Powell v. State

• Decision Date: 30 November 1994
• Docket Number: No. 71270,71270
• Parties: James Rexford POWELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 821

898 S.W.2d 821

James Rexford POWELL, Appellant, v. The STATE of Texas, Appellee.

No. 71270.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 30, 1994.

Rehearing Overruled April 12, 1995.

Opinion Dissenting from Denial

of Rehearing April 12, 1995.

Luis Dugas, Orange, for appellant.

Charles R. Mitchell, Dist. Atty., San Augustine, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

At a trial held in the 1st District Court of Newton County in May 1991, a jury found appellant, James Rexford Powell, guilty of capital murder. See Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant's trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b), ¹ and the trial court sentenced appellant to death. Direct appeal to this Court was automatic under Article 37.071(h). We now affirm.

Viewed in the light most favorable to the jury's verdict, the evidence at trial established that on October 6, 1990, appellant abducted the victim, a ten-year-old girl, from an antique mall in Jefferson County. Appellant then strangled the victim while in the course of sexually assaulting her. The victim's body was discovered later that day in Newton County. She was found with her hands tied together and a rope tied tightly around her neck, lying face down in a mud puddle. Semen was found in her vaginal cavity. After several witnesses identified appellant's motor home as having been in the vicinity of the place where the victim's body was found, appellant was arrested at his home in Orange County. Appellant does not challenge the sufficiency of the evidence supporting the finding of guilt or the assessment of punishment.

In ten points of error, appellant argues: that a prosecutor serving as a special assistant district attorney in Newton County in this case should have been disqualified; that appellant should have received a change of venue from Newton County; that evidence seized from appellant's motor home in Orange County, pursuant to a search warrant issued in Jefferson County, should have been suppressed; that the trial court abused its discretion in allowing testimony concerning DNA evidence from a witness who was not trained in population genetics and who lacked knowledge of a computer program which produced the evidence on which she based her testimony; and that the trial court abused its discretion in allowing evidence at the punishment phase concerning the subject matter of a prior criminal trial in which appellant was acquitted.

In points of error five and six, appellant argues that the trial court erred in refusing to disqualify Paul McWilliams, a special prosecutor for Newton County in this case. Appellant contends that McWilliams should have been disqualified under either of two provisions of the Texas Constitution.

The first such provision, Article 16, § 14, states, in relevant part, that "all district or county officers [shall reside] within their districts or counties." Appellant argues that assistant district attorneys are district officers, pursuant to Bigham v. State, 141 Tex.Crim. 332, 148 S.W.2d 835 (1941). Appellant further argues that McWilliams was not qualified to serve as a prosecutor in the 1st District Court, since he did not reside within the 1st Judicial District.

The second provision of the Texas Constitution cited by appellant, Article 16, § 40, states, in relevant part, that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Appellant argues that the position of assistant district attorney is a "civil office of emolument," within the ambit of Article 16, § 40, and cites as authority the case of Irwin v. State, 147 Tex.Crim. 6, 177 S.W.2d 970 (1944). Appellant argues that McWilliams was not qualified to serve as an assistant district attorney in Newton County because at the time McWilliams participated in appellant's trial, he was employed as an assistant district attorney in Jefferson County. ²

The applicability of the constitutional provisions cited by appellant turn on whether McWilliams, acting as an assistant district attorney in Newton County, was an "officer" or an "employee." In Aldine I.S.D. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955), the Texas Supreme Court explained that "the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." See also 67 C.J.S. Officers and Public Employees § 8(b) (1978).

An assistant district attorney acts subject to the control and supervision of the district attorney. In our view, an assistant district attorney is not a public officer, but rather a public employee. Therefore, the constitutional provisions cited by appellant are inapplicable to the facts of this case.

The cases which appellant cites, Bigham and Irwin, are not controlling. In Bigham, this Court determined that a deputy supervisor of the oil and gas division of the Railroad Commission was an "officer" within the context of a statute making it illegal for an "officer" to accept a bribe. Bigham is distinguishable from the instant case, in that Bigham concerned the meaning of the term "officer" within the context of the bribery statute, as opposed to the constitution.

In Irwin, this Court addressed how one becomes a de facto officer for Article 16, Section 40 purposes. In that case, two Houston police officers had executed a search warrant by acting as deputy sheriffs. Irwin, 177 S.W.2d at 972. Because they did not continuously exercise the duties of deputy sheriffs, but only used those positions to execute a single search warrant, this Court held that they were not de facto officers and thereby avoided the constitutional issue over their capacities as police officers and deputy sheriffs that could have arisen because of Section 40. Id. at 974.

This case is easily distinguished from Irwin. McWilliams, who served as an assistant district attorney for Jefferson and Newton counties, acted as a state employee and not as a de facto officer for both counties. Appellant's reliance on Irwin is therefore wholly misplaced. Points of error five and six are overruled.

In point of error ten, appellant argues that the trial court abused its discretion in refusing to grant his motion for change of venue. Appellant argues that he could not get a fair trial in Newton County due to pretrial publicity. Appellant makes this argument pursuant to the Sixth Amendment to the United States Constitution, Article 1, § 10 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.

At the hearing held on appellant's motion for change of venue, appellant offered the following evidence in support of his motion: a videotape of news broadcasts by a Beaumont television station concerning the victim, the circumstances of her death, and appellant's alleged involvement in the crime; a series of newspaper articles from the Beaumont Enterprise which discussed the victim, her disappearance, the finding of her body, the arrest and charging of appellant, and information concerning a previous incident in Louisiana for which appellant had been tried and acquitted; statistics showing the size of the viewing audience of the Beaumont television stations in Newton County; statistics showing the number of Newton County subscriptions to the Beaumont Enterprise; and statistics showing the number of peremptory strikes and challenges for cause exercised by appellant at voir dire. In rebuttal, the State offered the testimony of four Newton County residents, all of whom testified that, in their opinion, the appellant could receive a fair trial in Newton County.

For an accused to receive a fair trial consistent with the right to an impartial jury, a jury must determine his guilt or innocence based on the evidence admitted at trial and not on the basis of information provided by the media. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App.1992). A situation may arise, however, "in which pretrial publicity is 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.

A presumption of prejudice does not arise simply because a case has been publicized in the media; jurors need not be completely uninformed concerning the facts of the case. Id. A defendant who seeks a change of venue has the burden of proving "the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful." Nethery v. State, 692 S.W.2d 686, 694 (Tex.Crim.App.1985).

We review the trial court's decision, not to grant the appellant a change of venue, under an abuse of discretion standard, meaning the trial court's decision concerning venue will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the trial court. Narvaiz v. State, 840 S.W.2d at 428. The videotape of television news broadcasts and newspaper articles introduced at the venue hearing by appellant indicate that the underlying facts and circumstances of this case were publicized by the Beaumont press during the week after the victim's death, almost four months before the venue hearing and eight months before appellant's trial. The record of the venue hearing does not indicate that appellant offered any evidence that the facts and circumstances of this case were covered, to any extent, by the Newton County press. In addition, neither the victim nor appellant were residents of Newton County. Finally, the State presented four Newton County residents who testified that, in their opinion, appellant could receive a fair trial in Newton County. Given the foregoing, we believe the trial court's denial of appellant's motion for change of venue...