Lundstrom v. State

• Decision Date: 12 July 1984
• Docket Number: No. 11-83-221-CR,11-83-221-CR
• Citation: 678 S.W.2d 130
• Parties: Loyal E. LUNDSTROM, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 130

678 S.W.2d 130

Loyal E. LUNDSTROM, Appellant, v. STATE of Texas, Appellee.

No. 11-83-221-CR.

Court of Appeals of Texas,

Eastland.

July 12, 1984.

Bill B. Hart, Eastland, for appellant.

Emory C. Walton, Crim. Dist. Atty., Eastland, for appellee.

DICKENSON, Justice.

The jury found that Loyal E. Lundstrom was guilty of murder ¹ and assessed his punishment at confinement for life. ² We affirm the conviction.

The evidence is sufficient to support the jury's finding that appellant is guilty of murder as alleged in the indictment:

[T]hat Loyal Edward Lundstrom on or about the 3rd day of March, A.D., 1983 ... did then and there intentionally and knowingly cause the death of an individual, namely: Doris Eileen Lundstrom, by shooting her with a shotgun....

Appellant and decedent were married, and they were active in their church and in the community where they lived. Appellant was Mayor Pro Tem of the City of Cisco, and his wife was President of the Parent-Teachers Organization. They operated a motel, and they also represented two bus companies by handling freight and selling tickets. The two of them also operated a business selling, preparing and installing cemetery monuments.

The record indicates that appellant and decedent had been having marital problems prior to her death. At that time appellant was 59 years of age, and his wife was 27 years of age. They had five children: a fourth grader, a third grader, a second grader, a first grader, and one child who was too young for school.

At the time of the shooting the four older children were at school. Appellant took the youngest child to his preacher, told the preacher a false story about having to take his wife to see about her injured brother, and asked the preacher to pick up the other children at school and take care of them until he and his wife returned. Appellant then left the state. The victim's body was discovered after the preacher and other friends became concerned because they had not heard from the Lundstroms and had also learned that the story about the wife's brother's injury was false. After writing a letter of explanation to his preacher, appellant called another friend and then returned to Texas. At that time he was arrested and charged with murder.

Appellant has briefed five grounds of error. First, he argues that the trial court erred in failing to grant his motion for change of venue.

Appellant's Motion for Change of Venue alleged that "there exists in Eastland County, Texas so great a prejudice against the defendant that the defendant cannot receive a trial by an impartial jury free from outside influences and there is a reasonable likelihood that a fair trial cannot be obtained" in Eastland County or in the adjoining judicial districts. The motion was verified by appellant and supported, at least in part, by affidavits of five residents of Eastland County who swore:

I am aware of the contents of the Defendant's motion for change of venue in the above entitled and numbered cause, and it is my opinion that the Defendant cannot obtain a fair and impartial trial in Eastland County, Texas. My opinion is based on newspaper articles and radio and television broadcasts concerning the Defendant which in my opinion were inflammatory and prejudicial and conversations with other residents of Eastland County, Texas, who are also of the belief that the Defendant cannot obtain a fair and impartial trial in Eastland County, Texas. (Emphasis added)

We note that the supporting affidavits do not verify the contents of the motion, do not state the statutory grounds and are expressed as opinions rather than facts.

The State controverted that motion with affidavits from five residents of Eastland County who swore that:

[T]here does not, in fact, exist in Eastland County, Texas, so great a prejudice against the said Loyal Edward Lundstrom, Defendant, that he cannot obtain a fair and impartial trial in this cause in this county. The said Defendant can obtain as fair and impartial trial in this county as elsewhere.

Appellant took the position that the State failed to properly controvert his motion for change of venue; consequently, no testimony was offered in support of, or in opposition to, the motion. Appellant argues that he is entitled to an automatic change of venue because the State's affidavits do not specifically attack the "credibility" or "means of knowledge" of the persons who gave affidavits supporting the motion for change of venue. See TEX.CODE CRIM.PRO.ANN. art. 31.04 (Vernon 1966). ³ Appellant's contention that the State's affidavits are insufficient is supported by the recent case of Turner v. State, 641 S.W.2d 383 (Tex.App.--El Paso 1982, pet'n ref'd), and by dicta in the older cases of Davis v. State, 19 Tex.Ct.App. 201 (1885) and Carr v. State, 19 Tex.Ct.App. 635 (1885).

We disagree with Turner v. State, supra, and we note that the Court of Criminal Appeals has made it abundantly clear that its refusal of a petition for discretionary review adds nothing to the precedential value of an opinion from one of the Courts of Appeals. See Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983, en banc). Turner relied upon two cases which were written in 1885 by the old Texas Court of Appeals. Those cases are factually distinguishable, and the language relied upon by Turner is dicta which was not essential to the result reached in either of those cases. In Davis v. State, supra, the conviction was affirmed because the evidence which was introduced on the matter of venue was sufficient to support the trial court's action in overruling the application to change venue. In Carr v. State, supra, the trial court rejected the defendant's right to make proof in support of his application for change of venue, and the Court of Appeals held that: "This was error for which the judgment must be (reversed and the cause) remanded." Further, the State's affidavits in Carr did not attack both grounds alleged in the application for change of venue.

Moreover, if the law is as rigid as the dicta in Davis and Carr would indicate as to what the State's affidavits must say in order to controvert the issue of venue, similar strictness should be applied to the affidavits supporting the motion for change of venue. In this case we note that appellant's five affiants each said they were "aware of the contents of the Defendant's motion for change of venue;" however, they did not swear that those facts were true. Those affidavits were merely made on information and belief, for the affiants swear only to their "opinion" that appellant cannot obtain a fair and impartial trial in the county. The affidavits do not swear to the "fact" 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." See TEX.CODE CRIM.PRO.ANN. art. 31.03 (Vernon Pamph.Supp.1984).

The first ground of error is overruled. We hold that the State's affidavits impliedly attacked the credibility and means of knowledge of the affiants supporting appellant's motion for change of venue. See McCormick & Ray, Texas Law of Evidence secs. 682-683 which indicates that a witness may be impeached if contradicted by other witnesses upon a relevant or material matter. Moreover, appellant's supporting affidavits were defective, and the venue issue was not properly raised.

Appellant also cites Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978), and Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978, en banc). Those cases are not in point because no controverting affidavits were filed in either of them. In this case the State did file controverting affidavits in substantial compliance with Article 31.04, supra.

After the trial court overruled the motion to change venue, appellant's request for individual voir dire of the potential jurors was granted. This made it possible for each potential juror to be interrogated at length about his or her ability to give appellant a fair trial based upon the evidence introduced from the witness stand. We note that all twelve jurors were accepted by appellant and that appellant did not use all of his peremptory challenges. See Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978, en banc).

In his second ground of error, appellant urges error by the trial court in refusing his request for inspection of the police files after Officer Hobbs and Chief Whittle testified they had refreshed their memory by referring to those files before testifying at the pre-trial hearing on the motion to suppress. This ground is overruled. That testimony was given at a pre-trial hearing, and there was no "use before the jury" under Gaskin v. State, 353 S.W.2d 467 at 469 (Tex.Cr.App.1961), nor was there the "functional equivalent" under Ballew v. State, 640 S.W.2d 237 at 244 (Tex.Cr.App.1980). The trial court did not err in refusing appellant's request to examine and copy the entire police file. See TEX.CODE CRIM.PRO.ANN. art. 39.14 (Vernon 1979).

Appellant argues in his third ground that the trial court erred in overruling his motion for mistrial after the State's attorney asked the following question of Police Officer Hobbs:

Q And, whereabouts in Cisco did you take this confession?

A In the City Council Chambers on the second floor of city hall.

At that point appellant's attorney requested a conference at the bench, and the following took place outside the hearing of the jury:

DEFENSE ATTORNEY: The question that was asked by the State's attorney was, where was the confession taken or given--That confession has been ruled out by this Court, and implication before the jury now is that the confession--That there was a confession given....

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STATE'S ATTORNEY: Judge, let me say, if I did say "confession" I didn't mean it, and I didn't even think about it. I was thinking about the warning, and if I did use the word "confession" it was inadvertently.... (Emphasis added)

DEFENSE ATTORNEY: I...