertinent part, as follows:

"A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, The truth and sufficiency of which the court shall determine:

"1. 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; and

"2. That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial.

"The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant." (Emphasis added.)

Apart from the venue statutes, as an additional safeguard to ensure an accused an impartial jury and fair trial, the Legislature has provided that an individual juror may be challenged for cause under Article 35.16, V.A.C.C.P., for the following reasons:

"9. That he has a bias or prejudice in favor of or against the defendant;

"10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged; . . ."

In the instant case the trial court refused to conduct a pretrial evidentiary hearing as mandated by the language of Articles 31.03 and 31.04, V.A.C.C.P., on appellant's controverted motion for change of venue. ⁵ Instead, the trial court predicated its denial of appellant's motion solely upon the successful qualification of a jury panel. In so doing the court confused the grounds for change of venue with the grounds for juror challenge for cause.

In the case of Randle v. State, 34 Tex.Cr.R. 43, 28 S.W. 953, confusion similar to that evidenced in the trial of this case concerning the proper procedure connected with a motion to change venue resulted in the reversal of a murder conviction. In that case, the trial court began a pretrial hearing on the motion to change venue but stopped it sua sponte because the evidence reflected a prejudice against the cause (a Dallas murder case) and...