McGinn v. State

• Decision Date: 21 January 1998
• Docket Number: No. 72134,72134
• Citation: 961 S.W.2d 161
• Parties: Ricky Nolen McGINN, Appellant, v. STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 161

961 S.W.2d 161

Ricky Nolen McGINN, Appellant, v. STATE of Texas.

No. 72134.

Court of Criminal Appeals of Texas En Banc.

Jan. 21, 1998.

Joel Menachim Shearer, Bastrop, for appellant.

Lee Haney, Dist. Atty., Brownwood, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

KELLER, Judge, delivered the opinion of the Court with respect to points of error two through seven, in which McCORMICK, Presiding Judge, and MEYERS, MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined and an opinion with respect to point of error one, in which McCORMICK, Presiding Judge, and MEYERS, PRICE and HOLLAND, Judges, joined.

In a trial beginning in May of 1995, appellant was convicted of the capital murder of twelve-year-old Stephanie Flanary committed on May 22, 1993 in Brown County. The jury answered the punishment issues in the State's favor, and appellant was sentenced to death. Direct appeal to this Court is automatic under Article 37.071, § 2(h). ¹ Appellant raises seven points of error on appeal. We will affirm.

1. Venue

In point of error two, appellant complains about the trial court's refusal to grant a change of venue on the basis of prejudicial pretrial publicity. He complains that some newspaper articles about his case prejudiced his ability to obtain a fair trial by referring to a murder charge of which appellant was acquitted and by referring to the fairly recent murders of two other girls in Brown county.

The standard of review for a trial court's ruling on a request for change of venue is abuse of discretion. Anderson v. State, 932 S.W.2d 502, 506 (Tex.Crim.App.1996). We will not reverse so long as the trial court's ruling "is within the realm of reasonableness given the record before it." Id. To prevail on his request, appellant "bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury trial is doubtful." Id. (quoting Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993)). The publicity involved must be "so pervasive and prejudicial as to create a reasonable probability that an impartial jury cannot be empaneled even with the most careful voir dire." Id. (quoting Narvaiz ). Moreover, that some members of the venire are challengeable for cause due to attitudes generated by publicity does not mean that an impartial jury cannot be empaneled. Id.

In the present case, appellant offered before the trial court the testimony of several witnesses, including a former District Attorney, who stated that there was a substantial risk that appellant could not receive a fair trial. The State controverted this testimony with witnesses who testified that appellant could receive a fair trial, and defense witnesses randomly selected to test whether a fair trial could occur also provided some testimonial support for the State's position. Although the basis for excusing a prospective juror was not always clear, we discern that at least seven prospective jurors were excused because they had formed opinions based upon publicity or information they received about the case. A number of others were excused because their relationship with a party, or a relative of one, had compromised their ability to be fair and impartial. Some of the prospective jurors in both categories had spontaneously offered their views at the hearing on jury qualifications. Finally, we note that appellant did not use all of his peremptory challenges.

Appellant concedes that no facts in the record can be offered to show that the trial court abused its discretion under current law. He candidly points to Gardner v. State, 733 S.W.2d 195 (Tex.Crim.App.1987) as being strikingly similar to his case and adverse to his position: fifteen prospective jurors were excused for holding established conclusions about the defendant's guilt, conflicting testimony was offered by the State and the defense on whether the defendant could obtain a fair trial, the publicity in the case was factual in nature, and the defendant had not exhausted his peremptory challenges. Id. at 204. We agree with appellant's assessment that the trial court did not abuse his discretion under the law as it currently stands.

Appellant contends, however, that we should depart from current law and engage in speculation about what the record might have shown. He claims that he could not ask questions designed to discover prospective jurors' knowledge and opinions about his prior murder charge and acquittal because doing so would have informed prospective jurors who did not already know about the prior charge --destroying any remaining chance of a fair trial. He argues that we should speculate that some members of the jury may have known about the prior charge and acquittal in light of the insular nature of a small town. We are not convinced.

In a number of recent cases, we have reaffirmed the principle that the record must show a defendant's inability to obtain a fair trial. Moore v. State, 935 S.W.2d 124, 129-30 (Tex.Crim.App.1996)(the defendant produced no evidence that any member of the venire harbored unshakable prejudices against him); Penry v. State, 903 S.W.2d 715, 727 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995)(record must demonstrate prejudice in community making likelihood of obtaining a fair trial doubtful); Willingham v. State, 897 S.W.2d 351, 357 (Tex.Crim.App.1995)(nothing in record indicated identifiable prejudice in community); Brimage v. State, 918 S.W.2d 466, 509 (Tex.Crim.App.1994)(no evidence showed that media activity prejudiced any member of the jury against the defendant). We do not believe it necessary or appropriate to make an exception to this rule for small counties. If the requisite degree of prejudice is present, appellant should be able to demonstrate that fact on the record, regardless of the size of the locality involved. Moreover, appellant's claim that questioning about the prior murder accusation would taint the entire venire is untenable in light of the statutory scheme of individual voir dire for capital cases. Defense counsel could have asked open-ended questions designed to elicit knowledge of prior accusations during individual voir dire and could have then conducted follow-up questioning where appropriate. Such a procedure would have enabled appellant to discover which prospective jurors knew about the prior accusation without informing those who did not already know. Point of error two is overruled.

2. Punishment

In point of error three, appellant contends that the trial court erred by permitting testimony of a child about an extraneous offense incident without an inquiry into her competence to testify concerning the incident. The following occurred in the punishment stage of the trial:

Q. Latasha, I'm going to ask you about something that happened around Halloween, when you were three or four years old.

Do you remember that?

A. Yes, sir.

Q. Did anything unusual happen on that date?

[DEFENSE COUNSEL]: We will object. That is too remote to call on a child, twelve years old, to remember something that happened back when they were three years old. The remoteness makes it inadmissible.

Also, the prejudicial effect far outweighs any ends that it might serve toward justice.

THE COURT: Overruled, counsel. You may proceed.

The State then proceeded to examine Latasha concerning an incident in which appellant sexually molested her when she was three or four years old.

Appellant concedes that defense counsel's objection was "at best, inartful." He nevertheless contends that this objection triggered the trial court's duty to inquire into the witness' competence without an explicit demand from defense counsel. We disagree.

Texas Rule of Criminal Evidence 601 states in relevant part:

Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:....

(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.

Unlike some rules, Rule 601 does not expressly require that a party request an examination by the court. See Texas Rules of Criminal Evidence 204 (hearing on judicial notice) and 705(c)(underlying facts or data upon which expert opinion is based). However, unlike the incompetency to stand trial statute, Rule 601 does not expressly impose upon the trial court the duty to conduct an inquiry on its own motion. See Article 46.02, § 2(b). Where the rule specifies a right to a hearing upon request, an objection to the substance of the testimony that would be the subject of such a hearing does not preserve error regarding the trial court's failure to conduct the hearing. Jenkins v. State, 912 S.W.2d 793, 813 (Tex.Crim.App.1993)(objections to expert testimony did not preserve error on failure to conduct Rule 705 hearing in the absence of an express request). For the reasons stated below, we hold that this principle applies even if the rule, statute, or other law is silent about whether or not the party must request a hearing. That is, to complain about failing to obtain a hearing or other inquiry, the party must have requested the hearing unless the rule, statute, or other law conferring the right to a hearing provides that the trial court has a duty to sua sponte conduct one.

The general rule is that a party must request the desired relief to preserve a complaint on appeal:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context.

Texas Rule of Appellate Procedure 52(a)(...