DEALING WITH THE ETHICAL AND LEGAL ISSUES
ASSOCIATED WITH PRETRIAL PUBLICITY
IN CAPITAL CASES
Presenter
WILLIAM J. HAWKINS, JR.
Harris County District Attorney‘s Office
1201 Franklin, 6th Floor
Houston, Texas 77002
Co-Author
AARON E. ECKMAN
Harris County District Attorney‘s Office
1201 Franklin, 6th Floor
Houston, Texas 77002
State Bar of Texas
37th
ANNUAL
ADVANCED CRIMINAL LAW COURSE
July 18-21, 2011
Houston
CHAPTER 15.6
WILLIAM J. HAWKINS, JR.
1201 Franklin, Ste 600
Houston, TX 77002
(713) 755-4123
Degrees:
University of Houston, J.D., 1983
Tarleton State University, Stephenville, TX, B.A., 1975
Membership:
State Bar of Texas, 1983 – Present; TDCAA; HBA
Professional Experience:
Harris County District Attorney‘s Office, Nov. 1983 – Present
Division Chief
Capital Trial Division, 2010 – 2011
Felony Division, 2009 – 2010
Juvenile Division, 2001 – 2008
District Court Chief Prosecutor, Feb. 1990 – 20000
Child Abuse Section 1988
Trial Bureau, Nov. 1983 – 2000
Trial Experience:
100 Plus Felony Trials; 14 Death Penalty Trials
Publications:
―Capital Punishment and the Administration of Justice: A Trial Prosecutor‘s Perspective,‖
Judicature, March–April 2006, Vol. 89 No. 5
―Crimes Involving The Elderly,‖ Elder Law: The Essentials For Representing Senior Citizens,
Houston Bar Assoc., 1993
Harris County Child Abuse Handbook, Contrib. Editor, 1990 ―Identification Hearings,‖ HCDA,
1997
Teaching Experience:
Videotaping In Child Abuse Cases, HCDA, 1989
Penal Code Update, Pasadena Police Department, 1995, 1996
Capital Voir Dire, Assoc. Gov't Attys In Cap. Lit., 1997
Punishment Argument, HCDA, 1998
Demonstrative Evidence, HCDA, 2000
Witness Preparation, HCDA, 2001
Capital Murder Voir Dire Seminar, HCDA, 2001
Homicide Seminar, HCDA, 2002
Juvenile Arrest & Statement Procedure, TDCAA 2003; HPD 01-08
Capital Murder Training, HCDA Fall 2010
AARON E. ECKMAN
3227 John Glenn Drive ▪ San Antonio, Texas 78217 Phone 210-259-3411 ▪ E-mail [email protected]
EDUCATION
St. Mary’s University School of Law San Antonio, Texas Candidate for Juris Doctor, 2012
Advocacy: o 1L Linda and Dave Schlueter Moot Court Competition Team Champion o Award: Best 1L Oral Advocate
Law Review: o 2011-2012 Solicitations & Symposium Editor for Scholar: St. Mary’s Law Review on Minority Issues o 2010-2011 Staff Writer for Scholar: St. Mary’s Law Review on Minority Issues
Academics: o Grades: B- (2.86 GPA). Rank: 100/250.
Texas State University San Marcos, Texas Bachelors of Fine Arts, Theater Arts Performance (1998 to 2001)
Graduated Magna cum Laude (3.65 GPA). Dean’s List all semesters.
EXPERIENCE
Harris County District Attorney’s Office Houston, Texas Trial Intern Summer 2011 (Ten weeks)
Assigned to Capital Trial Division Provided detailed legal research and writing. Co-authored CLE article, “Dealing with the Ethical and Legal
Issues Associated with Pretrial Publicity in Capital Cases.”
13th Court of Appeals Corpus Christi, Texas Judicial Intern Summer 2010 (Six weeks)
Assigned to research and write for Justice Nelda Rodriguez at the 13th Court of Appeals. Researched and composed two memorandum opinions (one civil and one criminal) under the supervision of
senior staff attorneys for Justice Nelda Rodriguez. Observed trials in criminal and civil cases at Texas’ District Courts and at the Southern District Federal Court. Other duties include: cite-checking and proofreading, researching complex legal issues, reviewing and
summarizing trial records, and drafting legal analyses.
The Edwards Firm Corpus Christi, Texas Legal Intern Summer 2010 (Six weeks)
Worked for Plaintiff’s side civil litigation firm on a variety of cases—from products liability to personal injury.
Researched portions of Respondent’s Brief for a case pending at the Texas Supreme Court.
Drafted the following legal documents: motion to compel discovery, order granting discovery, and objections.
Participated in the discovery process by composing and researching appropriate requests for admissions, request for production, and interrogatories.
Drafted portions of original petitions. Summarized trial testimony and depositions.
Participated in client intake at the law firm. Witnessed a deposition and a personal injury trial.
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
i
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................................................. 1
II. ETHICS & LAW ............................................................................................................................................... 1 A. Trial Publicity & Texas Disciplinary Rules of Professional Conduct .................................................. 1 B. Change of Venue & Chapter 31 of the Texas Code of Criminal Procedure ......................................... 3
1. Art. 31.01 & Art. 31.02—Sua Sponte & the State ................................................................... 3 2. Art. 31.03(a)—Granted on Motion of Defendant .................................................................... 3 3. Art. 31.04—Motion May Be Controverted .............................................................................. 3
C. Change of Venue based on Media Attention ........................................................................................ 3
III. CASES ............................................................................................................................................................... 4 A. The Most Recent Case Addressing Change of Venue based on Media Attention ................................ 4
1. Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007) ................................................... 4 B. Only Two Cases in the Last Forty Years Were Outside the Zone of Reasonable Disagreement ......... 4
1. Henley v. State, 576 S.W.2d 66 (Tex. Crim. App. 1978) ......................................................... 5 2. Rubenstein v. State, 407 S.W.2d 793 (Tex. Crim. App. 1966) ................................................ 6
C. In the Overwhelmingly Majority of Cases—A Trial Court‘s Refusal to Grant a Change of
Venue will Not be Considered an Abuse of Discretion ........................................................................ 6 1. Taylor v. State, 420 S.W.2d 601 (Tex. Crim. App. 1967) ....................................................... 6
D. Voir Dire—A trial judge need not grant a motion for a change of venue, even where a substantial
number of prospective jurors have seen publicity on the accused‘s case. ............................................ 7 1. Gardner v. State, 733 S.W.2d 195, 204 (Tex. Crim. App. 1987) (―To ask that a criminal
defendant be tried in a community untouched by the news media is to be unrealistic in this
day and time.‖) ......................................................................................................................... 7 2. Von Byrd v. State, 569 S.W.2d 883, 890-891 (Tex. Crim. App. 1978).................................... 8
E. Hearing on Motion for Change of Venue—Defendant faces a heavy burden to prove ―the existence
of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is
doubtful.‖ .............................................................................................................................................. 8 1. Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006). ................................................... 8 2. Dewberry v. State, 4 S.W.3d 735, 745 n.5 (Tex. Crim. App. 1999). ....................................... 9 3. Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996). ....................................................... 9
IV. GAG ORDERS .................................................................................................................................................. 9 1. In re Houston Chronicle Publ’g Co., 64 S.W.3d 103, 108 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) ....................................................................................................... 10 2. In re Ashley Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 2007, no pet.). ...... 10
IV. CONCLUSION ................................................................................................................................................ 11
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
ii
TABLE OF AUTHORITIES
CASES
Freeman v. State, No. 76052, 2011 WL 321579 (Tex. Crim. App. March 16, 2011). .................................... 4
Sheppard v. Maxwell, 384 U.S. 333 (1966). ......................................................................................................... 1, 3
Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007). ................................................................ 4, 5, 6,
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006). ...................................................................... 3, 8
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999). ........................................................................ 3, 9
Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996)). .............................................................................. 3, 9
Teague v. State, 864 S.W.2d 505 (Tex. Crim. App. 1993). ............................................................................ 4
DeBlanc v. State, 799 S.W.2d 701 (Tex. Crim. App. 1990). ...................................................................... 4, 8
Gardner v. State, 733 S.W.2d 195 (Tex. Crim. App. 1987). ...................................................................... 4, 7
Beets v. State, 767 S.W.2d 711 (Tex. Crim. App. 1987). ..................................................................... 3, 6, 11
Henley v. State, 576 S.W.2d 66 (Tex. Crim. App. 1978). ............................................................................ 4, 5
Von Byrd v. State, 569 S.W.2d 883 (Tex. Crim. App. 1978). ...................................................................... 4, 8
Adami v. State, 524 S.W.2d 693 (Tex. Crim. App. 1975). .......................................................................... 3, 7
Morris v. State, 488 S.W.2d 768 (Tex. Crim. App. 1973). ............................................................................. 1
Taylor v. State, 420 S.W.2d 601 (Tex. Crim. App. 1967). ...................................................................... 4, 6, 7
Rubenstein v. State, 407 S.W.2d 793 (Tex. Crim. App. 1966). ................................................................... 4, 6
In re Ashley Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). .............................. 10
Russell v. State, 146 S.W.3d 705 (Tex. App.—Texarkana 2004, pet. ref‘d). .................................................. 4
In re Houston Chronicle Publ’g Co., 64 S.W.3d 103 (Tex. App.—Houston [14th
Dist.] 2001, no pet.) .. 9, 10
Crawford v. State, 685 S.W.2d 343 (Tex. App.—Amarillo 1984), rev’d on other grounds, 696 S.W.2d 903
(Tex. Crim. App. 1985)). .................................................................................................................................. 4
STATUTES
Tex. Crim. Proc. Code Ann. Art. § 31.01 (West Supp. 2010). ........................................................................ 3
Tex. Crim. Proc. Code Ann. Art. § 31.02 (West Supp. 2010). ........................................................................ 3
Tex. Crim. Proc. Code Ann. Art. § 31.03 (West Supp. 2010). ................................................................... 3, 5
Tex. Crim. Proc. Code Ann. Art. § 31.04 (West Supp. 2010). ........................................................................ 3
RULES
Tex. Disciplinary R. Prof'l Conduct 3.07 ......................................................................................... 1, 2, 10, 11
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
1
DEALING WITH THE ETHICAL AND
LEGAL ISSUES ASSOCIATED WITH
PRETRIAL PUBLICITY IN CAPITAL
CASES
I. INTRODUCTION
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.
Sheppard v. Maxwell, 384 U.S. 333, 363-364
(1966).
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.
Morris v. State, 488 S.W.2d 768, 772 (Tex. Crim. App.
1973).
Publicity surrounding the events that lead to the
prosecution of an accused and the subsequent trial are
an unavoidable condition in a society which treasures
the fundamental rights of freedom of speech and
freedom of the press. However, when the media
coverage becomes pervasive, there is the potential to
create an environment in which the impaneling of an
impartial jury from that county becomes impossible,
thus preventing a fair trial in compliance with due
process of law. The stakes become intensely raised
when the alleged crime involves a capital offense
punishable in Texas by death.
In recent years, with the advancement of our
communication technology, pretrial and trial publicity
has become easily accessible for any curious mind. A
quick Google search with the key words ―capital
murder Houston,‖ reveals a shocking 607,000 results
that contain recent news accounts of indictments, arrest
information, and pretrial commentary.1 It is clear that
news coverage is trending towards an increase in
reporting to satisfy the demands of a twenty-four hour
news cycle.
1 A number of the links retrieved from Google were
attorneys advertising their services.
The role of the courts is to determine when the
coverage becomes so pervasive, inflammatory, and
prejudicial that an impartial trial is impossible and a
change of venue is required. In addition to the role of
the courts determining the appropriate balance between
freedom of the press and the Sixth amendment;
Attorney‘s in Texas have an ethical obligation not to
contribute to the pervasiveness of pretrial publicity.
The ethical obligation is mandated by the Texas
Disciplinary Rules of Professional Conduct and
provides penalties for noncompliance.
This article explores the ethical and legal issues
associated with pretrial publicity in capital cases. Part
I provides an overview of Texas law and ethics
regarding pretrial publicity. The section focuses on:
(1) the Texas Disciplinary Rules of Professional
Conduct; (2) the procedural elements required for a
change of venue found in the Texas Code of Criminal
Procedure; and (3) the defendant‘s burden and the
appellate standard of review for a motion to change
venue. Part II is a detailed examination of cases
decided by the Texas Court of Criminal Appeals
regarding motions to change venue. Part III looks at
the use of gag orders. This article concludes with a
discussion regarding the ethical obligations of the
Texas lawyer in light of the difficulty to acquire a
change of venue and the high standards necessary for
the issuance of a gag order.
II. ETHICS & LAW
A. Trial Publicity & Texas Disciplinary Rules of
Professional Conduct
Rule 3.07 of the Texas Disciplinary Rules of
Professional Conduct sets the standards and boundaries
regarding extrajudicial statements made by a lawyer
that lead to public dissemination about the case. The
rule provides the basic standard that:
In the course of representing a client, a
lawyer shall not make an extrajudicial
statement that a reasonable person would
expect to be disseminated by means of public
communication if the lawyer knows or
reasonably should know that it will have a
substantial likelihood of materially
prejudicing an adjudicatory proceeding. A
lawyer shall not counsel or assist another
person to make such a statement.
Tex. Disciplinary R. Prof'l Conduct 3.07(a) (emphasis
added).
The rule also describes, with specificity, factors
and circumstances in which a lawyer will most likely
be in violation of Rule 3.07 when making an
extrajudicial statement:
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
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A lawyer ordinarily will violate paragraph
(a), and the likelihood of a violation increases
if the adjudication is ongoing or imminent,
by making an extrajudicial statement of the
type referred to in that paragraph when the
statement refers to:
(1) the character, credibility, reputation or
criminal record of a party, suspect in a
criminal investigation or witness; or the
expected testimony of a party or
witness;
(2) in a criminal case or proceeding that
could result in incarceration, the
possibility of a plea of guilty to the
offense; the existence or contents of any
confession, admission, or statement
given by a defendant or suspect; or that
person‘s refusal or failure to make a
statement;
(3) the performance, refusal to perform, or
results of any examination or test; the
refusal or failure of a person to allow or
submit to an examination or test; or the
identity or nature of physical evidence
expected to be presented;
(4) any opinion as to the guilt or innocence
of a defendant or suspect in a criminal
case or proceeding that could result in
incarceration; or
(5) information the lawyer knows or
reasonably should know is likely to be
inadmissible as evidence in a trial and
would if disclosed create a substantial
risk of prejudicing an impartial trial.
Tex. Disciplinary R. Prof'l Conduct 3.07(b)(1)-(4).
Additionally, the rule provides examples of when
an extrajudicial statement made by a lawyer would
most likely not be in violation of 3.07.
A lawyer ordinarily will not violate
paragraph (a) by making an extrajudicial
statement of the type referred to in that
paragraph when the lawyer merely states:
(1) the general nature of the claim or
defense;
(2) the information contained in a public
record;
(3) that an investigation of the matter is in
progress, including the general scope of
the investigation, the offense, claim or
defense involved;
(4) except when prohibited by law, the
identity of the persons involved in the
matter;
(5) the scheduling or result of any step in
litigation;
(6) a request for assistance in obtaining
evidence, and information necessary
thereto;
(7) a warning of danger concerning the
behavior of a person involved, when
there is a reason to believe that there
exists the likelihood of substantial harm
to an individual or to the public interest;
and
(8) if a criminal case:
(i) the identity, residence, occupation
and family status of the accused;
(ii) if the accused has not been
apprehended, information
necessary to aid in apprehension of
that person;
(iii) the fact, time and place of arrest;
and
(iv) the identity of investigating and
arresting officers or agencies and
the length of the investigation.
Tex. Disciplinary R. Prof'l Conduct 3.07(c)(1)-(8).
Rule 3.07 is grounded on an attempt to find the
appropriate balance between a defendant‘s right to a
fair trial and the public‘s interest in acquiring
information concerning their safety and their interests
regarding the judicial process. See id. at 3.07(a) cmt.
1. It is clear that considerations of free speech are
involved. See id. It is also clear that when the Texas
Supreme Court promulgated rule 3.07 addressing trial
publicity, ―a lawyer‘s right to free speech [was
determined to be] subordinate to the constitutional
requirements of a fair trial.‖ Id.
Rule 3.07 also provides for some leniency when
determining whether a lawyer‘s extrajudicial
statements created material prejudice. See id. at
3.07(a) cmt. 3. Normally, the existence of material
prejudice is dependent upon the circumstances in
which the statement was made. Id. Comment three of
rule 3.07 explains that the constitutional principles
guaranteed in the First amendment require these
disciplinary rules to retain flexibility in order to allow
for unique situations. Id. ―For example, an otherwise
objectionable statement may be excusable if
reasonably calculated to counter the unfair prejudicial
effect of another public statement.‖ Id.
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
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B. Change of Venue & Chapter 31 of the Texas
Code of Criminal Procedure
1. Art. 31.01 & Art. 31.02—Sua Sponte & the State
Article 31.01 of the Texas Code of Criminal
Procedure provides that a change of venue may be
brought sua sponte in any felony case, if the presiding
judge is satisfied that a fair and impartial trial for the
accused or the State cannot be attained in the current
county. The judge may change venue only upon an
evidentiary hearing. Tex. Crim. Proc. Code Ann. Art.
§ 31.01 (West Supp. 2010). Once the evidentiary
hearing is conducted and the judge is satisfied that
evidence is present to change venue, the judge shall
state in his order the grounds for his decision. Id.
The State has the ability to move for a change of
venue by representing in writing that a fair and
impartial trial as between the accused and the State
cannot be ―safely and speedily‖ conducted. Id. at §
31.02. The district attorney‘s written representation
must allege that a fair and impartial trial is unattainable
due to ―existing combinations or influences in favor of
the accused, or on account of the lawless condition of
affairs in the county. . . .‖ Id. Additionally, the district
attorney could allege that ―the life of the prisoner, or of
any witness, would be jeopardized by a trial in the
county in which the case is pending. . . .‖ Id. The
judge shall hear proof regarding the representations,
and if he determines that they are well-founded and
―justice will be subserved‖ in the current county, then
he shall order change of venue. Id.
2. Art. 31.03(a)—Granted on Motion of Defendant
Article 31.03(a) of the Texas Code of Criminal
Procedure provides that a change of venue may be
granted in any felony case on a written motion of the
defendant. The written motion must be supported by
an affidavit from the defendant and at least two
affidavits from credible individuals who reside in the
county of prosecution. Tex. Crim. Proc. Code Ann.
Art. § 31.03(a) (West Supp. 2010). The court shall
then determine the truth and sufficiency of the
defendant‘s motion. Id. The motion for change of
venue must show: ―(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.‖ Id. at §§ 31.03(a)(1), (a)(2).
3. Art. 31.04—Motion May2 Be Controverted
Article 31.04 of the Texas Code of Criminal
Procedure allows for the defendant‘s affidavits in
support of the motion to change venue to be attacked
by controverting affidavits. The controverting
affidavits may attack the ―credibility of the person
making‖ the supporting affidavit, ―or their means of
knowledge,‖ and must be made by a credible person.
Id. at § 31.04. The controverting affidavit places the
motion to change venue at issue and permits the judge
to make a ruling ―as the law and facts shall warrant.‖
Id.
C. Change of Venue based on Media Attention
The test to be applied in determining if a change
of venue motion should be granted is whether outside
influences affecting the community climate of opinion
as to a defendant are inherently suspect. Sheppard v.
Maxwell, 384 U.S. 333 (1966) (―trial judge did not
fulfill his duty to protect [appellant] from the
inherently prejudicial publicity which saturated the
community. . . .‖). The resulting probability of
unfairness due to a community saturated with publicity
requires suitable procedural safeguards, such as a
change of venue, to assure a fair and impartial trial.
Adami v. State, 524 S.W.2d 693 (Tex. Crim. App.
1975).
Specifically, the standard to be employed to
justify a change of venue based on media attention is
that the publicity about the case must be pervasive,
prejudicial, and inflammatory.3 However, widespread
publicity by itself is not considered inherently
prejudicial.4 In addition, extensive knowledge of the
case or defendant in the community as a result of
pretrial publicity is not sufficient to require a trial
judge to grant a motion for a change of venue.5 A trial
judge need not grant a motion for a change of venue,
even where a substantial number of prospective jurors
2 Clarke v. State, 928 S.W.2d 709, 718 (Tex. App.—Fort
Worth 1996, pet. ref‘d) (―Although [Art. 31.04] does not
specify that the State must file controverting
affidavits, . . . until this is done, there is no issue between the
parties to argue at a hearing. If the State files no
controverting affidavits, the defendant is entitled to a change
of venue as a matter of law.‖). 3 Beets v. State, 767 S.W.2d 711, 743 (Tex. Crim. App.
1987), cert. denied, 492 U.S. 912 (1989); Bell v State, 938
S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc) (emphasis
added). 4 Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim.
App. 2007) (citing Renteria v. State, 206 S.W.3d 689, 709
(Tex. Crim. App. 2006); Dewberry v. State, 4 S.W.3d 735,
745 n.5 (Tex. Crim. App. 1999); Bell v. State, 938 S.W.2d
35, 46 (Tex. Crim. App. 1996)). 5 Gonzalez, 222 S.W.3d at 449 (citing Faulder v. State,
745 S.W.2d 327, 338-339 (Tex. Crim. App. 1987)).
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
4
have seen publicity on the accused‘s case.6
Furthermore, the mere fact of media attention and
publicity do not automatically establish prejudice or
require a change of venue; jurors do not have to be
totally ignorant of the facts and issues of a particular
case.7 ―The defendant seeking a change of venue bears
a heavy burden to prove the existence of such prejudice
in the community, that the likelihood of obtaining a
fair trial and impartial jury is doubtful.‖8
On appeal, the standard of review for the Court of
Criminal Appeals is whether the trial court abused its
discretion in refusing to grant the change of venue.9
―If the trial court's decision concerning a motion for a
change of venue falls within the zone of reasonable
disagreement, it will be upheld.‖10
III. CASES
A. The Most Recent11
Case Addressing Change of
Venue based on Media Attention
1. Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim.
App. 2007)
In Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim.
App. 2007), the trial court did not abuse its discretion
by denying a motion for change of venue, even though
there was a widespread, pretrial, public dissemination
of surveillance video that recorded the offense.12 The
6 Gonzalez, 222 S.W.3d at 450 (citing Gardner v. State,
733 S.W.2d 195, 204-05 (Tex. Crim. App. 1987); Von Byrd
v. State, 569 S.W.2d 883, 890-891 (Tex. Crim. App. 1978);
Taylor v. State, 420 S.W.2d 601, 604 (Tex. Crim. App.
1967); Russell v. State, 146 S.W.3d 705, 714 (Tex. App.—
Texarkana 2004, pet. ref‘d); Crawford v. State, 685 S.W.2d
343, 349-350 (Tex. App.—Amarillo 1984), rev’d on other
grounds, 696 S.W.2d 903 (Tex. Crim. App. 1985)). 7 Teague v. State, 864 S.W.2d 505, 509 (Tex. Crim. App.
1993). 8 DeBlanc v. State, 799 S.W.2d 701, 704 (Tex. Crim.
App. 1990), cert. denied, 501 U.S. 1259 (1991). 9 DeBlanc v. State, 799 S.W.2d 701, 705 (Tex. Crim.
App. 1990), cert. denied, 501 U.S. 1259 (1991). 10 Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App.
2007) (citing Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.
Crim. App. 1992). 11 Actually, a more recent case does exist, Freeman v.
State, No. 76052, 2011 WL 321579 (Tex. Crim. App. March
16, 2011). However, there is only a brief discussion and
ruling regarding the motion for change of venue. See
Freeman, 2011 WL 321579, at *4. Additionally, the
decision cites Gonzalez extensively. See id. 12 The surveillance video documented the defendant and
his juvenile companion entering into a convenience store
with a .22 rifle. Gonzalez, 222 S.W.3d at 447. They
proceeded to threaten the victim with the rifle and demand
money. Id. Upon receiving money, the juvenile opened fire
and killed the cashier. Id. The surveillance video depicting
the murder of the cashier was broadcasted numerous times
on local newscasts in an attempt to locate and identify the
decision overturned the El Paso Court of Appeals‘
determination that the ―pretrial publicity resulted in
‗actual, identifiable prejudice‘ to appellant‖ and
therefore, the motion for change of venue was
erroneously denied by the trial court. Gonzalez, 222
S.W.3d at 448. The El Paso Court of Appeals had held
that the prejudice was so great that Gonzalez could not
obtain a fair trial in El Paso based on (1) the nature of
the pretrial publicity; (2) the connection of government
officials with the publicity; (3) the length of time
between the publicity and the trial; (4) the severity and
notoriety of the offense; (5) the impact of the publicity;
(6) and the candor and veracity of prospective jurors
during voir dire. Id. at 448; see Henley v. State, 576
S.W.2d 66, 70 (Tex. Crim. App. 1978) (en banc)
(rehearing denied 1979).
After reviewing the trial court‘s hearing on
Gonzalez‘s motion to change venue, the Court of
Criminal Appeals held that
[t]he fact that there were a number of
panelists that had heard of the case, or that
could not set aside their opinions on the case,
does not establish that the pretrial publicity
permeated the community to such an extent
that the decision to deny the motion for a
change of venue was outside the zone of
reasonable disagreement.
Id. at 449–450 (emphasis added). In addition, the
Court of Criminal Appeals reviewed Gonzalez‘s voir
dire process and held that ―[b]ecause the jurors were
going to be exposed to this evidence anyway, we
cannot hold that the publication of a surveillance video,
absent other facts, was by itself prejudicial and
inflammatory.‖ Id. at 452.
B. Only Two Cases in the Last Forty Years Were
Outside the Zone of Reasonable Disagreement
The decision in Gonzalez, that the trial court did
not abuse its discretion, was not surprising, considering
that the Court of Criminal Appeals has found an abuse
of discretion in regards to a change of venue on only
two occasions. See Henley v. State, 576 S.W.2d 66,
(Tex. Crim. App. 1978) (en banc) (rehearing denied
1979); Rubenstein v. State, 407 S.W.2d 793 (Tex.
Crim. App. 1966) (rehearing denied 1966). The Court
in Gonzalez was well aware of the rarity of such a
decision and observed:
suspects. Id. Additionally, newspaper articles covered the
murder and subsequent search for those responsible. Id.
After dissemination of the surveillance video and newsprint
publicity; Gonzalez and the juvenile gunman were
identified, thus leading to capture by the police. Id.
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Over the last forty years, this Court has been
reluctant to hold that pretrial publicity in a
case was so prejudicial and inflammatory that
the trial court's decision to deny a change of
venue was outside the zone of reasonable
disagreement. Although we have taken up
the issue numerous times in recent years, in
only two cases have we found that a trial
court abused its discretion in connection with
denying a motion to change venue: Henley
and Rubenstein.
Gonzalez, 222 S.W.3d at 451.
1. Henley v. State, 576 S.W.2d 66 (Tex. Crim. App.
1978)
In Henley, the trial court abused its discretion
because the court failed to hold a hearing on the
motion to transfer venue or allow the introduction of
any evidence regarding the pretrial publicity. Henley,
576 S.W.2d at 68, 76. The facts of the case involved
―six . . . highly publicized mass, homosexual rape and
torture murders. . . .‖ Id. The Court of Criminal
Appeals held ―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.‖ Id. at 72.
Since Henley involved the trial court‘s failure to
hold the required hearing or even allow the
introduction of relevant evidence, it is not instructive
on whether the trial court abused its discretion based
on a motion to change venue.13 However, the Court of
Criminal Appeals penned strong dicta addressing the
need for following the proper procedure outlined in
article 31.03(a) of the Texas Code of Criminal
Procedure in order to comply with due process of law.
13 Even though the Court of Criminal Appeals did not
make a determination on whether the trial court abused its
discretion by refusing to grant a motion to change venue; the
case does provide some indication that the Court was
concerned with appellant‘s ability to attain affair trial in the
county in the event of a retrial. Henley, 576 S.W.2d at 73.
―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 . . . overruled his objection to placing
newsmen within the bar.‖ Id. In addition, the Court noted
that after being moved from Harris County to Bexar County,
there were 240 news stories in the four San Antonio papers
from August 1973 to the end of July, 1974. Id. at 73 n.6.
One of the television stations, WOAI-TV, maintained a log
that reflected 85 telecasts during that same time period. Id.
A similar log from a radio station, KBVC, had 608 wire
stories and rewrites. Id.
See id. at 70. The Court highlighted the rationale
behind article 31.03(a) by explaining that:
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.
Henley, 576 S.W.2d at 70–71 (quoting Randle v. State,
34 Tex. Crim. 43, 28 S.W. 953 (1894)). In addition to
providing meaningful commentary on the need for
strict adherence to the procedural elements of article
31.03(a), Henley iterated the relevant factors used to
determine whether a fair trial was attainable when the
case was permeated with pretrial publicity. Id.
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.
Id. at 71–72. The factors listed in Henley have often
been used by Texas‘ courts of appeals when addressing
the fair trial and pretrial publicity issue. See Gonzalez
v. State, 222 S.W.3d 446, 448 (Tex. Crim. App. 2007).
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2. Rubenstein v. State, 407 S.W.2d 793 (Tex. Crim.
App. 1966)
In Rubenstein the Court of Criminal Appeals
specifically ruled that the trial court abused its
discretion by denying appellant‘s change of venue.
Rubenstein v. State, 407 S.W.2d 793, 796 (Tex. Crim.
App. 1976). The facts of the case are quite famous and
involve the events that occurred after the assignation of
President John F. Kennedy. Jack Rubenstein is better
known in the annuals of modern U.S. history as Jack
Ruby, the individual who shot and killed Lee Harvey
Oswald—J.F.K.‘s presumed assassin. See Rubenstein,
S.W.2d at 794. The shooting occurred while Lee
Harvey Oswald was being transferred from the Dallas
city jail to the county jail and was recorded by
televisions cameras. Id. The shooting of Oswald by
Rubenstein was broadcast to countless Dallas County
residents. Id. Appellant filed a pretrial motion to
change venue, which was subsequently denied. Id.
Appellant was convicted of murder and sentenced to
death. Id. The Court of Criminal Appeals reversed and
remanded the cause with instructions to change venue
to another county. Id. at 765.
The media attention capturing the events leading
to the trial of Jack ―Ruby‖ Rubenstein, provides a clear
example of when a change of venue based on publicity
is required. It is clear that the publicity reached a level
that would have violated our current standard, which
requires change of venue when the media attention is
so pervasive, prejudicial, and inflammatory that a fair
trial in compliance with due process would be
impossible. See Beets v. State, 767 S.W.2d 711, 743
(Tex. Crim. App. 1987), cert. denied, 492 U.S. 912
(1989) (emphasis added). The infamous television
footage capturing the murder played a crucial role in
the Court‘s decision.
The fact of the shooting of Oswald had been
seen on television many, many times on that
fateful day, November 24, 1963, in the
Dallas County area, by countless thousands
of citizens. This alone precluded Ruby from
receiving a fair and impartial trial by a Dallas
County jury. A fair and impartial trial is the
rightful boast of western civilization.
Rubenstein, 407 S.W.2d at 796 (McDonald, J.
concurring). In addition to Dallas residents being
exposed to the inflammatory television footage, the
Court elaborated on some of the other pertinent facts
that required the change of venue. See id. at 795–796
(McDonald, J. concurring).
The press had a field day with stories stating
directly, indirectly, by hints and innuendoes
that a Communist conspiracy existed
between Oswald and Ruby. Ruby was
referred to as a ‗tough guy,‘ a ‗Chicago
mobster,‘ a strip-joint owner. Anti-Semitism
against Ruby was sparked by pretrial
publicity that Ruby's name had been changed
from Rubenstein to Ruby. . . . The strong
local prejudice against Ruby was reflected in
the refusal of the County-operated Parkland
Hospital to permit Ruby to undergo
neurological testing for the purpose of
determining his organic brain condition for
trial purposes.
Id. at 796. In light of the inflammatory television
footage and additional commentary by the press, the
Court reasoned that the pretrial publicity prejudiced
Rubenstein‘s ability to receive a fair trial and further
explained:
[a]gainst such a background of unusual and
extraordinary invasions of the expected
neutral mental processes of a citizenry from
which a jury is to be chosen, the Dallas
County climate was one of such strong
feeling that it was not humanly possible to
give Ruby a fair and impartial trial which is
the hallmark of American due process of law.
Id. at 796.
C. In the Overwhelmingly Majority of Cases—A
Trial Court’s Refusal to Grant a Change of
Venue will Not be Considered an Abuse of
Discretion
1. Taylor v. State, 420 S.W.2d 601 (Tex. Crim. App.
1967)
Pretrial publicity has long been challenged for its
potential to create an environment in which the
defendant cannot receive a fair trial. Taylor v. State,
420 S.W.2d 601 (Tex. Crim. App. 1967) is an early
example of an attempt to challenge the trial court‘s
decision to deny a motion for change of venue. Taylor
also serves as an important example regarding the
process used by a higher court when determining
whether the trial court abused its discretion. As
reflected in Taylor, the two primary means of
determining whether publicity was pervasive is by
reviewing (1) the hearing on the motion to change
venue and (2) the voir dire process. See Taylor, 420
S.W.2d at 604; Gonzalez v. State, 222 S.W.3d 446, 449
(Tex. Crim. App. 2007). The defendant was convicted
of Murder with Malice and sentenced to ninety-nine
years.14 Id. at 603. Appellant challenged the trial
14 The facts of the case: ―On November 16,
1965, . . . appellant followed . . . the deceased, and [her
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court‘s refusal to grant the change of venue and
asserted ―that there existed so great a prejudice in the
county that he could not obtain a fair and impartial
trial.‖
At the hearing on the motion to transfer venue,
eight out of the nine witnesses called by appellant
testified that they had overheard and discussed the
case, and believed in their opinion that a fair trial could
not be reached in that county. Id. at 604. Ten
witnesses testified for the State and were all in
agreement that the case had been discussed only
slightly and they believed appellant could receive an
impartial and fair trial in that county. Id. In addition
to the testimony, appellant provided copies of the
Victoria Advocate and clip-outs from the Corpus
Christi Caller-Times.15 At voir dire, thirty-nine of the
one hundred twelve jurors indicated that they held the
opinion that appellant was guilty. Id. The majority of
the final jury selected noted that they had either heard
about the case or specifically read about the events in
the newspaper. Id.
The Court of Criminal Appeals determined that
the ―news accounts attached [to the record] appear to
be fair, non-inflammatory, and apparently published
for the purpose of informing the public of current
events.‖ Id. at 604 (emphasis added). Furthermore,
the Court held that there was no showing that
publication of the events ―created in the public mind a
prejudice so great as to prevent appellant from
receiving a fair trial.‖ Id.
D. Voir Dire—A trial judge need not grant a motion
for a change of venue, even where a substantial
number of prospective jurors have seen publicity
on the accused‘s case.
1. Gardner v. State, 733 S.W.2d 195, 204 (Tex.
Crim. App. 1987) (―To ask that a criminal
defendant be tried in a community untouched by
the news media is to be unrealistic in this day and
time.‖)
In Gardner v. State, 733 S.W.2d 195 (Tex. Crim.
App. 1987), appellant was convicted of murder in the
course of a kidnapping, and sentenced to death.16 On
husband]in his automobile and after overtaking their pickup
truck within the city of Goliad, shot and killed both of them
with his rifle.‖ Id. at 603. 15 The record reflected that the Victoria Advocate had a
circulation of 500 copies in Goliad County, however, no
additional circulation numbers were offered for the other
newspapers in the county. Id. at 604. 16 The facts of the case:
On August 26, 1980, two fourteen year old runaways,
Rocky Allen Crecy and Kandi Kae Reynolds, were
hitchhiking along an interstate highway. . . .
[a]ppellant, who was driving by, stopped and picked
the teenagers up. Appellant drove the pair down the
appeal, the denial of his motion for change of venue
was challenged. Gardner, 733 S.W.2d at 203.
Appellant‘s main argument was that the ―extensive
news coverage at the time of the offense, at the time of
appellant‘s arrest, in the few weeks immediately before
trial and during the time of voir dire examination was
so prejudicial as to deny him a fair trial.‖ Id. at 204.
At the hearing on Appellant‘s motion to transfer
venue, three local attorneys testified that appellant
could not receive a fair trial in light of the publicity
surrounding the offense and trial. Id. Subsequent
testimony by five witnesses, including one called by
appellant, controverted the local attorney‘s testimony.
Id. Additionally, in support of appellant‘s motion,
numerous newspaper articles and the transcripts of
several radio newscasts were introduced. Id. At voir
dire, fifteen out of the seventy-seven potential jurors
indicated that they had been exposed to enough pretrial
publicity from news media or personal conversation to
have formed conclusive opinions about appellant‘s
guilt. Id.
The Court of Criminal Appeals ruled the trial
court did not abuse its discretion by refusing to grant
appellant‘s motion to transfer venue. Id. ―The mere
fact that fifteen of the seventy-seven potential jurors
were excused because they had established conclusions
as to the guilt . . . does not in and of itself demonstrate
the inability of appellant to be tried by an impartial
jury.‖ Id. The Court based its decision on precedent
established in Adami v. State, 524 S.W.2d 693 (Tex.
Crim. App. 1975), where eighteen out of seventy-two
potential jury members admitted to possessing a
preconceived conclusion of guilt based on publicity,
and early precedent from Taylor v. State, 420 S.W.2d
601 (Tex. Crim. App. 1967), supra, where thirty-nine
out of one hundred and twelve expressed conclusions
of guilt. In both cases the Court of Criminal Appeals
held that the prejudice created by the publicity was not
so great that it would prevent a fair trial; therefore, the
trial court did not abuse its discretion by denying the
motion for change of venue. See Adami, 524 S.W.2d
at 703–704; Taylor, 420 S.W.2d at 604.
Specifically regarding the media attention, the
Court of Criminal Appeals noted, ―the trial
interstate and eventually turned down a gravel road.
He pulled off the road beside a bridge and told the
teenagers to get out of the car. The trio walked down
the embankment. There the appellant stabbed Crecy
numerous times and left him there. He took Reynolds
to a location near Lake Weatherford where he stabbed
her numerous times, hit her in the head with a rock
and then abandoned her. Meanwhile, Crecy had made
his way to a farmhouse. Help was summoned and he
was taken to a hospital. He survived his wounds.
Reynolds died from her wounds.
Gardner, 733 S.W.2d at 197–98.
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occurred . . . five months after the commission of the
offense and although a flurry of media attention
occurred at the time of the offense and appellant's
arrest and in the weeks prior to the trial, there had been
little or no coverage of the offense in the intervening
time.‖ Gardner, 733 S.W.2d at 205. It was the final
determination of the Court that ―the newspaper and
radio accounts concerning the case appear to be
accurate, informative and objective, not inflammatory
or prejudicial.‖ Id. at 205 (emphasis added).
2. Von Byrd v. State, 569 S.W.2d 883, 890-891 (Tex.
Crim. App. 1978).
In Von Byrd v. State, 569 S.W.2d 883, 890-891
(Tex. Crim. App. 1978), appellant was convicted of
capital murder and sentenced to death.17 Appellant
challenged the trial court‘s refusal to grant the motion
for change of venue. Von Byrd, 569 S.W.2d at 889. At
the hearing regarding the motion for change of venue,
a large quantity of newspaper circulation data were
introduced into evidence.18 Id. In addition, specific
articles were introduced about the crime and
subsequent investigation.19 Id. The crime was also
17 The facts of the case: ―the appellant . . . [made] a written
confession which set forth the details of the offense.‖ Von
Byrd, 569 S.W. 2d at 888.
The appellant turned around and Price fired the
pistol at him. The appellant lunged for the gun and
pushed it away from himself as Price fired a second
shot. The appellant took the gun away from Price,
and he and Price subsequently left the house in the
appellant's car. . . . The appellant finally stopped in
a highly wooded area. The appellant and Price
went into the woods. . . . [h]e then shot
her . . . Price died from the bullet wound.
Id. at 887.
18 The population and circulation numbers:
The evidence introduced by the appellant revealed
that the total population of San Augustine County in
1970 was approximately 7,850. The principal towns
were San Augustine, with a population of
approximately 3,100 and Broaddus, with a population
of approximately 400. The San Augustine Rambler, a
weekly paper, had a total circulation of approximately
4,000 throughout San Augustine, Shelby, Sabine and
Nacogdoches Counties. Approximately 2,400 to 2,600
of those were circulated within San Augustine
County. The San Augustine Tribune, a weekly paper,
had a total circulation within San Augustine County
of approximately 2,850, with additional circulation in
surrounding counties. The Beaumont Enterprise
Journal, a daily paper, had a circulation of
approximately 2,200 to 2,400 in San Augustine
County.
Id. at 888. 19 Description of articles:
covered heavily by radio and television media. Id.
Over the course voir dire, 109 potential jurors were
examined.20 Id. at 890. Even though, the Court of
Criminal Appeals found that a majority of prospective
jurors had been exposed to the case, there was no
evidence that the appellant did not receive a trial by an
impartial jury; the trial court did not abuse its
discretion by overruling the motion for change of
venue. Id. at 891. Additionally, the court determined
―the contents of the newspaper articles, which, by
themselves, do not establish prejudice or require a
change of venue. Id.
E. Hearing on Motion for Change of Venue—
Defendant faces a heavy burden to prove “the
existence of such prejudice in the community
that the likelihood of obtaining a fair and
impartial jury is doubtful.”21
1. Renteria v. State, 206 S.W.3d 689 (Tex. Crim.
App. 2006).
In Renteria v. State, 206 S.W.3d 689 (Tex. Crim.
App. 2006), appellant challenged the trial court‘s
decision to deny his motion for change of venue. The
case involved a well-publicized strangulation murder
of a child under the age of six.22 Renteria, 206 S.W.3d
A number of articles from the foregoing newspapers
were introduced which demonstrated that from
between June 6, 1976, when the deceased
disappeared, and June 26, 1976, when the deceased's
body was discovered, an intensive ―manhunt‖ was
underway. Moreover, the articles published after the
appellant's arrest and confession described the murder
as involving ―rape‖ or ―sex,‖ and they implied that the
appellant had been administered a polygraph
examination.
Id. at 888.
20 The following is a summary of voir dire questioning:
(1) 69 had either heard or read about the case, 1 might
have read about the case, 3 had neither heard or read
about the case, and 36 were not questioned in this
regard; (2) 28 knew the deceased or her family, 22 did
not know the deceased or her family, and 59 were not
questioned in this regard; (3) 21 were excused upon
challenge for cause, 44 were excused on the basis of
objections to capital punishment, 1 was excused due
to kinship, 1 was excused due to a hearing defect, 15
were peremptorily challenged by the appellant, 15
were peremptorily challenged by the State, and 12
were accepted by the trial judge as jurors.
Id. at 890. 21 DeBlanc v. State, 799 S.W.2d 701, 704 (Tex. Crim.
App. 1990), cert. denied, 501 U.S. 1259 (1991). 22 The facts of the case are the following:
On November 18, 2001, this five-year-old victim
disappeared from a Wal–Mart store where she was
shopping with her parents. The next day, her nude,
partially burned body with a partially burned plastic
Dealing with the Ethical and Legal Issues
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at 693; see Editorial, San Antonio Express-News, Dec.
6, 2001, available at 2001 WLNR 11965743; see also
Adriana M. Chavez, Death Sentence upheld for David
Renteria, El Paso Times, May 5, 2011, available at
2011 WLNR 8761273; Adriana M. Chavez, Appeals
Court upholds death Sentence for Renteria in 2001
murder of 5-year-old Alexandra Flores, El Paso Times
(May 04, 2011, 1:54 PM),
http://www.elpasotimes.com/newupdated/ci_17991576
. The Court of Criminal Appeals held that the trial
court did not abuse its discretion by denying
Appellant‘s motion for change of venue. Renteria, 206
S.W.3d. at 693. Specifically, the court reasoned:
[t]he introduction of the various witnesses'
testimony at the hearing on the motion to
change venue presented a factual dispute for
the trial court to resolve-whether appellant
could receive a fair trial in El Paso County.
The trial court found, and the record
adequately supports the finding, that
appellant could receive a fair trial. All the
witnesses who testified at the hearing, except
the defense attorneys, stated that appellant
could receive a fair trial in El Paso County.
We hold that the trial court did not abuse its
discretion in this case when it denied
appellant's motion for a change of venue.
Id. Furthermore, the Court elaborated that a defendant
must demonstrate ―an actual, identifiable prejudice
attributable to pretrial publicity on the part of the
community from which members of the jury will
come.‖ Id. at 709 (quoting DeBlanc v State, 799 S.W.
2d 701, 704 (Tex. Crim. App. 1990)). Appellant failed
to do so, thus the trial court did not abuse its discretion
by refusing to grant the motion for change of venue.
Id.
2. Dewberry v. State, 4 S.W.3d 735, 745 n.5 (Tex.
Crim. App. 1999).
In Dewberry v. State, 4 S.W.3d 735, 745 n.5 (Tex.
Crim. App. 1999), the Court of Criminal Appeals again
upheld the trial court‘s decision to deny appellant‘s
motion for change of venue because appellant was
unable to meet his heavy burden, and ―demonstrate that
bag over her head was discovered in an alley sixteen
miles from the Wal–Mart. When she was set on fire,
she already had been manually strangled. The medical
examiner testified that the victim also received two
blows to her head. The medical examiner also
testified that the victim could have been sexually
assaulted, although he found no physical evidence of
sexual assault.
Renteria, 206 S.W.3d at 693.
publicity about the case [was] pervasive, prejudicial,
and inflammatory.‖ Id. This case involved another
brutal and well-publicized capital offense.23 Based on
the evidence presented at the motion for a new venue
hearing, the Court of Criminal Appeals conclude that
appellant failed to demonstrate that he not could
receive a fair trial in Jefferson County. Dewberry, 4.
S.W.3d at 745.
3. Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App.
1996).
In Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim.
App. 1996), the Court of Criminal Appeals upheld the
trial court‘s findings that Appellant could receive a fair
trial in Jefferson County. Appellant was convicted of
murder in the course of a robbery committed on July
19, 1974. Bell, 938 S.W.2d at 41. The facts of the
offense actually involved a double murder; however,
separate indictments were handed down for the murder
of Irene Chisum and for the murder of Ferd Chisum.
Id. This case decided the appeal of appellant‘s
conviction and death sentence for capital murder of
Ferd Chisum. Id. The Court held that the trial court
was within its discretion to deny the motion to change
venue, even though, ―many people in the community
knew appellant had received two death sentences
which had been overturned.‖ Id. at 46–47. ―[T]he
publicity surrounding appellant‘s case had been fair,
not inflammatory, and had not fostered any hostile
public attitude towards appellant.‖ Id. at 46.
IV. GAG ORDERS
The trial court has the ability to combat a potential
violation of an accused‘s Sixth amendment right to an
impartial jury due to pretrial and trial publicity by
issuing a gag order. See In re Houston Chronicle
Publ’g Co., 64 S.W.3d 103, 108 (Tex. App.—Houston
[14th Dist.] 2001, no pet.). However, the trial court
must balance the First Amendment rights of the parties
involved and will impose a gag order ―only in
extraordinary circumstances, and only if there is the
23 The fact‘s of the case:
Elmer Rode‘s body [was] discovered in [the living
room of] his apartment on Christmas Day. . . . Rode's
hands were tied behind his back with a telephone
cord, and his feet were tied together with a belt. A
pillow with bullet holes was lying across his
head. . . . The forensic pathologist testified there were
four small caliber gunshot wounds and one contact
shotgun wound to Rode's head. The pathologist also
found evidence indicating Rode was beaten up and
strangled at some point. Abrasions on Rode's wrists
suggested Rode struggled against his bonds before he
was killed. . . . The State also introduced evidence
showing Rode was robbed.
Dewberry, 4 S.W.3d at 741.
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threat of imminent, severe harm. . . . [caused by]
extensive media coverage [that] will harm the judicial
process.‖ In re Houston Chronicle Publ’g Co., 64
S.W.3d at 108. Two mandamus cases from the last
decade are particularly instructive on whether a gag
order was appropriate in regards to media attention and
the accused‘s ability to attain a fair trial by an impartial
jury. See id.; In re Ashley Benton, 238 S.W.3d 587
(Tex. App.—Houston [14th Dist.] 2007, no pet.). The
major distinction between the two cases involve the
scope of the media coverage—national media coverage
versus local attention.
1. In re Houston Chronicle Publ’g Co., 64 S.W.3d
103, 108 (Tex. App.—Houston [14th Dist.] 2001,
no pet.)
In re Houston Chronicle Publ’g Co. stemmed
from the Andrea Yates case, in which the accused was
charged with the horrific act of drowning her five
children, ranging from the age of seven years to five
months. In re Houston Chronicle Publ’g Co., 64
S.W.3d at 105. The case received considerable media
attention in Houston and from the national news
outlets. Id. Most importantly, there was extensive and
detailed reporting of the statements made by the
attorneys involved in pretrial. Id.
The trial judge, the Honorable Belinda Hill,
entered a gag ―order prohibiting attorneys of record
and other trial participants from communicating with
the media.‖ Id. at 108. In support of the gag order,
Judge Hill took judicial notice of the current media
climate,24
and ruled that the demonstrated willingness
of the attorneys to give interviews to the media will
increase the volume of pretrial publicity. Id. at 108.
Judge Hill further ruled that if the attorneys are
allowed to continue giving ―interviews to the media,
the pretrial publicity will interfere with defendant‘s
right to a fair trial by an impartial jury.‖ Id. The gag
order mandated that all attorneys involved in the case
must strictly adhere to rule 3.07 of the Texas Code of
Professional Responsibility. Id. at 108–09.
Specifically,
. . . all attorneys shall refrain from making
―extrajudicial statements that a reasonable
24 The Court took judicial notice of:
1) the unusually emotional nature of the issues
involved in this case; 2) the extensive local and
national media coverage this case has already
generated; and 3) the various and numerous media
interviews with counsel for the parties that have
been published and broadcast by local and national
media.
Id. at 108.
person would expect to be disseminated by
means of public communication if the lawyer
knows or reasonably should know that it will
have a substantial likelihood of materially
prejudicing an adjudicatory proceeding.‖
Id. at 109 (quoting Tex. Disciplinary R. Prof'l Conduct
3.07(a)).
Judge Hill‘s gag order was challenged by the
Houston Chronicle, who alleged ―that the gag order
was an unconstitutional restraint on its ability to gather
news because it effectively denied access to trial
participants.‖ Id. at 105. The court of appeals
disagreed with the Houston Chronicle, holding that
Judge Hill did not abuse her discretion by instituting
the gag order in light of the ―extensive local and nation
media coverage.‖ Id. at 109–10. The court expressed
the notion that in certain circumstances, such as the
Andrea Yates case, ―freedom of expression
must . . . yield to a defendant‘s Sixth Amendment right
to a fair trial. . . .‖ Id. at 110.
2. In re Ashley Benton, 238 S.W.3d 587 (Tex.
App.—Houston [14th Dist.] 2007, no pet.).
The facts surrounding the background to In re
Ashley Benton generated far less pretrial publicity than
the national media swarm that permitted Andrea Yates‘
case. Benton was alleged to have stabbed a rival gang
member to death during a gang fight. In re Ashley
Brenton, 238 S.W.3d 587, 588 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). The trial court granted a gag
order on motion by the State, in a second trial, after a
mistrial occurred and details of the subsequent plea
negotiations were reported in the Houston Chronicle.
In re Ashley Brenton, 238 S.W.3d at 588–89.
The trial judge determined that ―[t]here is a
substantial probability that the Defendant‘s fair trial
rights will be prejudiced by the publicity that an order
restricting extrajudicial commentary by trial counsel
for the Defendant and State would prevent.‖ Id. at 591.
The gag order restricted all attorneys and their staff
from making any extrajudicial statements on specific
subjects surrounding the case. See id. at 592. The trial
judge further opined that the gag order and its
restrictions are ―necessary and [are] designed to protect
the judicial system‘s integrity and the Defendant‘s fair
trial rights.‖ Id. at 591.
The gag order was challenged on mandamus
appeal where realtor argued that the order violated
―free speech guarantees of the Texas Constitution.‖ Id.
at 592. The court of appeals agreed, and held that the
trial court had abused its discretion in ordering the gag.
Id. at 601. The court of appeals further agreed that
there was no support for a finding that the publicity
Dealing with the Ethical and Legal Issues
Associated with Pretrial Publicity in Capital Cases Chapter 15.6
11
was prejudicial to the defendant‘s ability to have an
impartial jury at trial. Id. at 597. The court noted that
. . . we are not unaware that Harris County,
with its millions of residents, is the most
populous county in Texas and one of the
most populous counties in the entire nation.
We cannot say that the content of the
publicity thus far, including the disclosure of
details of a single plea bargain negotiation,
could result in such prejudice that the trial
court's ability to seat twelve impartial jurors
would be jeopardized in the absence of a gag
order.
Id. at 600. The opinion closes with the assertion that
pretrial publicity rises to a level that presents a danger
of prejudice in only exceptional cases; specifically
citing the intensely publicized Andrea Yates murder
trial and ruling that ―[t]hus far, this is not such a case.‖
Id. at 601–02.
IV. CONCLUSION
Considerations founded upon due process of law
and the Sixth Amendment, require an accused to
receive a trial by an impartial jury, free from outside
influence. However, these considerations are often
balanced by the fundamental rights of freedom of
speech and a free press. The existence of pretrial
publicity in capital cases leaves the criminal lawyer
with few realistic procedural options.
As this article illustrates, a change of venue is
rarely granted; the standard that publicity must be so
pervasive, prejudicial, and inflammatory,25 is difficult
to meet. In addition, gag orders walk a tight rope when
navigating considerations of free speech. They are
only applied in unique cases in which the potential for
prejudice is extremely high, and the court determines
that the need for an impartial jury outweighs the First
Amendment rights‘ of the trial participants.
The lack of effective procedural options
necessitates that a criminal lawyer be cognizant of the
requirements set forth in Rule 3.07 of the Texas
Disciplinary Rules of Professional Conduct regarding
trial publicity. A lawyer should not contribute to
pervasive media attention in a manner that violates
ethical obligations. Rule 3.07 provides guidance by
detailing the types of extrajudicial statements made by
a lawyer that will or will not ordinarily create a
violation. See Tex. Disciplinary R. Prof'l Conduct
3.07(b)(c) & cmt. 4. However, the examples outlined
25 Beets v. State, 767 S.W.2d 711, 743 (Tex. Crim. App.
1987), cert. denied, 492 U.S. 912 (1989); Bell v State, 938
S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc) (emphasis
added).
in rule 3.07 are not an exhaustive and inflexible list.
See id. at cmt. 3 & cmt. 4.
It is clear that Rule 3.07 forces a lawyer to use
sound discretion when engaging in trial or pretrial
extrajudicial commentary with members of the media.
Id. at cmt. 4. The ultimate guiding principle for a
Texas lawyer is to refrain from making ―extrajudicial
statement[s] that a reasonable person would expect to
be disseminated by means of public communication if
the lawyer knows or reasonably should know that it
will have a substantial likelihood of materially
prejudicing an adjudicatory proceeding.‖ Id. at
3.07(a). This guiding ethical principle regarding trial
publicity, should be adhered to by Texas lawyers in
order to preserve a defendant‘s Sixth Amendment
right; especially when the trial involves an alleged
capital offense—punishable in Texas by death.
