Hussey v. State, 58459
| Decision Date | 12 December 1979 |
| Docket Number | No. 2,No. 58459,58459,2 |
| Citation | 590 S.W.2d 505 |
| Parties | Buddy Ray HUSSEY, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Charles M. McDonald, Waco, for appellant.
Felipe Reyna, Dist. Atty., and Lynn W. Malone, Asst. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 60 years.
In his third ground of error appellant contends the trial court erroneously denied his motion for change of venue filed pursuant to Art. 31.03, V.A.C.C.P. The motion, properly supported by affidavits of two persons, was presented at a hearing on pretrial motions held on February 14, 1977, and was denied without an evidentiary hearing even though no controverting affidavits had been filed by the State under Art. 31.04, V.A.C.C.P. Trial commenced two weeks later on February 28.
Under well-established precedent, as discussed in Durrough v. State,562 S.W.2d 488 (Tex.Cr.App.), and Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.), appellant was entitled to a change of venue as a matter of law when the State failed to contest the application by controverting affidavits or by evidence presented at a hearing on the motion, and the trial court's ruling constituted reversible error.
In its reply brief the State argues that appellant's motion does not properly allege "a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial," as contemplated by Art. 31.03(2), supra. The cases cited by the State, however, address the sufficiency of the evidence to show such a "dangerous combination" when a hearing on the motion was in fact held. Here no hearing was held. The issue here concerns denial of a motion without a hearing.
Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, held that the application for change of venue and supporting affidavit need not follow the exact wording of the statute. The application in that case recited:
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Fields v. State
...affidavits or by evidence presented at a hearing on the motion. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979); Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978); Durrough v. State, 562 S.W.2d 488 The State argues that the appellant ......
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Johnson v. State, s. 04-81-00206-CR
...the venue of this case other than Bexar County, Texas...." Neither Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978); Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979); nor McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1980), all relied upon by appellant, support his contention. In fact, D......
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Ryser v. State
...some manner the way in which the trial proceeds.” 42 Tex. Prac., Criminal Practice And Procedure § 30:11 (3d ed.) ; see also Hussey v. State, 590 S.W.2d 505, 506 (Tex.Crim.App. [Panel Op.] 1979).In particular, Ryser references a press conference jointly held by the district attorney, mayor,......
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Roy v. State
...of venue without conducting a pretrial evidentiary hearing, see Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978) and Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979). This is not the situation presented Instead, appellant contends that the State's controverting affidavits should both have ......