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March 26, 1991


From the 140th Judicial District Court of Lubbock County; No. 89-409,949; Honorable William R. Shaver, Judge.

Charles L. Reynolds, C.j., and Dodson and Boyd, JJ.

Author: Reynolds

A jury found appellant Rodney Childress guilty of engaging in organized criminal activity and fixed his punishment at 45 years confinement in the Texas Department of Corrections (now, the Texas Department of Criminal Justice, Institutional Division). By three points of error, appellant contends that the trial court erred in overruling his motions (1) to transfer venue and (2) to quash the indictment, and that (3) the evidence is insufficient to sustain his conviction. We will affirm.

Appellant's initial point is grounded on the theory that pretrial publicity denied him the due process right of a fair trial. Our standard of review is whether the trial court abused its discretion in refusing to grant the change of venue. DeBlanc v. State, 799 S.W.2d 701, 705 (Tex.Cr.App. 1990).

Before trial, appellant moved for a change of venue, alleging the existence of "so great a prejudice against (him) that he cannot receive a trial by an impartial jury free from outside influences, and there is a reasonable likelihood that a fair trial cannot be obtained in this cause in Lubbock County, Texas." The motion was supported by the affidavits of two compurgators. The State filed controverting affidavits. See Tex. Code Crim. Proc. arts. 31.03, 31.04 (Vernon 1989).

At the venue hearing, the defense called ten witnesses, four of whom were representatives of the media, and the State called seven. Mike Brown, L. E. Anderson, Dale Wells, Lorenzo Sedeno and Eddie Richardson testified to a common belief that the bad reputation Damon Richardson, characterized by the media as a "kingpin drug dealer and in this gangland or slaying type thing," had in the community would result in a bias against anyone connected to him. They opined that potential jurors could not resist being influenced by the fact that appellant is both the half-brother and a co-defendant of Damon Richardson, making it difficult or impossible for appellant to receive a fair trial in Lubbock County.

Brown testified that the people of Lubbock County had already decided appellant's guilt, and related inquiries concerning appellant's case within the previous six weeks which demonstrated the general public's awareness of appellant's connections with Richardson. Anderson recounted his experience as juror in the trial of another co-defendant of Damon Richardson, and stated his belief that the jury's awareness of the connection with Richardson resulted in the assessment of a harsher punishment than would otherwise have been imposed.

In addition, Wells, Sedeno, and Eddie Richardson testified to the large amount of media coverage of the cases involving Damon Richardson and his co-defendants. They stated that the coverage was more highly publicized than any criminal case ever seen in Lubbock County, that it "had grabbed more headlines than some of our politicians," and that people never really stopped talking about the crimes.

Admitted into evidence were 104 transcript pages of clippings of articles published in the three daily editions of the Lubbock Avalanche Journal, a daily newspaper with a combined daily circulation of 68,425 and a Sunday circulation in excess of 72,508, which concerned the present case or those of co-defendants. Although the clippings contained numerous references to appellant, identifying him as a suspect or co-defendant in a triple homicide and in an organized crime conspiracy, he figured prominently in no more than seven of the articles.

Representatives from the three local television stations submitted video tapes, which had been retained on file, containing "clippings" of the news coverage by the respective stations of the Richardson case and the associated cases. None of the submitted tapes was comprehensive; each witness testified that much material had not been preserved. The tapes contained 91 segments, about 17 of which concerned appellant. The last story concerning any of the associated cases aired two days prior to the hearing and concerned an appellate ruling on a trial judge's action in dismissing co-defendant Michael Stearnes' counsel.

Lastly, Marta Rosas, prosecuting attorney for the State, agreed that it could be prejudicial to the appellant's trial to show that co-defendant Damon Richardson was convicted of capital murder. She added, however, that she did not want the jury to know that Richardson had been convicted of capital murder.

The State presented Don McBeath, Debbie Porr, Jeff Wilson, and T. L. Wagner, who testified that they had either heard no talk concerning appellant and the cases of his co-defendants, or that talk had died down in the last several months. Each of them and another witness, Jack Bryant, held the opinion that appellant could receive a fair and impartial trial in Lubbock County. Testimony was adduced that other cases had received as much or more publicity than the Richardson and connected cases. Porr, Wilson and Wagner stated they were not familiar with appellant's name and had not heard talk in the community about him. All of them disclaimed knowledge of any dangerous combination against appellant by influential persons in the county, and appellant offered no evidence to the contrary.

At the venue hearing, appellant bore the heavy burden of affirmatively proving his ground for change of venue, the existence in the community of such prejudice that the likelihood of obtaining a fair and impartial trial is doubtful. Beets v. State, 767 S.W.2d 711, 743 (Tex.Cr.App. 1987), cert. denied, 492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579, reh'g denied, 492 U.S. 938, 110 S.Ct. 26, 106 L.Ed. 2d 637 (1989). Absent such a showing, the trial court cannot be said to have abused its discretion by acting without reference to any guiding rules and principles, i.e., by acting arbitrarily and unreasonably, Montgomery v. State, 810 S.W.2d 372, (1990); Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), and its denial of a change in venue will not be disturbed on appeal. Ransom v. State, 789 S.W.2d 572, 579 (Tex.Cr.App. 1989), cert. denied, U.S. , 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990).

Many factors are to be considered by the court in ascertaining whether outside influences affect the community climate of opinion as to a defendant. Included are: (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of governmental officials with the release of publicity, (3) the length of time between dissemination of publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) factors likely to affect the candor and veracity of the prospective jurors on voir dire. Henley v. State, 576 S.W.2d 66, 71-72 (Tex.Cr.App. 1978).

Admittedly, the associated crimes achieved notoriety and were the subject of considerable pretrial publicity; however, the pretrial publicity concerning appellant was not shown to be pervasive, prejudicial or inflammatory. Ransom v. State, 789 S.W.2d at 579. Of the 104 transcript pages of clippings from the Lubbock Avalanche Journal, appellant figured prominently in only seven of the articles, the last appearing more than a year before the trial date. Likewise, in the three video tapes of 91 segments of television news coverage, testimony indicated that appellant was the subject of about 17 segments. This publicity was available to Lubbock County's 210,000 people and its 108,332 qualified voters, but the evidence adduced was conflicting whether the community took notice of the publicity and whether there was any resulting prejudice against appellant.

The news coverage of the Richardson capital murder trial did include several interviews with the defense attorneys and the prosecuting attorneys. However, none of these interviews concerned appellant or mentioned him. Additionally, there is no showing of improper or inflammatory remarks by prosecuting attorneys and no demonstration of how appellant was harmed.

In brief, the evidence presented at the hearing created for the trial court's resolution a factual dispute whether appellant could receive a fair trial in Lubbock County. The court found, upon adequate evidential support in the record, that appellant could receive a fair trial. Consequently, we hold that the court did not abuse its discretion when it overruled appellant's motion to change venue. DeBlanc v. State, 799 S.W.2d at 705.

Our holding is not altered by appellant's assertion that although several jurors affirmed they could set aside the publicity and outside influences, they could not. There was no showing of anything likely to affect the candor and veracity of prospective jurors on voir dire. Out of the entire jury panel, only two were excused for inability to set aside pretrial publicity. In addition, three other members of the jury panel were excused, two for prejudice against drug users and one because of an inability to consider the entire range of punishment. There remained 35 members on the panel, from which each side could strike 10 to select a jury.

Still, appellant argues that he was forced to trial with at least three jurors he should have been allowed to strike, presumably for prejudice. The ...

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