Phillips v. State

• Decision Date: 16 October 1985
• Docket Number: No. 69064,69064
• Parties: Clifford X. PHILLIPS aka Abdullah Bashir, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 875

701 S.W.2d 875

Clifford X. PHILLIPS aka Abdullah Bashir, Appellant, v. The STATE of Texas, Appellee.

No. 69064.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 16, 1985.

Rehearing Denied Dec. 18, 1985.

Kristine C. Woldy, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Don Stricklin and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder. V.T.C.A. Penal Code § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings nineteen grounds of error before this Court. The sufficiency of evidence presented to support the verdict and sentence is not contested. We affirm the conviction.

In his first ground of error, appellant contends that the trial court erred in denying appellant's motion for change of venue. The record reflects that appellant filed a written pre-trial motion for change of venue, with three supporting affidavits attached. The State filed its response to appellant's motion, with several controverting affidavits attached. The trial court held a hearing on the matter and witnesses for both appellant and the State testified. Four witnesses testified on appellant's behalf and stated that they had heard of the case, had heard others discuss the case, and believed that appellant could not receive a fair trial in Harris County. Additionally, appellant introduced articles printed in both the Houston Post and the Houston Chronicle concerning the case. Each newspaper printed approximately two dozen articles. Several witnesses were called by the State, who testified that although they had heard about the case, they believed that appellant could receive a fair trial in Harris County. The trial court overruled appellant's motion.

Certainly, the question whether to grant a defendant's request for a change of venue because of inflammatory or prejudicial publicity is one of constitutional dimension. Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979). A change of venue is the remedy to jury prejudice resulting from widespread inflammatory news coverage and is available to assure an accused a fair trial when extensive news coverage has raised substantial doubts about obtaining an impartial jury. Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978), at 71.

When a trial court must decide whether to grant a motion for change of venue, the applicable test is whether outside influences affecting the community's climate of opinion as to a defendant are inherently suspect. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1960); Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1982); Henley, supra; Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975). Absent a showing by the defendant that there is such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful, however, the trial judge does not abuse his discretion by denying a motion for change of venue. Nethery v. State, 692 S.W.2d 686 (Tex.Cr.App.1985), at 694 citing Ussery v. State, 651 S.W.2d 767 (Tex.Cr.App.1983) and James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977).

Simply because a case is publicized in the news media does not by itself establish prejudice or require a change of venue. Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1977) and cases cited at 297. As was stated in Eckert v. State, 623 S.W.2d 359 (Tex.Cr.App.1981), at 363, "Clearly, ... [the] standard does not require that jurors be totally ignorant of the facts and issues." Rather, the publicity about the case must be pervasive, prejudicial and inflammatory. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Demouchette v. State, 591 S.W.2d 488 (Tex.Cr.App.1979); and Bell, supra.

We have examined the newspaper articles introduced at the hearing and find them to be "fair, accurate and designed for the purpose of informing the public of current events." See id. at 810 and cases cited therein. Appellant has failed to meet his burden of showing that there existed in the mind of the community so great a prejudice against appellant that he was deprived of a fair and impartial trial. See id.

In addition to the newspaper articles, the State and appellant presented witnesses who testified that appellant could or could not, respectively, receive a fair trial. Given that the trial court was the sole trier of fact at the venue hearing, appellant has failed to demonstrate that the court abused its discretion in resolving the venue issue against appellant. See also Bell, supra at 811 and cases cited therein.

Moreover, the record reflects that although the jurors had heard or read of the case, they stated that they would try the case strictly on the evidence before them. See VonByrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978), Adami, supra; and Freeman, supra. When all of the evidence is considered we find that the trial court did not err by denying appellant's motion for change of venue. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in denying his challenge for cause to venireman Don Jackson. The record reflects the following discussion during the voir dire examination:

"Questions by [Defense Counsel]: I'm just asking, can you conceive of a situation in which you would find that the victim of a robbery provoked this robber in any way, shape or form?

"A. No.

[Appellant's counsel then challenged Mr. Jackson for cause. The trial court permitted the State's attorney to question Mr. Jackson prior to ruling on appellant's challenge.]

"Questions by [Prosecutor]: Again, that's why we are only addressing this issue in determining whether you are going to kill him or give him life. That's all we are talking about. Does he die or does he live in prison. That's the only thing this issue will answer.

"A. You are asking me could I consider it?

"Q. Yes, sir. Could you consider it and in a proper case answer this question no, even though you knew it was going to mean the defendant was going to get life? A proper case is whatever you say it is.

"A. Yes.

[The trial court then overruled appellant's challenge for cause. Appellant's counsel was allowed to continue questioning Mr. Jackson.]

"Questions by [Defense Counsel]: Could you ever find--could you ever think of a proper case--or in a proper case in which you might say yes, the robber's killing the victim was understandable? Not legal: not right; understandable.

"A. Robber killing somebody understandable?

"Q. Yes. In response to some provocation by that victim.

"A. No, I don't.

"Q. Can you conceive in a proper case--could you conceive of a robbery [sic] killing his victim? The victim of a robbery as being reasonable?

"A. No.

[Defense Counsel]: I would challenge.

[At this time, a discussion was had off the record. Thereafter, the State's attorney stated that he accepted the juror. Defense counsel exercised a peremptory challenge and Mr. Jackson was excused.]"

The trial court would not have erred by excluding the prospective juror. Certainly under Art. 35.16(c)(2), V.A.C.C.P., a veniremember may be challenged for cause if he or she has a bias or prejudice against any of the law applicable to the case. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974). See also Martinez v. State, 588 S.W.2d 954 (Tex.Cr.App.1979). But, we must accord due deference to the decision of the trial court given its position to gauge the prospective juror's sincerity and demeanor. Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985), citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). See also Franklin, supra.

In this case although the venireman initially said, by answering "no", that he could not conceive of a case in which he could find that the victim provoked the robber, he later said, by answering "yes", that he could conceive of a case where the killing by the robber was not unreasonable in response to provocation by the deceased, as contemplated by Art. 37.071, supra. We find that under the testimony before us, the trial judge did not err in holding that the prospective juror was not disqualified on the basis of his bias for or against the applicable law. C.f. Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), and Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978).

As to any error resulting from the questioning of the venireman after the prosecutor had "rehabilitated" him, we find that appellant has failed to preserve error on the ground urged. This further questioning concerned whether a killing was "understandable? Not legal: not right; understandable" and "reasonable." We are unable to discern the relevancy of any answer to such questions. Moreover, when appellant challenged the prospective juror for the last time, he did nothing to clear up the matter by, for instance, stating the ground for the challenge by alleging some fact which rendered Jackson incapable or unfit to serve under Art. 35.16(a), V.A.C.C.P. We are constrained to conclude that this portion of the record of Jackson's voir dire is confusing, vague and unintelligible to the extent that the grounds for the challenge cannot be determined. We are therefore unable to say that the grounds now raised comport with the challenge made at trial. Thus, no error is preserved. Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978). Appellant's second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in denying appellant's challenge for cause to venireman Gary Roan. The record reflects the following testimony during ...