Wyle v. State

• Decision Date: 20 September 1989
• Docket Number: No. 69295,69295
• Parties: James WYLE, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 709

777 S.W.2d 709

James WYLE, III, Appellant, v. The STATE of Texas, Appellee.

No. 69295.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 20, 1989.

Dolph Quijano, Jr., El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and Robert Dinsmoor, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder, V.T.C.A. Penal Code, Section 19.03(a)(2). Death was imposed by the trial court after the jury returned affirmative findings to both special issues submitted pursuant to Art. 37.071(b)(1) and (2), V.A.C.C.P. Direct appeal to this Court was automatic. Because of our disposition of appellant's sixth point of error, we will reverse the conviction.

Appellant does not challenge the sufficiency of the evidence, so we give only a brief recitation of the facts. Appellant and a companion were traveling to California when they experienced car trouble outside the town of Van Horn. Appellant, carrying a .38 caliber handgun, told his companion to wait with the car while he proceeded to walk back to Van Horn. After resting and obtaining something to eat, appellant walked to an Exxon station where he noticed that the attendant was asleep in a chair. When he opened the door, the attendant was awakened by the sound of a bell on the door. Appellant told Nicholas Flores, the attendant, to give him the money in the register. After taking the money from Flores, appellant repeatedly shot Flores. He then took decedent's wallet and keys to his truck which he drove back to where his companion was located. Appellant and his companion were soon stopped by officers as they traveled towards El Paso. Appellant subsequently confessed to the murder and robbery.

In his sixth point of error, appellant contends the trial judge reversibly erred in failing to grant his challenge for cause to prospective juror Shotwell. Appellant challenged Shotwell pursuant to Art. 35.16(a)(6), V.A.C.C.P., because he had been a witness for appellant at the hearing on his motion to change venue. At the venue hearing Shotwell testified he was the owner of the only funeral home in Culberson County, and his home handled the funeral services for Nicholas Flores, the victim of this alleged offense. Appellant's counsel elicited testimony from Shotwell predominantly about the size of the deceased's funeral.

During voir dire examination of Shotwell, defense counsel established Shotwell had been a witness at the venue hearing and promptly challenged him for cause. The trial judge overruled this challenge. Further questioning of Shotwell by defense counsel revealed he had been called to the scene of the alleged offense by the Sheriff's office. He was told there had been a shooting and a death, and, as funeral director, it was his duty to remove the body. Shotwell stayed at the scene for a couple of hours, during which time he saw the body of the deceased in the back room and the blood on the floor. He talked to law enforcement personnel "in passing" about the case "since [he knew] everybody" who was investigating the incident. Shotwell also stated he had been hired by the Flores family to handle the funeral and that he knew the deceased and his brother "just on a business basis". Shotwell believed he could be a fair juror, he presumed appellant to be innocent, and he would reach a verdict based only on the facts from the witness stand. Appellant then exercised a peremptory challenge on Shotwell.

During the State's case-in-chief Shotwell was called to testify. He stated he took the deceased's body from the gas station to his funeral home and then transported the body to El Paso to the medical examiner's office. Shotwell did not embalm the body, and he could not recall who had removed the clothing from the deceased.

This point of error presents us with our first opportunity to construe Art. 35.16(a)(6). This statute provides that either the State or the defense may challenge a prospective juror for cause if that person is a witness in the case. The State argues in its brief that this statute does not apply to a person who was a witness at a pre-trial hearing on a change of venue motion. We are not willing to construe this statute in such a limited manner. The problem presented by limiting this challenge for cause to witnesses called during the trial on the merits is that often, during voir dire, a party does not know whether a specific person will be needed as a witness during trial. If a party fails to volunteer during voir dire that the prospective juror is a potential witness during the trial on the merits, the opponent has no basis on which to formulate this challenge for cause. That party could then call the witness during trial, and only then does it become apparent that the opposing party had a proper basis upon which to challenge this prospective juror, now witness, for cause. Thus limiting this challenge for cause to witnesses during the trial on the merits renders Art. 35.16(a)(6) meaningless and ineffective. We do not believe the legislature intended such a result when enacting this statute.

In Petrey v. State, 158 Tex.Crim. 658, 258 S.W.2d 808 (1953), the most recent case that we found touching on this issue, this Court held the trial judge acted properly in sustaining the State's challenge for cause to a prospective juror who had, among other things, testified for the defendant on his motion for a change of venue. Although Petrey presents a different factual scenario than the case sub judice, it supports our conclusion that Art. 35.16(a)(6) encompasses witnesses at pre-trial hearings. The venireman challenged in Petrey was one of the compurgators upon the affidavit for change of venue, was a witness at the hearing, talked to the defendant after charges were filed, and contributed money to his defense. The Court held no error was shown by the action of the trial court in sustaining the State's challenge to this venireman. Petrey, 258 S.W.2d at 809.

We also do not read the statute so narrowly to define "witness", as used in Art. 35.16(a)(6), as a person who testifies at any phase of a trial. While the term "witness" certainly encompasses one who testifies at trial, a proper challenge for cause could also be made to an individual who saw the commission of the offense or was so closely connected to the events of the offense or subsequent investigation as to be a "witness" to the crime and its incidents. See Rubenstein v. State, 407 S.W.2d 793, 797 (Tex.Cr.App.1966) (McDonald, J. concurring) (jurors who had seen shooting of Lee Harvey Oswald on television were "witnesses" to offense within meaning of Art. 616, V.A.C.C.P.--predecessor to Art. 35.16). In other words, "witness" as used in Art. 35.16(a)(6) includes one who has personal knowledge of facts of the case.

On the basis of Petrey and our reading of Art. 35.16(a)(6), we hold the trial court erred in denying appellant's challenge for cause to venireman Shotwell. In the instant case the trial judge had the following facts to consider when ruling on appellant's challenge for cause: Shotwell was present at the scene of this capital murder shortly after it was committed; he assisted law enforcement somewhat in the investigation; he handled the victim's funeral; and he was acquainted with the victim and members of his family. These facts alone were sufficient to put the trial judge on notice that Shotwell was a "witness in the case" such that he should have sustained appellant's challenge for cause. Additionally, Shotwell had already testified in the pre-trial hearing on appellant's change of venue motion and, thus, was a de facto "witness in the case" under these facts. ¹

Thus we find the trial court erred in failing to sustain appellant's challenge of Shotwell. Appellant was harmed because the State, in effect, was given one more peremptory challenge than appellant. ² We hold the trial court therefore reversibly erred by denying appellant's challenge for cause to venireman Shotwell. Appellant's sixth point of error is sustained.

Realizing the potential of a retrial of this cause, we address other pertinent points of error concerning matters which may reoccur.

Appellant, in his first point of error, asserts the trial court erred when it failed to grant his first and second motions for a pollster. Defense counsel argued that a statistician was required to permit him to show the level of prejudice against his client if he was tried in Van Horn to support his motion for change of venue. The defendant fails to cite any statute or case law in support of his proposition and the State's attorney stated he was unable to find any cases in Texas addressing this particular issue. Our review of the case law, likewise, has not revealed any case in Texas that has required the appointment of a pollster to determine the community sentiment. A determination of whether there exists "so great a prejudice against [the defendant] that he cannot obtain a fair and impartial trial," Art. 31.03(a)(2) V.A.C.C.P., may be accomplished in a myriad of ways. The defendant may offer newspaper accounts of the crime, video or television coverage, audio portions from tape recorded interviews or radio programs, and witnesses from the community. This list, however, is not exclusive. It, arguably, could permit the results of a statistical survey of community sentiment by a pollster. These types of compilations for community sentiment are not required to be introduced at a hearing on a change of venue nor is there a requirement that their expense be paid for by the State. Appellant has not shown he was entitled to a pollster, and we cannot say the trial court abused his discretion in not granting appellant's motions. Therefore, his first point of error is overruled.

In appellant's fifth point of error, he argues that the court erred in failing to provide him, personally, with a list of persons summoned as...