Johnson v. State, s. 04-81-00206-CR

• Decision Date: 13 April 1983
• Docket Number: Nos. 04-81-00206-CR,s. 04-81-00206-CR
• Citation: 651 S.W.2d 303
• Parties: Reginald Leroy JOHNSON, Appellant, v. The STATE of Texas, Appellee. to 04-81-00208-CR.
• Court: Texas Court of Appeals

Page 303

651 S.W.2d 303

Reginald Leroy JOHNSON, Appellant, v. The STATE of Texas, Appellee.

Nos. 04-81-00206-CR to 04-81-00208-CR.

Court of Appeals of Texas San Antonio.

April 13, 1983.

Terrence W. McDonald, Mark R. Luitjen, San Antonio, for appellant.

Bill White, Dist. Atty., Charles Conaway, Fred Rodriguez, Alan Battaglia, Asst. Dist. Attys., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and DIAL, JJ.

OPINION

CANTU, Justice.

Appeals are taken from three capital murder convictions in which the jury assessed punishment in each case at life imprisonment. See Tex.Penal Code Ann. § 19.03 and Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon 1974). The trial court ordered that each sentence be served consecutively. Tex.Code Crim.Proc.Ann. art. 42.08 (Vernon 1979). We affirm.

In identical briefs, appellant seeks to review thirteen instances of alleged error. The sufficiency of the evidence to support the convictions is not challenged.

Briefly stated, the record reflects that appellant and two companions, Eddie Lee Robinson and Gilbert Fordum, shot and killed Andy Anderson, Verna Lee Harris and George Tatum during the course of committing an armed robbery at the Donegan's Terrace Drugstore in San Antonio. After the robbery all three returned to appellant's girlfriend's house where the money taken from the drugstore was divided between the three. Pearl Dickson, appellant's girlfriend, and Robert Del Bryant, another acquaintance, were present when the money was divided and learned about the robbery and killings through conversations between the three assailants. No arrests were immediately made.

Robinson was tried and convicted of capital murders. See Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), later affirmed in unpublished per curiam opinions, 577 S.W.2d 268, delivered on February 14, 1979. Fordum turned State's witness against appellant and his fate is undisclosed by the record.

Initially appellant complains of the trial court's failure to grant his motion for change of venue. Indictments were returned on August 15, 1974. Applications for change of venue supported by affidavits were filed on August 13, 1975. ¹ A hearing was held on the applications for change of venue on August 18, 1975. After presenting a number of witnesses, appellant moved that his applications to change venue be granted, believing that the applications had not been controverted. The prosecutor then informed appellant's counsel that the State had in fact filed controverting affidavits at approximately 9:07 of the morning of the hearing, immediately prior to commencing the hearing on appellant's applications. Appellant, through his counsel, insisted that he had not seen nor had been served with a copy of the State's controverting affidavits filed that morning. The trial court offered appellant additional time to present further evidence in support of his applications. Appellant initially indicated that he would require the additional time to present further testimony and the trial court recessed the proceedings until the next day and offered to grant appellant any additional time needed for a proper presentation of his motions. The following day instead of offering additional testimony as previously indicated, appellant rested on his motions without benefit of further testimony.

The record reflects the following:

THE COURT: As I recall you told me you had additional witnesses that you wanted to obtain either by telephone or otherwise to--and you wanted to keep open your--your motion for change of venue and that was my understanding.

MR. LEON [Defense Attorney]: At this time, then, I close and rest on my motion and urge the court to grant the defendant's motion for change of venue.

* * *

* * *

THE COURT: Well, I want the record to reflect that I'm perfectly willing for Mr. La Roche to take the stand and testify for whatever point you want to raise and in connection with your motion for a change of venue. I'm not closing the door to you on your motion for change of venue to produce Mr. La Roche or anyone else.

MR. LEON: At this time I'm requesting the court to rule on the motion for change of venue. We've rested and we now rest again in case the record is confusing as to what we're doing.

THE COURT: Okay. I overrule the motion for change of venue.

Appellant argues that the testimony of some nineteen (19) witnesses presented before resting on his motions was offered in support of what he thought was the only issue on the change of venue motions, whether he could receive a fair trial in a neighboring county. He further argues that issue on an application for change of venue is joined when the State files its controverting affidavit and serves defense counsel with a copy of same. He, therefore, contends that issue was never properly joined because copies of the controverting affidavits were not tendered to his counsel until after the presentation of his witnesses' testimony. The thrust of appellant's argument seems to be directed at denial of due process due to lack of fair notice of the filing of the State's pleadings.

Appellant relies upon Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978) for the proposition above stated that issue is joined when the State files its controverting affidavit and serves defense counsel with a copy of same. Although we cannot argue with the proposition advanced by appellant we do not find that Henley, supra, presents such a proposition nor that it mandates an automatic change of venue because the State fails to serve the defense with a copy of their controverting affidavit. What we do find in Henley is the well settled proposition that a change of venue motion drafted in compliance with Tex.Code Crim.Proc.Ann. art. 31.03 and supported by properly verified affidavits entitles a defendant to a change of venue as a matter of law, unless the motion 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 ours).

Although appellant claims he first learned of the controverting affidavits only after he had tendered the testimony of some nineteen witnesses, he made no effort to ever secure a ruling of the court on his contention as a matter of law until he had tendered his testimonial evidence. Nor are we persuaded that the testimony of the nineteen witnesses was tendered solely on the issue of whether appellant could receive a fair trial in a neighboring county. In none of seven separate applications for change of venue filed in each case does appellant make any allusion to an inability to receive a fair trial in a neighboring county. To the contrary, the applications merely request the trial court to "change 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, Durrough v. State, supra, and McManus v. State, supra, both contain language detrimental to appellant's position. Both of these cases recognize that a mandatory change of venue may be waived when the appellant takes a position other than the insistence that his motion be granted summarily for lack of an issue on the matter. We quote from McManus v. State,

However, it is clear that a defendant may waive his per se right to a change of venue. If the State has filed no controverting affidavit, and the defendant proceeds to a hearing without objecting that there is no issue of fact to be tried and that he is thus entitled to the change as a matter of law, he waives his right to the per se change of venue. Puryear v. State, 510 S.W.2d 356 (Tex.Crim.App.1974); Lewis v. State, 505 S.W.2d 603 (Tex.Crim.App.1974); see also Von Byrd v. State, 569 S.W.2d 883 (Tex.Crim.App.1978) (footnote # 9). Where the defendant, without such objection, allows the trial court to hear the merits of the issue and to thus exercise its discretion in determining the issue of fact, he cannot thereafter argue that no issue of fact was raised and that he was entitled to the change as a matter of law.

591 S.W.2d at 516.

We hold that appellant's failure to insist upon his per se right to a change of venue prior to invoking the trial court's discretionary authority to hear evidence constitutes a waiver of that right. McManus v. State, supra, and cases cited therein. Appellant's subsequent refusal to offer further evidence after the trial court granted additional time can only be interpreted as a belated effort to insist upon a per se entitlement to the granting of his motions.

The trial court would have been authorized to grant the State additional time to file its controverting affidavits if they in fact were not already filed. Thompson v. State, 77 Tex.Crim.R. 550, 179 S.W. 561 (1915). In view of appellant's refusal to proceed with proof we can perceive no harm to appellant arising from the absence of notice of the filing of the State's controverting affidavits. Appellant's first ground of error is overruled.

Appellant contends in his ground of error number two that the trial court erred in admitting his confession over objection in violation of the Fifth Amendment to the United States Constitution, Tex. Const. art. I, § 10, and Tex.Code Crim.Proc. art. 38.22 (Vernon 1967).

Appellant argues that the delay between the time of his arrest and the time he was taken before a magistrate, coupled with the events that transpired during that time, clearly indicate that the written confession was involuntarily given.

In ground of error number three, appellant contends that the written confession was obtained as a result of an illegal arrest, in violation of the Fourth Amendment to the United States Constitution and Tex. Const. art. I, § 9.

The testimony adduced at a hearing on appellant's motion to suppress the...