At about 8:15 on the morning of August 8, 1973, a seventeen-year-old called the Pasadena police and said he had shot a man. The officers found Elmer Wayne Henley Jr. sitting on the sidewalk outside a house on Lamar Street with two companions, a pistol on the ground beside them, and the body of Dean Corll inside. Before the day was out Henley had named two boys, Charles Cobble and Marty Jones, and said he knew where bodies were buried; Houston police had missing-persons records on both. The next morning he signed a written confession. It says that about three years earlier a school friend, David Brooks, had introduced him to Corll, who promised $200 for every boy he brought, and that the first boy was handcuffed, tied, raped and killed after Henley left the apartment. “This was the start of the whole thing,” he wrote, and he admitted helping with eight or ten more, shooting Cobble in the head with Corll’s pistol, choking Jones with Corll’s help, and shooting Johnny Delone. He led officers to the boat stall in southwest Houston, to Lake Sam Rayburn and to the beach at High Island.
He was indicted in Harris County for six murders. The case was moved to San Antonio, and in the summer of 1974 a Bexar County jury convicted him of all six and assessed ninety-nine years on each, to run one after another. In December 1978 the Texas Court of Criminal Appeals threw the convictions out. Henley had asked for a change of venue out of Bexar County, supported by his own affidavit and nine from local citizens, and the judge refused to hear any evidence on it, saying he would first try to seat a jury and decide afterward. The court held that the statute entitled Henley to a hearing and that the saturation coverage in San Antonio, some of it read into the opinion, made the refusal reversible.
The retrial was held in Corpus Christi, and in September 1982 the Thirteenth Court of Appeals affirmed six murder convictions and six life sentences. Henley did not challenge the sufficiency of the evidence; he argued about jurors who had read about the case and about whether he had knowingly given up a lawyer before confessing, and the court rejected every ground. Henley was denied parole again on November 7, 2025, according to the Texas Department of Criminal Justice, which set his next review for November 2035.
Two opinions, one reversing the 1974 convictions and one affirming the 1979 retrial, printed in full from the Harvard Law School Library’s digitization of the official reports. They are published court records and free to reproduce. Neither court weighed whether Henley was guilty; the first decided a question of venue and the second a list of complaints about jury selection and the confession. What the second opinion does contain is a long stretch of Henley’s written statement of August 9, 1973, printed as the court quoted it, including the sic marks the court added. It is his account, given in police custody at seventeen, and much of it concerns acts he attributed to Corll and Brooks.
The confession names murdered boys as Henley spelled them or as the typist heard them, and those spellings stand here because they are the court’s: David Hildegeist, Johnny Delone, Billy and Mike Balch. Their families and most later records write Hilligiest, Delome and Baulch. The eleven people questioned for the 1979 jury are reduced to initials, which leaves two of them as M. because their surnames share an initial; the court printed their surnames alone, but they were private citizens called for jury service. The police officers and lawyers keep their names, and so does the attorney Plotkin, whom Henley mentioned to an officer on the drive to San Augustine and did not want because “he didn’t want his mother to have to pay.”
Printed as the reporters set it. The 1978 opinion quotes San Antonio press coverage the defense put in the record, and those passages are the court’s quotation of the newspapers, not a separate clipping. Seven words the typesetter broke across lines, among them Bexar and evidentiary, have been closed up where the opinions spell them whole elsewhere. The 1982 opinion prints the police department as “Pasadana” once and has the typist’s own slips inside the confession, “ahat” and “couldn;t,” which the court flagged with sic; we have left them. The Houston Police Department’s case file on the Corll murders, and 145 pages of the 1974 trial transcript with the State’s brief, are on separate pages in this archive.
Elmer Wayne HENLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
Nos. 53561-53566.
Court of Criminal Appeals of Texas, En Banc.
Dec. 20, 1978.
Rehearing Denied Jan. 24, 1979.
Will Gray, Terrence A. Gaiser, Edwin F. Pegelow, Houston, Rudy Esquivel, San Antonio, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Don L. Lambright, Asst. Dist. Attys., Houston, Lucien B. Campbell and Douglas C. Young, Asst. Dist. Attys., San Antonio, for the State.
[OPINION BY PHILLIPS, Judge. type=majority]
OPINION
PHILLIPS, Judge.
The following opinion was largely the work of the late Honorable Howard P. Green, Commissioner of the Court of Criminal Appeals.
In a single trial before a jury appellant was convicted for murder with malice in six cases. See Articles 1256 and 1257(b), V.A. P.C., 1925. Punishment was assessed by the jury at 99 years in each of the six causes. The court ordered that the sentences run consecutively.
In grounds of error two and three appellant contends the trial court erred in overruling his motion for change of venue without affording him a pretrial evidentiary hearing in violation of Articles 31.03 and 31.04, V.A.C.C.P., and due process of law.
On December 17, 1973, approximately four months after appellant was indicted by the Harris County grand jury for six of the highly publicized mass, homosexual rape and torture murders, Honorable William M. Hatten, Judge of the 176th District Court, Harris County, commenced hearings on appellant’s numerous pretrial motions in Cause No. 198,892. Appellant did not file a motion for change of venue from Harris County but filed a motion for continuance asserting that “Because of the massive dissemination of potentially prejudicial material by all elements of the news media. the defendant cannot obtain a fair trial at this time.” Finding “too great a prejudice” existing against appellant in Harris County and all adjoining counties, Judge Hatten on his own motion ordered a change of venue in Cause No. 198,892. Judge Hatten transferred the case to the 175th Judicial District in San Antonio, Bexar County, where it was assigned No. 74CR — 424.
Honorable Preston H. Dial, Judge of the 175th District Court began pretrial hearings on April 8, 1974. The following day appellant filed a motion for change of venue in compliance with Article 31.03, V.A.C.C.P. Appellant’s motion was supported by his sworn affidavit and sworn affidavits of nine Bexar County citizens, all of which asserted that “there does in fact exist in said Bexar County, Texas so great a prejudice against him that the said ELMER WAYNE HENLEY, JR., Defendant, cannot obtain a fair and impartial trial of said cause in said County.” On April 22, 1974, following the State’s filing of four sworn affidaits controverting appellant’s motion for change of venue, the trial court advised appellant that:
“It is this Court’s intention not to take evidence on the Motion to Change Venue at this time. I intend to attempt to select a Jury and if that can be done successfully, then I will overrule your Motion for Change of Venue; but, if we cannot select a Jury successfully here in Bexar County, then I will grant your Motion.”
Appellant was not allowed to introduce evidence on a bill of exception to the court’s ruling that no pretrial hearing on change of venue would be conducted. On May 13, 1974, appellant filed a motion for leave to ■file and a petition for writ of mandamus in the Supreme Court of Texas to compel a ruling by the trial court on his motion for change of venue. The petition was denied. On May 13, 1974, when the consolidated cases were called for trial, appellant again requested that the court rule on his motion for change of venue. The court refused.
Following the examination of 124 venire persons, which resulted in the selection of 32 persons as the jury panel from which the jury was ultimately selected, the court stated:
“THE COURT: That completes the qualification of the Jury Panel.
“MR. GRAY: Over our objection and exception, Your Honor.
“THE COURT: I understand. The Motion for Change of Venue is now denied.
“MR. GRAY: Note our exception, Your Honor. We would like to present proof, at this time, in support of our Motion for Change of Venue, for our Bill of Exception.
“THE COURT: That will be denied.
“MR. GRAY: Note our exception.”
Appellant was tried and on July 15,1974, a guilty verdict of murder with malice was returned in each of the six causes. On July 25, 1974, appellant filed a motion for new trial alleging, among other things, that the trial court committed reversible error in refusing to grant appellant an evidentiary hearing, in advance of trial, on his motion for change of venue. At the hearing on appellant’s motion for new trial the trial court allowed appellant to introduce evidence in support of appellant’s bill of exception to the trial court’s overruling of his change of venue motion.
The issue on appeal is not whether the trial court erred by not granting appellant a change of venue, nor whether the trial court erred in delaying its ruling on appellant’s motion for change of venue until voir dire had been conducted. The precise question to be decided is this:
If a defendant timely files a properly verified motion for change of venue under Article 31.03, V.A.C.C.P., is it an abuse of discretion and a denial of due process for the trial court to overrule the motion without affording defendant a pretrial hearing to present evidence in support of the motion?
A criminal defendant is guaranteed a fair trial by an impartial jury. Article 1, Section 10, Texas Constitution; Sixth Amendment to the United States Constitution; Article 1.05, V.A.C.C.P. Due process provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of venue. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
Article 3, Section 45, of the Texas Constitution provides:
“The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose.”
The history of Chapter 31, V.A.C.C.P., demonstrates the tenacity with which the Texas Legislature has discharged its obligations under the above provision. Articles 31.03 and 31.04, V.A.C.C.P., the provisions controlling the disposition of this case, provide, in pertinent part, as follows:
“A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine:
“1. That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; and
“2. That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial.
“The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.” (Emphasis added.)
Apart from the venue statutes, as an additional safeguard to ensure an accused an impartial jury and fair trial, the Legislature has provided that an individual juror may be challenged for cause under Article 35.16, V.A.C.C.P., for the following reasons:
“9. That he has a bias or prejudice in favor of or against the defendant;
“10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged;... ”
In the instant case the trial court refused to conduct a pretrial evidentiary hearing as mandated by the language of Articles 31.03 and 31.04, V.A.C.C.P., on appellant’s controverted motion for change of venue. Instead, the trial court predicated its denial of appellant’s motion solely upon the successful qualification of a jury panel. In so doing the court confused the grounds for change of venue with the grounds for juror challenge for cause.
In the case of Randle v. State, 34 Tex.Cr.R. 43, 28 S.W. 953, confusion similar to that evidenced in the trial of this case concerning the proper procedure connected with a motion to change venue resulted in the reversal of a murder conviction. In that case, the trial court began a pretrial hearing on the motion to change venue but stopped it sua sponte because the evidence reflected a prejudice against the cause (a Dallas murder case) and not the individual defendant on trial. The trial court concluded that Article 578, C.C.P., (the predecessor of Article 31.03, V.A.C.C.P.) contemplated a change of venue only when the evidence showed a prejudice directed at the individual defendant. It further concluded that evidence of a prejudice against the cause would not justify a change of venue unless a fair and impartial jury could not be obtained through regular jury voir dire procedures.. Article 579, C.C.P. This Court concluded that such a distinction was inappropriate and operated to deprive the defendant of a fair and impartial jury. As stated by this Court in Randle and of particular significance to the case at bar:
“The prejudice in the county may be such that jurors will qualify themselves who are not impartial,.
******
“We will not pursue this line of discussion further, but desire to say in regard to change of venue that it frequently occurs that good men, honest citizens, swear that the accused cannot obtain a fair trial because of prejudice in the county. Ignorant people, persons uninformed as to the legal methods provided for obtaining juries, become apparently astonished at such affidavits and inquire if it be true that 12 honest, fair men cannot be found in a county with whom to try the accused. Such questions, by their frequency of occurrence, have almost ceased to cause surprise, but evidence a wonderful degree of ignorance.... [Hjence the jury must be selected under the rules and by the methods prescribed by law, and all laws in regard to changes of venue are enacted with a view to this fact. As has been forcefully said by the supreme court of Iowa in State v. Nash, 7 Iowa (347), 371: ‘The right to speedy and public trial by an impartial jury is guarantied [sic] by the constitution of this state to all persons accused of crime. It becomes us not to place a light estimate upon a right secured to us by such high authority. It is important to maintain the usefulness of our whole judicial system, that no suspicion of popular excitement in the administration of the law should be allowed to impair the public confidence in the fairness and impartiality of judicial proceedings. An excited state of public feeling and opinion is always the most unfavorable for the investigation of the truth. Not only should the mind of the juror be wholly without bias and prejudice, it should not only be free from all undue feeling and excitement in itself, but it should be as far as possible removed from the influence of prejudice and feeling and excitement in others. A circumstance of small importance in itself may often, in the midst of a community stirred by passion and excitement, serve to turn the scales of justice. It is a difficult matter for a court in all cases to draw the true line of distinction, and to say when there is and when there is not such a state of popular feeling and prejudice as to prevent a fair and impartial trial. Every cause must be judged by its own circumstances. * * * There is, however, to be guarded against, a feeling and a prejudice not only within but without the jury box; and a jury, however right their intentions, are not always proof against the sympathies of the crowd. Influence of popular excitement and prejudice is too strong for the strongest resolution.’ ”
In 1898 this Court recognized, in Meyers v. State, 39 Tex.Cr.R. 500, 46 S.W. 817, the distinction between the concept of change of venue and juror challenges for cause:
“[T]he jury is obtained and impaneled under rules of law, and the law providing for the change of venue proceeds upon the hypothesis that the prejudice may be so great and universal in the county as that improper jurors may be obtained, notwithstanding every test may be applied to them. If there were no danger of obtaining prejudiced jurors on the panel, then the law providing for a change of venue upon this ground has no foundation in reason. If obnoxious jurors could be detected and kept from the panel by the question provided for in the Code, then there would be no reason for a change of venue. But... the law providing for the change proceeds upon the assumption that, notwithstanding all tests are made, there may be such a prejudice in the county as will render it probable that an impartial juror might serve.”
In Faulkner v. State, 43 Tex.Cr.R. 311, 65 S.W. 1093, the Court noted that:
“Prejudice is a sinister quality. It may possess a man and he not be aware of it; or, being aware of it, he may purposely conceal it, in order that he may vent his revenge.” Also see Cortez v. State, 44 Tex.Cr.R. 169, 69 S.W. 537.
The aforementioned cases recognize the problem of obtaining answers on voir dire affected by conscious or subconscious juror prejudice resulting from widespread inflammatory news coverage. Therefore, a change of venue is a remedy to assure an accused a fair trial when extensive news coverage has raised substantial doubts about the effectiveness of voir dire for obtaining an impartial jury. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pair Trial and Free Press, Comments, pp. 126-128, (approved draft, 1968).
As we understand recent Supreme Court cases, the test to be applied by the court in ruling on a change of venue motion is:
“Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial.” Adami v. State, Tex.Cr.App., 524 S.W.2d (693) 695, quoting Pamplin v. Mason, 864 P.2d 1 (5th Cir. 1966); Morris v. State, Tex.Cr.App., 488 S.W.2d 768; Bridges v. State, Tex.Cr.App., 471 S.W.2d 827.
We observe that under the rule in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Adami v. State, supra, the trial court is not precluded from utilizing voir dire to help gauge the “community climate of opinion as to a defendant”; however, regardless of the successful qualification of a jury panel, the evidence adduced during the pretrial hearing on the venue motion may dictate that a change of venue be granted in order to assure the accused a fair and impartial trial. See also Freeman v. State, Tex.Cr.App., 556 S.W.2d 287.
Some relevant factors in determining whether outside influences affecting the community climate of opinion as to a defendant are inherently suspect are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the 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) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See generally, Annotation, 33 A.L.R.3d 17 (1970). See also Adami v. State, supra; Freeman v. State, supra.
In the instant case the trial court refused to allow appellant to introduce evidence in support of his motion for change of venue and overruled his motion following the successful qualification of a jury panel. In ruling on appellant’s motion the trial court was only concerned with whether it was possible to draw veniremen who would testify on voir dire that they would give defendant a fair trial, uninfluenced by what they had heard or seen outside the courtroom.
As discussed, supra, the successful qualification of a jury panel is not the sole criterion in determining whether a defendant is entitled to a change of venue. See Rideau v. Louisiana, supra; Adami v. State, supra. The primary factor for the court’s consideration in ruling on a venue change is whether the “outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect.” Adami v. State, supra; Freeman v. State, supra; Morris v. State, supra; Bridges v. State, supra; Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966).
Appellant was entitled to a change of venue if he could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which could affect the answers on voir dire, or the testimony of witnesses at trial or that for any other reason a fair and impartial trial could not be had in Bexar County.
As will be noted upon reference to Articles 31.03 and 31.04, the trial court is vested with the responsibility of determining the “truth and sufficiency” of the affidavits alleging the grounds for a change of venue and when an issue is formed as to those grounds by the filing of controverting affidavits, that issue “shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.” As already demonstrated, the issues raised by the motion to change venue affidavits cannot be fully and adequately tried through the more narrow jury voir dire procedure. See Article 35.16, Sections 8 and 9, V.A.C. C.P. Further, the trial court’s denial of a defendant’s motion for a change of venue, without allowing the defendant an opportunity to present evidence in support of his motion, was expressly condemned by this Court in Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019. The dissent admits that the trial court failed to comport with “accepted procedure,” but seeks to excuse the omission by analogy. The analogy to the trial court’s discretion in regulating trial procedure vis-a-vis evidentiary rulings and the perfecting of a bill of error with respect thereto ignores a fundamental distinction between the questions involved. The dissent’s analogy presupposes the propriety of conducting the trial. The procedure demanded of the trial court under Chapter 31, V.A.C.C.P. is for the threshold issue of whether a trial should be conducted in the county involved. The timing of the Chapter 31 hearing is critical. It is no less mandatory a statute for its failure to expressly designate the precise timing for a hearing. To argue that the inquiry mandated by Chapter 31 could be just as efficaciously conducted in a hearing on a motion for new trial is to ignore the venue issue’s threshold nature. It is indeed putting the horse behind the cart. The defendant has made his offer of proof with the affidavits filed in support of the motion for change of venue. The filing of controverting affidavits by the State “joins the issues” and thus requires the trial court to resolve this preliminary question. The dissent properly places the burden of proof on the defendant for proof of the allegations for a change of venue. The record clearly reflects that the defendant was prepared to meet this challenge, but was frustrated by the trial court’s failure to conduct a pretrial hearing on the issue. The dissent claims that the trial court was within its discretion when it denied the motion to change venue without a showing by the defendant — a showing which the trial court forestalled by refusing the pretrial evidentiary hearing. Such mental gymnastics should not be played when questions of admittedly constitutional dimension are involved.
We note that during the motion for new trial hearing the trial court allowed appellant to put on evidence in support of his bill of exception to the court’s denial of his motion for change of venue. While the evidence adduced during the hearing is included in the record before us on appeal we decline to examine it in order to determine whether the trial judge abused his discretion in not granting appellant a change of venue. That is not the issue before us. The abuse of discretion condemned here is the trial court’s failure to grant appellant a pretrial hearing on his change of venue motion. If the hearing on a change of venue is postponed until after trial, a great deal of time, effort and money will be wasted if the evidence adduced during the post-trial hearing compels a new trial in another county. Further, it is unlikely that following a jury verdict of guilty in a highly publicized mass, sex-torture killing case the trial court would readily erase the jury’s pronouncement and grant appellant another trial. Lastly, such a procedure would allow the trial courts to escape their duty of making an independent assessment of the merits of the change of venue motion and to delegate that responsibility to an appellate court. The dictates of due process and Chapter 31, V.A.C.C.P., necessitate that a defendant’s right to an impartial jury and fair trial be protected in the first instance by the trial court. A defendant must not needlessly be denied due process by a trial court and suffer the emotional rigors and expense of a criminal trial, and possibly incarceration pending appeal only to be afforded due process months or even years later by an appellate court. Such a state of affairs is in itself a denial of due process.
We do not call for a “fantasy world” nor do we address the issues raised by the coexistence of the rights of a free press and the right to a fair and impartial jury trial. We hold only that when there is created an issue as to the propriety of venue under Chapter 31, V.A.C.C.P., it is to be resolved only after, at a minimum, a pretrial evidentiary hearing.
Therefore, we are constrained to hold under the cases cited and the facts of this case that the trial court’s refusal to grant appellant a pretrial hearing to introduce evidence in support of his motion for change of venue precluded a determination, as contemplated by our law, of the community attitude toward appellant and constituted a deprivation of due process.
In the event of a retrial, we must express our deep concern over appellant’s contention that he was denied a fair trial when the trial court refused to sequester the jury and overruled his objection to placing newsmen within the bar.
The record reflects that there was an extra jury box within the courtroom. This extra jury box was across the room and facing the jury inside the bar. During the trial artists and reporters representing the various news media occupied this box. On July 4, 7, 9, 12, and 16, a picture of one or more jurors was on the front page of a local newspaper,, having been sketched by one of the artists in the extra jury box. Other drawings of jurors were televised by all the major television stations.
Appellant moved to sequester the jury two months prior to trial, which motion was denied. He renewed that motion during voir dire and again after the jury was selected; both motions were denied. On July 10, 1974, pursuant to a defense motion, the trial court questioned the jury to determine any “outside contact.” While all the jurors denied it would affect their verdict, it was established that two jurors had been personally contacted by newsmen concerning the case. Six jurors stated that members of their family had been contacted bynews-men, and one juror had been contacted by a friend. Three jurors were not contacted in any way. After questioning the assistant manager of a local newspaper, the trial court admonished the press not to contact the jurors or members of their family and not to attempt to discuss the case with them. Appellant again moved to sequester the jury, which motion was denied.
On July 11,1974, the court, after learning of further possible contact by the media, questioned six jurors. Two jurors stated they had not been contacted. Three jurors stated members of their family had been contacted and one juror stated that her son’s girlfriend had been contacted. The court then refused to question the remaining jurors individually but simply addressed one general question to the panel concerning possible contact by the news media. There was no response from the jury. Later, appellant’s motion to sequester the jury was once more denied.
In this State the decision to sequester the jury is within the discretion of the trial court. Article 35.23, V.A.C.C.P.; Freeman v. State, 556 S.W.2d 287. However, in exercising that discretion in such a highly publicized case as the one before us today, the trial court must exercise caution to ensure the accused is afforded due process and a fair trial. In reaching a decision, the trial court must necessarily take into consideration the potential impact of the news media on the jurors.
In Estes v. Texas, 381 U.S. 532, 545, 85 S.Ct. 1628, 1634, 14 L.Ed.2d 543 (1965), the United States Supreme Court noted the potential impact of one medium, television, on the jurors:
“The conscious or unconscious effect that this may have on the juror’s judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence. Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them. If the community be hostile to an accused a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led ‘not to hold the balance nice, clear and true between the State and the accused. * * * ’”
Estes was reversed even though the jurors were sequestered while in the instant case they were not.
In the later case of Sheppard v. Maxwell, supra, the United States Supreme Court stated:
“Prom the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.”
We do not here decide whether the facts in the instant case present the great abuses of discretion which were apparent in the Estes and Sheppard cases nor whether the failure to sequester the jury denied appellant due process. In the event of a retrial, we are confident the trial court will take steps to remove any basis for this due process question to again be raised.
For the reasons stated herein, the judgment is reversed and the cause remanded.
[OPINION BY DOUGLAS, Judge, type=dissent]
DOUGLAS, Judge,
dissenting.
The majority holds without discussing the evidence that the court abused its discretion in denying appellant’s motion for change of venue. It does so solely on the ground that the court did not let him put on evidence at a pretrial hearing, even though the evidence presented by appellant in support of his motion was insufficient to merit a change of venue. Even if this evidence had been presented prior to trial, the court would not have committed error in denying a change of venue. Under such circumstances, any error committed by the court in delaying the hearing on the motion until the conclusion of testimony was harmless.
The record is comprised of 5,557 pages in twenty-three volumes, accompanied by numerous exhibits. Briefly summarized, the record shows that on August 8, 1973, appellant was taken into custody by Pasadena police in connection with the murder of Dean Arnold Corll. After receiving a Miranda warning from the municipal judge of Pasadena, appellant made to police officers a voluntary written statement which was admitted into evidence. In this statement he described his three year relationship with Dean Corll and the activities which culminated in the murders.
Appellant stated that at the age of fourteen he was introduced to Corll who told him that he belonged to a Dallas organization engaged in the buying and selling of teen-aged boys. Corll offered appellant monetary rewards in exchange for his services in procuring young boys. Approximately a year after he became acquainted with Corll, appellant lured a male teenager to Coril’s home. There he tricked the young man into putting on handcuffs from which he could not escape. Corll then bound the boy with rope and gagged him with adhesive tape. Appellant was paid $200 for the boy. He later discovered that this victim whom he had procured had been homosexually raped and murdered by Corll.
Beginning with this incident, appellant described for police a series of murders in which he had collaborated with Dean Corll and David Owen Brooks. All of the victims were handcuffed both hand and foot to a large board in Corll’s home where he homosexually raped and committed sodomy upon them. Appellant, Corll and Brooks subjected the victims to various forms of physical and sexual torture before shooting or strangling them to death. The nude bodies of the boys were transported in a wooden “body box” to three sites outside the city of Houston where, wrapped in plastic and tied with rope, they were buried in shallow graves. As he made these revelations, appellant led officers on a tour of disinterment which ultimately resulted in the recovery of twenty-seven bodies.
Appellant was indicted by the Harris County grand jury for the murder of six of the deceased individuals. On December 17, 1973, the Honorable William M. Hatten, Judge of the 176th District Court of Harris County, commenced hearings on appellant’s pretrial motions. Appellant filed no motion for change of venue in Harris County. On January 16,1974, defense counsel filed a motion for continuance alleging that because of the “massive dissemination of potentially prejudicial material by all elements of the news media” appellant could not obtain a fair trial at that time. On February 1,1974, Judge Hatten, on his own motion, entered an order changing venue to the 175th District Court of Bexar County.
On April 8,1974, pretrial hearings began in the 175th District Court, the Honorable Preston H. Dial, Jr., presiding. The following day appellant filed a motion for change of venue in accordance with Article 31.03, V.A.C.C.P., supported by his own sworn affidavit and those of nine compurgators. Each affidavit stated that, in the compurgator’s opinion, there existed so great a prejudice against appellant in Bexar County that he could not obtain a fair and impartial trial. Four controverting affidavits were filed by the State challenging both the appellant’s motion for change of venue and the ability of appellant’s compurgators to determine whether or not such a pervasive community prejudice against the appellant existed in Bexar County. See Article 31.04, V.A.C.C.P.
On April 22, 1974, the court entertained appellant’s previously filed motion for change of venue and stated that it would not take evidence on the motion at that time, but offered to let him place in the record anything which he desired in the form of affidavits or hearsay statements. Under this ruling, appellant could have made an offer of proof under Article 40.-09(6)(d), V.A.C.C.P., which provides:
“(d)... The court, in its discretion, may allow an offer of proof in the form of a concise statement by the party offering the same of what the excluded evidence would show, to be made before the reporter out of the presence of the jury as an alternative method of causing the record to show such excluded testimony or other evidence, and in the event the record contains transcription of the reporter’s notes showing such an offer of proof the same shall be accepted on appeal as establishing what such excluded testimony or other evidence would have consisted of had it been admitted into evidence.”
The court held its ruling on appellant’s motion in abeyance pending the outcome of voir dire examination of the prospective jurors, stating that if a jury panel of thirty-two could not be successfully chosen in Bexar County it would grant the motion for change of venue. Following the qualification of the panel of thirty-two, the court overruled the motion for change of venue.
Prior to trial, appellant filed a petition for writ of mandamus in the Supreme Court of Texas seeking to compel the trial court to rule on the motion for change of venue prior to voir dire. The writ was denied.
The State contends that the denial of a pretrial evidentiary hearing on the motion for change of venue was necessary in order to prevent the proliferation of needless pretrial publicity. The State further contends that this decision on the part of the trial judge was made in response to the actions of appellant’s counsel whose object was to use the news media’s right to report the evidence adduced at pretrial hearings as a vehicle for spreading the abhorrent facts of the crime in each city in which the defendant was to be tried until an impartial jury could no longer be selected there. The State urges that appellant’s counsel, at pretrial hearings in Houston, introduced so much damaging testimony that it prevented a trial from being held there. There was more incriminating evidence introduced by appellant in Houston than there was by the State during the trial on the merits. It was counsel’s aim, the State alleges, to so widely publicize the facts of the case as to ultimately render it impossible for appellant to be tried anywhere in the State of Texas.
Although the trial court did not follow the accepted procedure in overruling appellant’s motion for change of venue without conducting an evidentiary hearing, it did not commit reversible error. This Court should consider appellant’s case as one in which the trial judge erroneously refuses to admit testimony before a jury but later permits the defendant to develop such evidence to determine if the error is reversible.
When appellant’s motion for change of venue was entertained, the court informed him that it did not intend to hear evidence on the motion at that time. Article 31.04, supra, does not specify when the hearing on a motion for change of venue is to be conducted. Thus, no mandatory statute was violated. The court, moreover, permitted appellant to introduce anything he wished in the form of additional affidavits or hearsay statements as an offer of proof. When a defendant offers testimony during a trial and the court excludes it, error could be preserved by permitting the witness to testify outside the presence of the jury. If the court refuses to allow this, the proper way to show error is for the defendant to make an offer of proof. See Article 40.09(6)(d), supra.
Although given the opportunity, appellant failed to make an offer of proof showing the substance of the evidence which he would have introduced at an evidentiary hearing and that such evidence would demonstrate the existence of a community prejudice against appellant so strong as to render a fair and impartial trial improbable. There was no proof by any witness presented at the motion for new trial to show such a prejudice.
While it is true that at the motion for new trial appellant introduced extensive evidence showing the existence of publicity in the community, the mere showing of publicity does not itself establish the existence of prejudice or necessitate 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 (1978); Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1976); Garcia v. State, 513 S.W.2d 82 (Tex.Cr.App.1974); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Bridges v. State, 471 S.W.2d 827 (Tex.Cr.App.1971); Wallace v. State, 458 S.W.2d 67 (Tex.Cr.App.1970); Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Mendez v. State, 362 S.W.2d 841 (Tex.Cr.App.1963).
Appellant requested that he be allowed to immediately introduce evidence on a bill of exception. Counsel was informed by the court that he would be given an opportunity to do so at a later time. Appellant was aware that the court did not intend to preclude such evidence but only to delay the hearing of the evidence to prevent undue publicity. Such a delay was not error. In Weeks v. State, 161 Tex.Cr.R. 202, 275 S.W.2d 685 (1955), the refusal of the court to retire the jury at the defendant’s request in order to perfect his bill of exception was held not to be error in view of the court’s recalling and tendering of the witness to the defendant at the conclusion of all the testimony for the purpose of permitting counsel to perfect his bill. This Court held that since the defendant was eventually afforded a full opportunity to perfect his bill of exception no harm was shown. Accord Pate v. State, 171 Tex.Cr.R. 126, 345 S.W.2d 532 (1961); Davidson v. State, 162 Tex.Cr.R. 640, 288 S.W.2d 93 (1956).
As it had promised, the court in the present case allowed appellant an opportunity to make an offer of proof during the trial and to present evidence on his bill of exception at the conclusion of testimony. All of the evidence presented at that time is before this Court.
Appellant’s application for change of venue was controverted by the State. Appellant, therefore, bore the burden of presenting evidence which would prove the existence of prejudice in the community. Absent such a showing, the trial court acted within the limits of its discretion in denying a change of venue. James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977); Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975); Mansell v. State, 364 S.W.2d 391 (Tex.Cr.App.1963).
In Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975), this Court recognized that the question of change of venue is one of constitutional dimension. But there is no constitutional infirmity in a trial court’s denial of a change of venue if a defendant has actually received a trial by an impartial jury. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 103 (1962). The test of whether such an impartial jury has been obtained is whether outside influences affecting the community’s climate of opinion as to the defendant are so inherently suspect as to result in a probability of unfairness. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Adami v. State, supra; Bridges v. State, supra. It is incumbent upon this Court to determine, from all the facts and circumstances, whether appellant was afforded the kind of impartial jury contemplated by Sheppard v. Maxwell. This determination can properly be made by considering the answers elicited on the voir dire of the prospective jurors. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Freeman v. State, supra; Garcia v. State, supra; Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973); Wallace v. State, supra; Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967); McIntyre v. State, 172 Tex.Cr.R. 510, 360 S.W.2d 875 (1962).
Appellant urges that the allegedly “lurid and pervasive” publicity that occurred in Bexar County could have had no other effect than to inspire prejudice against him among potential jurors. The record on voir dire reflects that one hundred and twenty-four prospective jurors were called. Of these, twenty-one were excused for reasons of health, age, or statutory exemption. Seven were excused because of an inability to follow some aspect of the law. Sixty-four were excused because they held established conclusions as to the guilt or innocence of appellant. This fact does not in itself demonstrate the inability of appellant to be tried by an impartial jury. In other cases where a substantial number of veniremen stated on voir dire that they believed the defendant was guilty, this Court has held that identifiable prejudice was nevertheless not shown. Adami v. State, supra (18 of 72 veniremen); Taylor v. State, supra (39 of 112); Handy v. State, 139 Tex.Cr.R. 3, 138 S.W.2d 541 (1940) (45 of 99).
Fifty-four prospective jurors had read of the case in the newspapers, heard of it on television, or both. The mere fact that a venireman has read or heard of a case is not evidence of community prejudice nor is it grounds for disqualification. Freeman v. States, supra; Knight v. State, supra; Mor ris v. State, supra; McIntyre v. State, supra; Handy v. State, supra.
In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court of the United States recognized that jurors should neither be expected to nor required to be ignorant of the facts and issues involved and that most of those best qualified to serve will have formed some impression as to the merits of the case. See also Freeman v. State, supra; Knight v. State, supra; Clifford v. State, 424 S.W.2d 233 (Tex.Cr.App.1968); Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1964).
In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court of the United States upheld the robbery conviction of a defendant who was a notorious jewel thief and convicted murderer. The defendant moved for a change of venue alleging that because of pretrial publicity the jurors were aware of his prior criminal record and of facts about the crime charged. After examining the testimony elicited on voir dire, the Court sustained the trial court’s denial of a change of venue holding that there was demonstrated no such hostility toward the defendant on the part of the jurors who served at trial as would suggest a partiality that could not be laid aside. The Court reached this conclusion despite the fact that some individuals who served on the jury recalled the robbery for which the defendant was being tried and that all of the jurors had knowledge of the defendant’s previous crimes. In observing that 20 of 78 potential jurors were excused because of pre-formed opinions as to the defendant’s guilt, the Court stated:
“This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.”
Finally, the majority distinguished the defendant’s trial from those in Irvin v. Dowd, Rideau v. Louisiana, Estes v. Texas, and Sheppard v. Maxwell, in which proceedings were utterly corrupted by press coverage and conducted in a circus-like atmosphere. The trial of appellant in the present case, likewise, holds nothing in common with those earlier cases in which the “courthouse [was] given over to accommodate the public appetite for carnival.” 421 U.S., at 799, 95 S.Ct., at 2036.
Contrary to appellant’s contention that publicity occurring immediately prior to trial aroused public passions against him, only three panelists said that they had read or heard of the case recently or over an extended period of time. Twenty indicated that the publicity to which they had been exposed occurred at the time of appellant’s arrest. Twenty-eight prospective jurors said they had read very little or nothing about the case and many could not recall what it was that they had read. Eight jurors who had been exposed to the media stated that they did not trust the press and placed no credence in what they had read. Noteworthy is the fact that only four individuals stated that they had read or heard a considerable amount of publicity concerning the crime.
Among the twelve who were selected to serve on the trial jury, five stated that they had read nothing about the case. Two of these individuals had not listened to news reports on television. Five of the remaining seven said that they knew of the case but had no opinion about it and were completely uninfluenced by any publicity. Only two jurors indicated that publicity had made some impression on them, but both stated that they could disregard all that they had seen or heard and render a verdict based solely on the evidence presented. The fact that a juror has formed an opinion in the past will not serve to disqualify him if he satisfies the court that he can and will lay aside the opinion he has formed from hearsay or newspaper accounts and base his verdict exclusively on the testimony admitted at trial. Freeman v. State, supra; Adami v. State, supra; Scott v. State, 490 S.W.2d 578 (Tex.Cr.App.1973); Klinedinst v. State, 265 S.W.2d 593 (Tex.Cr.App.1954), cert. denied 347 U.S. 933, 74 S.Ct. 534, 98 L.Ed. 1082 (1954).
To demand that a criminal defendant be tried in a community untouched by the news media is to demand that our judicial system function in a fantasy world. As we stated in Morris v. State:
“Our courts cannot and do not operate in a vacuum. Courts deal with people and crimes which are newsworthy. To require a trial of jurors who had never heard of a highly publicized crime would be impractical if not impossible. Certainly, it was never intended that jurors were to be selected from those who did not read newspapers or keep up with current events through other media. Jurors selected from such a group, if there are enough to be called a group, would not be representative. To hold otherwise would be to hold that the perpetrator of a very highly publicized crime such as the assassination of a president, a governor or any widely known person could never be tried.” 488 S.W.2d, at 772.
The majority refuses to examine the evidence adduced at the hearing on appellant’s bill of exception in order to determine whether the trial court abused its discretion. Yet, if this Court is to consider the record as a whole, it is precisely this evidence which must be reviewed in analyzing whether or not the court’s action constituted harmless error. Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969). At the hearing on the bill of exception, appellant introduced testimony and numerous exhibits demonstrating the existence of considerable publicity in Bexar County concerning the crime. Appellant’s exhibits included many newspaper clippings and newsreel films. As has already been noted, however, the mere showing that publicity has occurred does not establish the existence of prejudice. Moreover, the introduction of newspaper clippings and newsreels is insufficient evidence upon which to demand a change of venue without a further showing that by reason of such news accounts a pervasive prejudice has been created. Freeman v. State, supra; Creel v. State, supra; Wallace v. State, supra. Appellant made no such showing. The State’s controverting affidavits were sufficient to raise the issue of the ability of appellant’s compurgators to assess the degree of prejudice present in the community. Article 31.04, supra; Mansell v. State, supra. Yet not one compurgator was called as a witness by the defense. No one testified as to any community prejudice against appellant.
The evidence presented by appellant on the issue of venue stands in marked contrast to the evidence introduced by the defendant in Adami v. State, supra. In addition to introducing copies of news stories concerning the crime, the defendant in Adami elicited testimony from nine witnesses, almost all of whom had formed their conclusions regarding community prejudice after speaking to between fifty and ninety other individuals residing in the county. See also Freeman v. State, supra; Ransonette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975).
Other facts and circumstances must be taken into consideration in determining whether publicity has rendered the fair and impartial trial of a defendant improbable. In Morris v. State, supra; Adami v. State, supra; and Clifford v. State, supra, this Court considered it significant that several months intervened between the commission of the offense and the trial of the defendant (ten, seven, and ten months in each case, respectively). In the present case appellant was tried fourteen months after his arrest. None of the jurors or prospective jurors knew the appellant, the victims or any of the witnesses. When appellant was tried, one change of venue had already been granted from Houston, 190 miles away. Bexar County, to which venue was transferred, had a population of over 850,000 individuals and in excess of 333,000 qualified jurors. In Freeman v. State, by comparison, the defendant was tried for the highly publicized capital murder of a deputy sheriff in Atascosa County, then populated by only 18,696 persons with 9580 eligible jurors.
In Johnson v. State, 467 S.W.2d 247, 251 (Tex.Cr.App.1971), the defendant moved for change of venue because of widely disseminated publicity. The Court wrote:
“In connection with the change of venue contention, it is well to observe that it was shown that Dallas County has a population of over one million persons. This is a far cry from what was before this Court in Rogers v. State, 155 Tex.Cr.R. 423, 236 S.W.2d 141, and Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003, where the widespread publicity in a sparsely settled county required a change of venue.”
Having presented no evidence of pervasive community prejudice, appellant asks this Court to presume its existence. This should not be done. In Wallace v. State, supra, we stated:
“[A]nd an inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained articles descriptive of the offense, or editorials denunciatory of the accused, provided the accounts are fair, not inflammatory, and apparently published for the purpose of informing the public of current events.... ” 458 S.W.2d at 70, quoting 16 Tex.Jur.2d, Criminal Law, Section 246 (1960).
The United States Court of, Appeals for the D.C. Circuit conceded in United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), that, in extreme circumstances, prejudice to a defendant’s right to a fair trial by a panel of impartial jurors may be presumed because of pretrial publicity. It is difficult to imagine a criminal prosecution attended by more intensive pretrial publicity than was the trial of the three Watergate defendants, H. R. Haldeman, John Erlichman and John Mitchell. Included in the extensive collection of publicity gathered by the defendants were articles hostile in tone and accusatory in nature. Nevertheless, the court found no reason, despite such admittedly massive publicity, to presume that the population of Washington, D. C. was so aroused against the defendants and so unlikely to be able to objectively judge their guilt or innocence that their due process rights were violated by the district court’s refusal to grant a change of venue.
A review of the news accounts which appeared in Bexar County reveals that although they reflect a tragic occurrence of great news interest to the public, they appear to be informative, dispassionate and fair.
In Beck v. Washington, Mr. Justice Clark states:
“While this Court stands ready to correct violations of constitutional rights, it also holds that ‘it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality’.” 369 U.S., at 558, 82 S.Ct., at 964, 8 L.Ed.2d at 112, quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 100 L.Ed. 1331 (1956).
The evidence introduced by appellant was insufficient to require a change of venue. Even if the evidence had been presented prior to trial, appellant’s motion, for change of venue should not have been granted. The refusal to grant a change of venue was harmless.
All of the evidence that appellant wanted to offer before the trial on the merits began is before this Court. It does not show that he was entitled to a change of venue. This case should not be treated differently from other cases where evidence has been excluded because the evidence when later offered shows no reversible error. We should consider substance, not form.
The Supreme Court of Texas in Fort Worth v. Taylor, 427 S.W.2d 316 (Tex.1968), followed a similar rule. That Court assumed that the lower court erred in granting a summary judgment because a fact issue was raised but concluded that it should not remand the cause because a different result would not be reached.
No reversible error has been shown. The judgment should be affirmed.
VOLLERS and W. C. DAVIS, JJ., join in this dissent.
See Article 31.01, V.A.C.C.P.
On the joint motion of appellant and the State, Judge Hatten also ordered a venue change from Harris County to Bexar County in appellant’s five other causes where they were consolidated for trial with Cause No. 74CR-424. .See Article 31.04, V.A.C.C.P.
A change of venue motion drafted in compliance with Article 31.03 and supported by properly verified affidavits entitles a defendant to a change of venue as a matter of law, unless the motion is controverted by the State. Wall v. State, Tex.Cr.App., 417 S.W.2d 59; Flores v. State, Tex.Cr.App., 493 S.W.2d 785.
In Parker v. State, 91 Tex.Cr.R. 68, 238 S.W. 943, we acknowledged that on a controverted motion for change of venue the trial judge has the duty to try the issue and grant the motion if warranted by the law and the facts. Although Parker was decided under Article 567, Vernon’s Ann.C.C.P. (1925), the predecessor statute to Article 31.04, V.A.C.C.P., the statutes are identical in language except 31.04 substituted the word “motion” in lieu of the word “application.”
At the hearing on his motion for new trial, appellant introduced articles from four newspapers: the San Antonio Express, the San Antonio News, the combined Sunday Express-News, and the San Antonio Light. It was stipulated that the coverage of the newspapers to households was as follows: The San Antonio Express: 75,075 61,986 (San Antonio daily average) (Remainder of Bexar County daily average) The San Antonio News: 68,782 60,130 (San Antonio daily average) (Remainder of Bexar County daily average) The Express-News: 152,107 (Combined circulation) It was further stipulated that the daily average circulation for the San Antonio Light was as follows: Weekday evenings: 107,435 Saturday morning; 103,229 Sunday: 137,838 According to 1973 estimates used by all the papers, San Antonio had 229,300 households while Bexar County had 240,900 households. The evidence compiled by the appellant and introduced at the hearing on motion for new trial consisted of 240 news stories which appeared in the four newspapers from August, 1973, to the end of July, 1974. Of those articles, 102 appeared during trial and jury selection which began July 1, 1974, The television coverage of the events surrounding the crimes and of the trial itself by local television stations was just as overwhelming. The estimated ratings of local news telecasts by the three major San Antonio television stations, prepared by Arbitron Television, are as follows: WOAI-TV 11:30 a. m. - 12:00 o’clock noon 29,000 total TV households with 39,000 adults WOAI-TV 6:00 - 7:00 p. m. 69,000 total TV households with 103,000 adults WOAI-TV 10:00 - 10:30 p. m. 64,000 total TV households with 98,000 adults KENS-TV 12:00 - 12:30 p. m. 40,000 total TV households with 55,000 adults KENS-TV 10:00-10:15 p. m. 81,000 total TV households with 126,000 adults KSAT-TV 6:00 - 6:30 p. m. 32,000 total TV households with 50,000 adults KSAT-TV 10:00-10:30 p. m. 52,000 total TV households with 84,000 adults The extent of this coverage in Bexar County is reflected by the WOAI-TV log of the Henley “script rundown.” This log reveals that from this single television station there were 85 telecasts dealing with the case from August, 1973, through July, 1974. These telecasts ranged in duration from 10 seconds to a full three minutes. Radio coverage was just as extensive. The “Henley log” from one radio station, KBVC, revealed that there were 608 wire stories and rewrites, 218 of which were during July, 1974. The pervasiveness of this coverage was demonstrated by the fact that of 124 jurors questioned, over one half, 64, had formed an opinion as to the appellant’s guilt or innocence.
We note that in Sheppard newsmen were allowed to sit at a table inside the bar. In discussing this fact, the Court stated: “At a temporary table within a few feet of the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge’s rulings away from the hearing of the public and the jury.” While we do not here reach this issue, it cannot be denied that such a procedure only serves to impress upon the jury the sensational nature of the case.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In a letter to Harris County District Attorney Carol Vance and defense counsel Will Gray and Edwin Pegelow, dated February 25, 1974, and included in the record, Judge Dial wrote: “I note that there has been no ruling on the materiality of the confessions or the admissibility of the oral confessions. Apparently both sides were afforded full opportunity to develop the evidence material to any confessions. I would like to avoid another evidentiary hearing on the confessions as this might generate needless publicity in Bexar County.”
Although not directly in point, the procedure employed after the denial of a motion for continuance is comparable. When a court erroneously overrules a motion for continuance, a defendant, in order to present reversible error, must show what testimony an absent witness would have given had he been present during the trial. If the testimony adduced at the motion for new trial does not show that its exclusion harmed the defendant, then no reversible error results. Leach v. State, 548 S.W.2d 383 (Tex.Cr.App.1977); McCloud v. State, 494 S.W.2d 888 (Tex.Cr.App.1973); Palasota v. State, 460 S.W.2d 137 (Tex.Cr.App.1970).
Elmer Wayne HENLEY, Appellant, v. STATE of Texas, Appellee.
Nos. 13-81-227-CR, 13-82-290-CR to 13-82-294-CR.
Court of Appeals of Texas, Corpus Christi.
Sept. 16, 1982.
Discretionary Review Refused Dec. 22, 1982.
Duncan Neblett, Jr., Corpus Christi, Will Gray, Simonton, for appellant.
Larry P. Urquhart, Asst. Dist. Atty., John B. Holmes, Jr., Dist. Atty., Carol S. Vance, Houston, for appellee.
Before NYE, C.J., and YOUNG and GONZALEZ, JJ.
[OPINION BY GONZALEZ, Judge. type=majority]
OPINION
GONZALEZ, Judge.
These are appeals from murder convictions by a jury where punishment was assessed at life imprisonment in each cause. At his request, appellant was tried simultaneously by the same jury on six murders that occurred in Harris County in 1972-1973. The indictments are based on the murders of six young men that had been procured by appellant for homosexual activities. This case was tried in Nueces County on a change of venue. This is a second trial of these cases. Convictions from the first trial in Bexar County were reversed on the basis that the trial court committed error in not allowing an evidentiary hearing on a change of venue motion. Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1979).
The sufficiency of the evidence is not challenged. In eleven grounds of error, appellant alleges that the court committed error in denying appellant’s challenge for cause of several jurors who allegedly could not consider the minimum punishment, had formed an opinion as to appellant’s guilt which would affect their verdict, and who read newspaper accounts of the trial contrary to the court’s instructions. Appellant also alleges error in the court failing to charge on waiver of counsel before the jury could consider the oral statements and the written confession. We affirm.
On August 8,1973, about 8:15 a.m., appellant called the Pasadana Police Department and reported that he had shot a man. Shortly thereafter, the police arrived and found appellant and two companions sitting down on the sidewalk. Appellant told the officer that the man he had killed was inside the house. There was a pistol lying on the sidewalk near where appellant was seated. The officer placed appellant and his companions in the patrol car and placed the pistol in the truck. The officer went inside the house and found the body of Dean Corll. The officer went back to the patrol car and read the “Miranda” warnings to appellant. Appellant blurted out that he didn’t care who knew it but he had to get it off his chest and that he knew where there might be some more bodies. Appellant was taken to the police station where he was again warned of his rights by a magistrate. Thereafter, appellant told a detective that he knew the location of some bodies near a warehouse or boat stall. Appellant mentioned the names of Cobble and Jones. The Houston Police Department was called about whether they had a missing persons record on these persons. They did. Appellant was then taken to the Houston Police Station where he was shown the pictures of Marty Jones and Charles Cobble and appellant verified that these were two people he was talking about. Appellant then led the detectives to the boat stall that had been leased by Dean Corll. From about 6:30 p.m. to 11:30 p.m., the officers dug up a total of eight bodies and discontinued their digging operations. During most of this time, appellant was with the officers.
At approximately 10:00 a.m., the next morning, (August 9th), a detective again warned appellant of his rights. This interrogation resulted in appellant giving a written confession, part of which reads as follows:
“About 3 years ago, I met a guy by the name of Dean Corll. Dean was a lot older than me and a school friend by the name of David Brooks introduced me to him. David was always riding around in Dean’s car and everything. I was only about 14 at the time and I thought this was great. David Brooks told me that he could get me in on a xxx deal where I could make some money, and he took me to Dean Corll. Dean told me that he belonged to an organization out of Dallas that bought and sold boys, ran whores and dope and stuff like that. Dean told me that he would pay me $200.00 at least for every boy that I could bring him and maybe more if they were real good looking boys. I didn’t try to find any for him until about a year later, and I decided that I could use the money to get better things for my people so one day I went over to Dean’s Apt on Schuler street and told him that I would find a boy for him. Dean had a GTX at the time, and we got in it, Dean and me and started driving around. We picked up a boy at 11th and Studewood, and I talked to him since I had long hair and all and it was easier for me to talk to him. I talked him into going to Dean’s Apt to smoke some marijuana, so we went over to Dean’s Apt. Dean left some handcuffs laying out where they could be seen, and we had this little deal set up where I would put the handcuffs on and then could get out of them. Then we talked this boy (I don’t remember his name) into trying to get out of them. The only thing was we put them on where the locks were turned in where he couldn;t (sic) get the key into them. Then Dean took the boy down and tied his feet and put tape over his mouth. I thought Dean was going to sell him to this organization that he belonged to, so I left. Then the next day, Dean paid me $200.00. Then a day or so later I found out ahat (sic) dean (sic) had killed the boy. Then I found out that Dean screwed him in the ass before killing him. This was the start of the whole thing, and since then, I have helped Dean get 8 or 10 other boys, I don’t remember exactly how many. Dean would screw all of them and sometimes suck them and make them suck him. Then he would kill them. I killed several of them myself with Dean’s gun and helped him choke some others. Then we would take them and bury them in different places, David Brooks was with us on most of them.
I think the only three that David Brooks wasn’t with us on was the last ones at the house on Lamar Street in Pasadena. The ones that I can remember by name are: David Hildegeist who Dean told me that he had killed and buried in his boat stall a boy by the name of Malley Winkle, who David and Dean told they had killed and put in the boat stall Charles Cobble who I killed and we buried in the boat Stall. I shot Charles in the head with Dean’s pistol, over on Lamar Street in Pasadena, then we buried him in the boat stall. Then Marty Jones, me and Dean choked him and buried him in the boat stall. We killed a boy by the name of Billy Lawrence, I dont (sic) remember how we killed him, but we buried him up at Dean’s place on Sam Rayburn Lake. We killed him at the house on Lamar Street too.Dean told me about one named Rue-ben Haney that he killed and buried on the beach at High Island. I shot and killed Johnny Delone, and we buried him at High Island. Then me and Dean and David Brooks killed two brothers, I think we choked them,anyway, we buried Billy Balch at High Island, and Mike Balch at Rayburn. We choked Mark Scott and Frank Aguirre and buried them at High Island. The last one that I cna (sic) remember their name is Homer Garcia, and I shot him in the head and we buried him at Rayburn. I don’t remember the dates on all these, because there has been too many of them. Some of them were hitch-hikers and I can’t remember their' names. Dean told me that there was 24 in all, but I wasn’t with him on all of them. I tried to tell me (sic) mother two or three times about this stuff and she just wouldn’t believe me. I even wrote a confession one time and hid it, hoping that Dean would kill me because the thing was bothering me so bad. I gave the confession to my Mother and told her if I was gone for a certain length of time to turn it in. Me and David talked about killing Dean so that we could get away from this whole thing and several times, I have come within an inch of killing him but I just never got up enough nerve to do it until yesterday, because Dean had told me that his organization would get me if I ever did anything to him. This statement covers all that I can remember about all this killings and all that I know about where they are buried.” (emphasis added).
Then appellant led the officers to Lake Sam Rayburn. Enroute, appellant told the officers how they hauled the bodies in a large wooden box in Dean Corll’s van. This wooden box was found by the officers in a tool shed in the back of the house where Corll’s body was found.
Appellant also told the officers that he shot Cobble in the head and choked Marty Jones but that he couldn’t do it all by himself because it was not easy to choke anybody to death like they show on television because he said they just wouldn’t die so that he had to call Dean Corll to help him. In route to Lake Sam Rayburn, the officers stopped in Lufkin and met some other law enforcement officers. Appellant led the officers to a spot in a heavily wooded area on a dirt road. After they had traveled some distance, appellant said “stop I think this is where Billy Lawrence is buried. I think I remember this. This is the big log to the side of the road.” The officers got out and marked the spot. Appellant directed the officers to travel about half a mile down the road and he pointed out another gravesite. Appellant did not remember who was buried there.
Appellant related that Dean Corll had bought many sets of handcuffs at several pawn shops in Houston so that nobody would notice him buying an exceptionally large number of handcuffs in one place. He related also an incident with one of the victims, Frank Aguirre. Appellant said that he put the handcuffs on himself but had a key in his back pocket which he used to take the handcuffs off. Then appellant got Frank Aguirre to put them on to see if Aguirre could get them off. After Aguirre had the handcuffs on, appellant and Corll tied him to a board and had oral and anal sex with him before they killed him.
At approximately 10:30 that night, appellant was taken to the San Augustine jail. The next morning, appellant led the officers back to the same wooded area they had been the night before and led the officers to another gravesite. There were two bodies in this gravesite and appellant told the officers that he believed one of the bodies was that of Homer Garcia and he wasn’t sure of the other victim’s name. They left the area and appellant led the officers to an area on High Island near Winnie, Texas. Appellant told the officers that the bodies were scattered up and down the beach. A total of five bodies were found in this area. In High Island, appellant related to the officers several bizarre acts of torture that the victims were put through before they were killed.
Jury Selection
Appellant’s first eight grounds of error relate to alleged harmful errors committed during selection of the jury. The record reflects that appellant used ten of his peremptory challenges on veniremen J., L.F., M., S., V., M., H., A., U., and R., after his challenge for cause to each of these persons was overruled. The record shows that appellant requested a sufficient number of additional peremptory challenges to cover the ten jurors but was given only two. Therefore, if the trial court ruled incorrectly on more than two of these challenges, reversal will be required. The record also shows that appellant informed the trial court that because it granted an insufficient number of additional peremptory challenges, eight jurors were seated on the jury that were objectionable to him and that he would have excused by peremptory challenge. The adverse rulings of the trial court to appellant’s challenges for cause have been correctly brought forward for review. See, Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App.1980).
In deciding the propriety of the court’s ruling on challenges for cause during voir dire, we must take into consideration the totality of the juror’s responses concerning the qualification in question. This includes taking into consideration such factors as the nature of the question put to the juror, the juror’s ability to comprehend the question and the juror’s ability to express himself. We must also weigh vague or contradictory responses against those that are not, keeping in mind, in close cases, that the trial judge has had the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended, while we only have the “cold record”.
In his first ground of error, appellant argues that veniremen J., L.F., M., and S. should have been excluded on the grounds that none of them could consider the “minimum punishment of five years probation in a murder with malice case.” Art. 35.16(c)(2), V.A.C.C.P., provides in pertinent part:
“(c) A challenge for cause may be made by the defense for any of the following reasons:
(!)•••
(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense of which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor” (emphasis supplied).
In overruling the challenge for cause to each of these jurors, the trial court impliedly found that each of these jurors would follow the probation law and that each was willing to leave open the possibility of applying that law until all of the evidence had been presented. See, Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976).
From the totality of the juror’s responses, we hold that the trial court’s finding that each of these jurors was willing to leave open the full range of punishment until all the evidence had been presented is supported by the record. 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 jurors V. and M. on the ground that they had established in their mind a conclusion that appellant was guilty and that such conclusion would affect their verdict.
Appellant also contends that the trial court committed error during the voir dire examination of V. and M. when the trial court refused under Article 35.16(a)(9), Texas Code of Criminal Procedure, to terminate the questioning. The pertinent part of that Article provides:
“A jury challenge for cause may be made by either the state or the defense for any one of the following reasons:
(9) That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; ...”
If the statute were followed precisely, the trial court and the parties would first determine whether the juror had a conclusion concerning the guilt of the defendant. If it were determined that such conclusion existed, the trial court would then ask the juror specifically whether in the juror’s opinion the conclusion would influence his verdict. An affirmative answer would terminate the inquiry and a negative answer would permit the examination to continue.
In this case the examination was not regimented in this fashion, making it difficult if not impossible to correctly employ the termination provision. Questions concerning the existence of conclusions of guilt and questions concerning what influences those conclusions might have on reaching a verdict were intermixed. We hold that the appellant by the general and vague manner in which he conducted this voir dire, i.e.: mixing questions of conclusions of guilt with questions of how the conclusions would affect the verdict waived the right to invoke the termination provisions of Article 35.16(a)(9), supra. Furthermore, the question is not whether a juror “had a thought or suspicion,” that he (appellant) was somewhat involved and whether this “thought or suspicion” would affect his verdict. The question is conclusion of guilt or innocence. When asked this question, the juror said he did not. At best, jurors M. and V. were equivocating jurors. This is one of the reasons appellant was given the right to strike twelve jurors without assigning any cause.
Even if appellant did not waive the termination provision of 35.16(a)(9), supra, under the totality of the circumstances, it was not established that V. and M. had a conclusion as to the guilt or innocence of appellant. Furthermore, if it was error for the court to deny the challenge, it was rendered harmless by the court giving appellant two more peremptory challenges than he was legally entitled.
Appellant also contends that the trial court erred in denying his challenge for cause to jurors H., V., and S. on the ground that they could not “consider evidence that defendant had acted under duress or the domination of an older person in mitigation of punishment contrary to ... Article 35.16(c)(2) Tex.Code Crim.Pro. (Supp.1981).” Article 35.16(c)(2) of the Texas Code of Criminal Procedure in pertinent part provides:
“(c) A challenge for cause may be made by the defense for any of the following reasons: ...
(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore.”
Specifically, appellant argues that these jurors would not consider evidence of duress in mitigation of punishment. Appellant does not cite and we cannot find any law which authorizes a lesser punishment upon a finding of duress or domination by an older person. Duress is an absolute defense, not a matter of mitigation of punishment. Tex.Penal Code § 8.05 (Supp.1981).
S. was also challenged on the ground that he could not consider “rehabilitation” in deciding punishment. Rehabilitation is only one purpose of punishment. Other purposes are restitution, retribution and separation of a bad actor from society. A juror who is unwilling to consider the rehabilitative purposes of punishment is not subject to challenge for cause. Appellant’s second, third and fourth grounds of error are overruled.
In the fifth ground of error, appellant contends that the trial court erred in denying his challenge for cause against Jur- or A. on the ground that A. would consider the indictment as evidence of guilt in violation of Article 38.03, Texas Code of Criminal Procedure which provides that the fact that a person has been indicted for an offense gives rise to no inference of guilt at the trial. We hold that from the totality of the juror’s responses, the trial court’s implied finding that A. would not act in violation of this statute is supported by the record. Appellant’s fifth ground of error is overruled. Camacho v. State, 156 Tex.Cr.R. 1551, 244 S.W.2d 823 (1952).
In his sixth ground of error, appellant contends that the trial court erred in denying his challenge for cause to Juror U. on the ground that he could not be impartial because he was worried that his jury service would cause him to lose his job. Appellant did not cite any authority.
Jury service is a privilege and a civic duty. However, the trial court has discretion to excuse veniremen for cause on grounds that are not enumerated in the Texas Code of Criminal Procedure Article 35.16. Moore v. State, 542 S.W.2d 664, 669 (Tex.Cr.App.1976). In Moore it was held that it was not error for the court to excuse a venireman who was going to be so preoccupied by personal problems that he could not be fair. However, U. stated that “even though he wouldn’t like it” he could give both sides a “fair trial” and that his worries “wouldn’t detract from the case.” He did say that his concerns were speculative, would “affect his deliberations” but it was never developed by the question exactly how his deliberations would be affected. We hold that the trial court did not abuse its discretion in refusing to excuse Juror U. for cause. Appellant’s sixth ground of error is overruled.
In ground of error seven, appellant contends that the trial court erred in denying his challenge for cause to Juror R. on the ground that she read a newspaper article about the case after she was selected as one of the veniremen and after being instructed by the court not to read about the case. While R.’ conduct may have been contempt of court, it was not grounds for excusing her for cause without a showing that from reading the article she had formed an opinion or conclusion about the guilt or innocence of the appellant that would affect her verdict. No showing of this kind was made. We, therefore, hold that the trial court did not abuse its discretion in refusing to excuse Juror R. for cause.
In ground of error eight, appellant contends that the trial court erred in refusing to grant a mistrial when Juror B. revealed that after his voir dire examination and before being seated on the jury he had read two newspaper articles about the case. B. voluntarily brought the matter to the court’s attention explaining that when he read the articles he thought he had not been selected to serve on the jury. B. told the court that the articles would not have any influence on him as a juror and would not help him in arriving at a decision as to the guilt of appellant.
The reading of media accounts of the trial by a seated juror after being instructed not to do so is not grounds for a mistrial unless it be shown that the accused was injured or prejudiced by such conduct. Broussard v. State, 505 S.W.2d 282, 284 (Tex.Cr.App.1974). No prejudice or injury is shown by this record. We, therefore, hold that the trial court acted correctly in refusing to grant appellant’s motion for mistrial. Appellant’s eighth ground of error is overruled.
Oral & Written Confessions
In grounds of error nine, ten and eleven, appellant contends that the issue of knowing waiver of counsel was raised by the evidence after the confession had been admitted into evidence and, therefore, it was error for the court to fail to charge the jury that they first had to find that appellant had knowingly, voluntarily, and intelligently waived his right to counsel before his oral and written confessions could be considered by them against him.
It is necessary to review the chronology of the events of this case to properly analyze appellant’s contention.
On August 8, 1973, after killing his partner in crime, Dean Corll, appellant called the police and advised them of this fact. The first officer to arrive at the scene was Officer Jamison. Officer Jamison read appellant his rights and appellant appeared to understand them. Shortly thereafter, appellant blurted out that “he didn’t care of who knew it, he just had to get it off his chest. He knew where there might be some more bodies.” Appellant was then taken to the police station where he was again given his rights by Judge Drake in compliance with Art. 15.17 of the Texas Code of Criminal Procedure. Appellant indicated to Judge Drake that he understood what his rights were.
The next morning on August 9, Officer Mullican again warned appellant of his rights and appellant acknowledged that he understood what his rights were. Appellant did not ask to have a lawyer appointed nor to have the interview terminated but proceeded to give a written confession. The warning and waiver at the top of the confession was read to appellant while appellant read it from another form. This confession, in pertinent part reads as follows:
“On the 8th day of August, 1973, at 10:55 o’clock A.M., I Elmer Wayne Henley, was taken before Judge Russell Drake, a Magistrate at his office Pasadena, Harris County, Harris County, Texas, who informed me:
Of the accusations made against me; That I had a right to retain counsel; That I had a right to remain silent; That I had a right to have an attorney present during my interview with peace officer or attorneys representing the state;
That I have a right to terminate an interview at any time;
That I have a right to request appointment of counsel if I cannot afford counsel;
That I have a right to an examining trial; That I am not required to make any statement, and any statement I make may be used against me.
I have now been warned by Detective D.M.Mullican. the person to whom I am making this statement, and was so warned by Detective D.M.Mullican prior to any questioning of me by police while I was under arrest:
(1) that I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning; (2) that if I am unable to employ a lawyer I have the right to have a lawyer appointed to counsel with me prior to or during any questioning; and (3) I have the right to remain silent and not make any statement at all and that any statement I make may and probably will be used in evidence against me at my trial, and (4) I have the right to terminate the interview at any time.
I do not want to consult with a lawyer before I make this statement, and I do not want to remain silent, and I now freely and voluntarily waive my right to a lawyer and to remain silent and make the following voluntary statement.
XXX My name is Elmer Wayne Henley, I am a white male 17 years old and was born on 5-9-56 in Houston, Texas. I have completed the 8th grade in school and can read and write the English Language. I presently live with my Mother at
Officer Mullican asked appellant if he understood his rights and appellant acknowledged that he did.
After the confession was completed, appellant was taken to the Houston Police Station. He visited with his mother and then directed the officers to San Augustine and the Lake Sam Rayburn area where other victims had been buried. During this trip, appellant made numerous incriminating oral statements, many of them relating to the methods of torture used on the victims.
At the hearing on the motion to suppress the confession and oral statements, nothing was said about anything that remotely indicated that appellant wanted a lawyer. The court found the statement admissible. At the trial, after the court had admitted these oral statements and the confession, in front of the jury, on cross-examination of Officer Mullican, about the trip to San Augustine on August 9, Officer Mullican testified that appellant “had already told [him] on the way up there that he was familiar with [attorney] Plotkin. He had done some work for his mother. He did not want Plotkin because he didn’t want his mother to have to pay.” Appellant did not testify at his trial nor present any evidence that he did not understand his rights. However, appellant argues that the statement regarding Plotkin raised an issue of appellant’s understanding of his rights and, therefore, it was error for the court not to charge the jury that they first had to find that appellant waived his right to counsel before they could consider them against him. We do not agree that the issue of knowing waiver of counsel was raised by the evidence.
Before making this statement concerning Plotkin, appellant had been advised of his Miranda rights on four separate occasions. On each occasion, appellant acknowledged that he understood them. Appellant never indicated that he desired to consult an attorney. To the contrary, he wanted to get matters “off his chest” and willingly cooperated with the officers from the very beginning after he had been warned of his rights. Appellant does not challenge the adequacy of the warnings.
From the totality of the circumstances, we hold that appellant’s statement concerning Mr. Plotkin did not raise an issue that he did not understand his rights to counsel. The trial court therefore did not err in refusing to instruct the jury on the issue of knowing waiver. Appellant’s ground of error nine, ten and eleven are overruled.
The judgments in cause numbers 79-CR-256-E, 79-CR-257-E, 79-CR-258-E, 79-CR-259-E, 79-CR-260-E and 79-CR-261-E in the 148th District Court of Nueces County, Texas are affirmed.
Pierce v. State, supra at 187; Vigneault v. State, 600 S.W.2d 318, 326 (Tex.Cr.App.1980).
Porter v. State, 623 S.W.2d 374, 377 (Tex.Cr.App.1981); Vigneault v. State, supra, at 326.
Porter v. State, supra; Williams v. State, 622 S.W.2d 116, 119 (Tex.Cr.App.1981); Pierce v. State, supra; Vigneault v. State, supra; Simmons v. State, 594 S.W.2d 760, 764 (Tex.Cr.App.1980); O'Bryan v. State, 591 S.W.2d 464, 471 (Tex.Cr.App.1979).
Tezeno v. State, 484 S.W.2d 374, 383 (Tex.Cr.App.1972).
25 pages of pertinent voir dire for all of grounds of error regarding jury selection was attached to the opinion in an unpublished appendix.