Teague v. State, 69716

• Citation: 864 S.W.2d 505
• Decision Date: 23 June 1993
• Docket Number: No. 69716,69716
• Parties: Delbert Boyd TEAGUE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 505

864 S.W.2d 505

Delbert Boyd TEAGUE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 69716.

Court of Criminal Appeals of Texas,

En Banc.

June 23, 1993.

Rehearing Denied Sept. 29, 1993.

Richard Alley, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Betty Marshall and Greg Pipes, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

Delbert Boyd Teague was convicted of capital murder while in the course of kidnapping or attempted kidnapping. V.T.C.A., Penal Code, Section 19.03(a)(2). After the jury answered the special issues in the affirmative, the trial court assessed the death penalty. See Article 37.071, Section 2(b), V.A.C.C.P. On direct appeal to this Court, appellant raises twenty-two points of error. We shall affirm.

Because appellant does not challenge the sufficiency of the evidence, we only briefly summarize the facts. Viewed in the light most favorable to the verdict, the evidence shows appellant and his cohort, Robin Partine, robbed Donna Irwin and her date, Tommie Cox, late at night at a scenic area overlooking Lake Worth in Tarrant County. After appellant bound Cox with a rope and left him lying face down on the ground, appellant and Partine kidnapped Irwin and left the scene in a truck driven by appellant. As they left the area, they passed three young men in a four-wheel drive vehicle going the other way in the direction of where Cox had been left. Appellant turned the truck around and began to follow the four-wheel drive vehicle.

Cox had managed to set himself free, and he approached the four-wheel drive vehicle on foot as it drove toward him. When the four-wheel drive vehicle stopped, Cox told its occupants about what had happened and asked for help. Appellant suddenly appeared on foot, shot each occupant in the four-wheel drive vehicle at least once in the head, and took their wallets. Cox escaped uninjured. One of the occupants of the four-wheel drive vehicle died from his injuries and another suffered permanent brain damage. The other occupant, James Bell, recovered from his wounds and testified at appellant's trial.

After the shootings, appellant and Partine left the scene in their truck with Irwin. Later that night, they took turns sexually assaulting her. Appellant and Partine were eventually arrested in Louisiana after Irwin had left a note, saying she had been kidnapped, in a women's restroom at a gas station. Irwin also testified at appellant's trial.

Pretrial Motions

In points of error eleven, twelve and thirteen, appellant contends that the trial court's failure to appoint a psychiatrist or psychologist to assist his attorneys at voir dire, as requested in pretrial motions, denied him effective assistance of counsel, equal protection and due process under the law.

Appellant has presented no authority, argument, or evidence to show that he was entitled to, or would benefit from, the assistance of a psychologist or psychiatrist during jury voir dire. See Rivera v. State, 808 S.W.2d 80 (Tex.Cr.App.1991); Goodwin v. State, 799 S.W.2d 719 n. 1 (Tex.Cr.App.1990) (appellant provides no argument or authority therefore we will consider the point inadequately briefed and will not address it). Accordingly, appellant's points of error eleven, twelve, and thirteen are overruled.

In his fourteenth point of error, appellant contends that the trial court erred in denying his pretrial motion for the production of grand jury witnesses in violation of Article 20.20, V.A.C.C.P., which requires the State's attorney to endorse on an indictment "the names of the witnesses upon whose testimony the [indictment] was found." See Jenkins v. State, 468 S.W.2d 432, 435 (Tex.Cr.App.1971) (this provision is directory rather than mandatory). Appellant argues that denial of this motion unduly restricted the ability of appellant's counsel to provide effective assistance of counsel by denying him information upon which the grand jury based the indictment. We disagree.

The trial court clearly stated that the motion was denied because no witnesses testified before the grand jury; the indictment was based upon the State's file in this case. The judge did order the State to present to appellant a list of witnesses who would be called by the State at trial and the State complied. Therefore, appellant's point of error fourteen is overruled.

In point of error twenty, appellant contends that the trial court should have granted his motion for a change of venue because of the prejudicial pretrial publicity surrounding this case. A change of venue may be granted in a felony case if "there exists in the county where the prosecution is commenced so great a prejudice against [a defendant] that he cannot obtain a fair and impartial trial." Article 31.03, V.A.C.C.P. The test to be applied in determining whether a trial court should grant a motion to change venue is whether the outside influences affecting the community climate of opinion as to a defendant are so inherently suspect as to raise doubt about the likelihood of obtaining a fair and impartial jury. Beets v. State, 767 S.W.2d 711, 742 (Tex.Cr.App.1988) (op. on reh'g); Phillips v. State, 701 S.W.2d 875, 879 (Tex.Cr.App.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986), overruled in part on other grounds, Hernandez v. State, 757 S.W.2d 744, 751-52 n. 15 (Tex.Cr.App.1988), cert. denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992), overruled in part, Fuller v. State, 829 S.W.2d 191, 200 (Tex.Cr.App.1992). The mere fact of media attention and publicity do not, however, automatically establish prejudice or require a change of venue. Freeman v. State, 556 S.W.2d 287, 297 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978). Furthermore, jurors do not have to be totally ignorant of the facts and issues of a particular case. Ransom v. State, 789 S.W.2d 572, 579 (Tex.Cr.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). Rather, a defendant seeking a change of venue must demonstrate an actual, identifiable prejudice attributable to the pretrial publicity on the part of the community from which members of the jury will come. Id. at 578; see also Nethery v. State, 692 S.W.2d 686, 694 (Tex.Cr.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). He or she must demonstrate that publicity about the case is pervasive, prejudicial, and inflammatory. Ransom, 789 S.W.2d at 579. When a motion for change of venue is denied, this Court on appeal reviews whether the trial court abused its discretion in refusing to grant the change of venue. Id.

Appellant was indicted on August 20, 1985, for an offense that occurred on April 29, 1985. He filed a motion for change of venue in January of 1986, alleging "extreme" pretrial publicity in local newspapers and extensive television and radio coverage in Tarrant County and adjoining counties. At the hearing on the motion held in June of 1986, appellant placed into evidence four specific news clippings--three had appeared in the Fort Worth Star-Telegram and one in a national newspaper, The Star. Appellant also introduced videotape copies of news stories that were broadcast on network television on two different channels, but an investigator for the defense testified that only three television channels out of seven in the metroplex area had carried stories concerning appellant's case and that only three newspapers in the area had covered the case.

It is clear from the record that appellant failed to establish that any members of his jury were prejudiced by the publicity. See Gardner v. State, 733 S.W.2d 195, 204 (Tex.Cr.App.1987) (mere fact that 15 of 77 potential jurors dismissed because they held conclusions as to guilt because of publicity does not in and of itself establish the inability of appellant to be tried by impartial jury). It is apparent from the voir dire records that the members of appellant's jury had little or no knowledge about the offense; in fact, six jurors knew nothing about the facts of the offense. Two jurors knew that the offense had occurred but knew no details. Three jurors each recalled one specific fact ¹ but pledged to consider only the evidence admitted at trial. Juror Osburn admitted that he could remember hearing the facts of the offense on a television broadcast, but expressly stated that he could set aside that information because "you can't believe half of what you hear or see anyway." Since appellant did not show the outside influences affecting the community as to him were so inherently suspect as to raise doubt about the likelihood of obtaining a fair and impartial jury, the trial court did not abuse its discretion. See Faulder v. State, 745 S.W.2d 327, 338-39 (Tex.Cr.App.1987); see also Phillips, 701 S.W.2d at 880; Nethery, 692 S.W.2d at 695. Appellant's twentieth point of error is overruled.

Voir Dire

In points of error sixteen and seventeen appellant claims the trial court erred by holding a portion of his trial--specifically voir dire--in a place other than that mandated by Section 24.910 of the Texas Government Code and Article 1602, V.A.C.S. Jury voir dire in appellant's trial was not held in the Criminal District Court Number One courtroom in the Fort Worth Criminal Courts Building, but instead was held in the Ajax Building which is located in Fort Worth at the corner of Commerce and Weatherford Streets. Appellant did not object until he filed a motion for new trial in which he contended that the relocation violated the mandates of Section 24.910, supra, and Article 1602, supra.

We find that appellant has not preserved these complaints for appellate review because he did not timely object in the trial court. Tex.R.App.Pro. 52(a); Ransom, 789 S.W.2d at 585; Smith v. State, 683 S.W.2d 393, 407 (Tex.Cr.App.1984). Moreover, appellant does not...