I respectfully dissent. Gutierrez correctly states he would be entitled to a change of venue as a matter of law if the trial court denied his sufficient motion to change venue at the January 24, 1995 pretrial hearing in the absence of a hearing or controverting affidavits. E.g., Foster v. State,779 S.W.2d 845, 855 (Tex.Crim.App. 1989), cert.denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990).
However, as the State points out, while the trial judge initially denied Gutierrez's motion to change venue at the January 24 hearing, after granting Gutierrez's motion for continuance, he indicated he would reset Gutierrez's motion to change venue.
The Court: You filed a motion for change of venue?
The Cortes: Yes, Your Honor.
The Court: Okay, and I will deny that motion.
Mr. Kirkendall: Your Honor, I would like the record to reflect that this case has been set for pretrial on at least three prior occasions, the most recent being yesterday, the 23rd.
Today, the 24th, is the date they filed their motion for change of venue and handed it to me just this moment. Article 28.01 of the Code of Criminal Procedure requires that any such motion be filed at least 7 days before pretrial or be waived.
The Court: I denied it as far as the change of venue is concerned.
. . . .
Mr. Kirkendall: Your Honor, is there another pretrial date we could have for the —
The Court: Yes. I would like to —
Mr. Kirkendall: — the motion for change of venue, particularly.
The Court: All right, let me do this.
Mr. Kirkendall: It is going to have to be an evidentiary motion.
. . . .
The Court: In fact, before you leave here today, we are going to come up with a date for that pretrial, okay? All right.
In line with these comments, the trial judge reset the trial for February 28 and scheduled another pretrial hearing for January 27. After this pretrial hearing, the State filed controverting affidavits.
At the January 27 hearing, the trial judge attempted to take up Gutierrez's motion to change venue but Gutierrez refused to present the motion:
PROCEEDINGS Friday, January 27, 1995
The Court: The criminal case for today is Cause No. 94-1081-CR, the State of Texas vs. Marcos Gutierrez.*Page 94Mr. Kirkendall: The State is ready, Your Honor.
Mr. Cortes: Defendant is ready, Your Honor.
The Court: Is the defense ready?
Mr. Cortes: We're ready to proceed.
The Court: We're here on a hearing on your motion for change of venue. Is that correct?
Mr. Cortes: I would object to the proceeding as far as that is concerned, Your Honor. My understanding is that my change of venue was denied a couple of times on the record on Tuesday.
The Court: Okay. Now, do you want a hearing?
Mr. Cortes: No, Your Honor. I don't want a hearing.
The Court: We're on the record now, sir. And what I'm concerned about is — if you want a hearing, this is your opportunity.
Mr. Cortes: I will object to the proceedings on the motion for new trial, especially in light of Stapleton v. State, 565 S.W.2d 532, which indicates that as a matter of law, I would have been entitled to a change of venue if the State did not present controverting affidavits or evidence controverting my motion, which
was not done. My motion was denied without any evidence or, essentially, a hearing.*Page 95Mr. Kirkendall: Your Honor, just so the record is complete, Counsel did not file a motion for change of venue through three pretrials and one pretrial conference and shows up the day of trial with a motion for change of venue.
The Court denied it based on, I assume, our objection which — it was late filed. It was not filed more that seven days before the pretrial hearing. Then, when the Court granted the continuance, which was the other motion, the Court set this hearing for today. We, subsequently, properly filed controverting affidavits, which I assume Counsel has received.
The State is ready. I have my witnesses on standby. I have one conflict at 9:30; and I would like to be excused to go to that because it was prior scheduled, and some people are coming in from out of state. But other than that, the State is ready to go this morning.
The Court: All right.
Mr. Cortes: The change of venue issue is a constitutional issue. I can raise it anytime before I announce ready for trial, which I did.
Again, it was denied. It was not set for a hearing. And subject to the hearing, maybe it would be denied. It was denied without a hearing and without controverting affidavits. The denial was not based on anything other than —
The Court: It was denied based on the fact that you did not timely file it. You were set for trial, okay. Tuesday, January 24, 1995. You knew that.
And the record will reflect that you filed your motion for change of venue that day, January 24, 1995. Is that correct?
Mr. Cortes: That's correct, Your Honor.
The Court: Okay. I later granted you a motion for a continuance, and I'm giving you the opportunity to go ahead and have a hearing on your motion for change of venue. This case has been rescheduled for jury trial on February 28, 1995. Do you understand that?
Mr. Cortes: Yes, Your Honor, I do.
The Court: Are you telling this Court that you do not want a hearing on the motion for change of venue?
Mr. Cortes: I do not want another hearing on the motion for change of venue. I didn't get a hearing the first time.
The Court: You didn't have a hearing because you didn't timely file the motion.
Mr. Cortes: Again, Your Honor, then, I would imagine that, properly, it should have been set for Friday without being denied. My motion was denied.
I'm not filing a new motion now. If the State wants to file a motion, fine. I'll agree to it.
The Court: Are you telling this Court that you're, then, wanting this Court to dismiss your motion for change of venue?
Mr. Cortes: Your Honor, the way I understand it, my motion has been denied. I don't have another motion.
The Court: Your motion, as far as any denial was concerned, was based on the fact that you had announced ready for trial; and you wound up coming here and filing a motion for change of venue the day of trial.
Mr. Cortes: I believe, Your Honor, that I am entitled to do that. It's a constitutional issue. I can bring up a change of venue anytime before I raise — announce ready for trial.
The Court: And thereby —
Mr. Cortes: I did that.
The Court: And thereby delay the trial itself? Is that what you're telling me?
Mr. Cortes: That's not what I'm saying, Your Honor. I'm just saying it's a constitutional issue that can be brought up anytime before I announce ready for trial, and that's what I did.
Mr. Kirkendall: Your Honor, it's clear that Counsel is attempting to do nothing other than sandbag this Court.
The Court has given them every opportunity to have a hearing. He has clearly waived his right to a hearing on his
motion for change of venue. The State is ready to proceed and will remain ready throughout the day.*Page 96 Gutierrez thus did not reurge his motion to change venue at the subsequent pretrial hearings held on February 17 and 27; he did not reurge his motion when he presented other last minute pretrial matters before trial began on February 28 or at any time thereafter; he did not object that he could not get a fair trial in Guadalupe County when the case was called for trial February 28 but instead announced "ready"; he conducted extensive voir dire without objecting; he did not object to proceeding with the panel he participated in selecting; and he did not reurge or object to the absence of a hearing at any later time during the guilt-innocence or punishment phases of the trial.The Court: What is your motion again?
Mr. Cortes: If sandbagging is procedural errors, then that must be what I'm doing here. The procedural problem I see now — I raised the issue that I am entitled to bring up anytime before I announce ready for trial. That's exactly what I did. My motion was denied without any controverting affidavits or a hearing.
The Court: I am giving you that opportunity, and you're [not] taking advantage of it.
Mr. Cortes: Your Honor, I'm not filing another motion. My motion is denied. I think it's reversible error.
The Court: All right. Mr. Cortes, please. I want to go ahead and see that your client gets a fair trial. Okay? And I'm giving you this opportunity, and you're telling me in so many words — you're telling me in so many words that you don't want a hearing on your motion for change of venue.
Mr. Cortes: No, Your Honor. That's not what I'm saying. I'm saying that my motion was already denied on the record at least two times. I believe that if we continue it this way — I'm not bringing another motion because I think the way it was denied is reversible error. We could continue on this path, that's fine. I'll bring it up on appeal.
The Court: All right. Let me ask you this: Is there any [sic] other motions you are filing here prior to the trial of this case on [February] 28th?
Mr. Cortes: Yes, Your Honor, there are. I have today a motion for discovery. We don't have to hear it today, we can hear it later. I have correspondence from opposing counsel that I can go ahead and contact them concerning the D.P.S. lab. Now he has a list of the documents that my expert requested of me. We can get together and get these documents.
I also have a motion to suppress on your file. But the change of venue motion — my change of venue has been denied.
The Court: All right. Mr. Cortes, as far as the Court is concerned, I've given you the opportunity to have a hearing on your motion for a change of venue. As far as this Court is concerned, it appears that you do not want a hearing.
Mr. Cortes: Again, Your Honor, I believe that, again, it was denied, two times on the record. There is no motion if my motion has already been denied. I don't have another motion.
I had one motion. It was denied without controverting affidavits or without a hearing. It was not set for today to be heard. It was actually denied. And this date was set for a motion for change of venue, but it's not mine.
The Court: So, apparently, you're abandoning your motion for a change of venue?
Mr. Cortes: Pardon me?
The Court: You're abandoning your motion for a change of venue?
Mr. Cortes: No, Your Honor, I am not abandoning it. My motion has been denied.
The Court: That's all we have. Anything else?
Mr. Cortes: Thank you, Judge.
Mr. Kirkendall: May I be excused, Your Honor?
The Court: Wait a minute. Excuse me, one other thing so we are not playing this game on the 28th.
Mr. Cortes: I understand that, Your Honor. I —
The Court: No, no, no, no. Let's go on to another subject. You file another motion. Okay? I don't want to wind up hearing those motions the day of trial. So what I'm encouraging you to do is get your motion filed, and we'll set a date for those for hearing if it's necessary —
Mr. Cortes: Okay.
The Court: — so we don't wind up coming in here February 28th and having the same problem that we had this past Tuesday, the 24th of January, when you filed a motion at the last minute.
In short, after initially denying Gutierrez's motion to change venue, the trial judge effectively withdrew this ruling and held Gutierrez's motion in abeyance — as he was entitled to do. Foster, 779 S.W.2d at 854-55. Thereafter, Gutierrez simply refused to present his motion to change venue. He never reurged it, he never requested a hearing, he never objected to the absence of a hearing, and he never suggested he was constitutionally entitled to a hearing. Under these circumstances, I would hold the trial court did not abuse its discretion in denying Gutierrez's motion to change venue, e.g., Penry v. State, 903 S.W.2d 715, 727 (Tex.Crim.App. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995), because a "reasonable view of the record" supports the conclusion the trial court held his ruling on Gutierrez's motion in abeyance at the January 24, 1995 pretrial hearing and, thereafter, Gutierrez effectively withdrew and thus waived his motion. See Jenkins v.State, 912 S.W.2d 793, 811 (Tex.Crim.App. 1993) (citing TEX.R.APP. P. 52(a) and articles 28.01 and 31.03, TEX.CODE CRIM. PROC. ANN. (Vernon 1989)) (defendant effectively waived right to hearing on motion to change venue filed just before punishment phase of trial to begin); cf. Long v.State, 823 S.W.2d 259, 279 (Tex.Crim.App. 1991), cert.denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992) (defendant waived instructional error despite initial objection by later accepting court's charge); Tucker v.State, 771 S.W.2d 523, 534 (Tex.Crim.App. 1988), cert.denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989). Any other result promotes form over substance, invites reversals on a technicality that has absolutely no "fair trial" significance, and invites defendants to sandbag the trial court in contravention of the text, spirit, and purpose of Rule 52(a), TEX.R.APP. P. See Janecka v. State, 823 S.W.2d 232, 243 (Tex.Crim.App. 1990).
While the literal text of the Texas Court of Criminal Appeals' opinions on this issue justifies the majority's result, I simply cannot and do not believe the Court intended this result to follow from its narrow holdings that a motion to change venue is of constitutional dimension and therefore need not comply with the deadlines contained in article 28.01, section 1(7) and 2, TEX.CODE CRIM. PROC. ANN. (Vernon 1989), in Enriquez v. State, 429 S.W.2d 141, 142 (Tex.Crim.App. 1968), and Revia v. State, 649 S.W.2d 625, 626-27 (Tex.Crim.App. 1983). See Faulder v.State, 745 S.W.2d 327, 338 (Tex.Crim.App. 1987), cert.denied, ___ U.S. ___, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996) (stating Revia held limitations of article 28.01 not bar to consideration of motion to change venue). As the court has made clear in its more recent opinions, the fact that article 28.01 does not bar consideration of a motion to change venue does not mean a motion to change venue cannot be waived. See Jenkins, 912 S.W.2d at 811; Cooks v.State, 844 S.W.2d 697, 730 (Tex.Crim.App. 1992), cert.denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993).
I would overrule Gutierrez's first point of error regarding racial discrimination in the Guadalupe County grand jury process along the lines set forth in the majority's opinion. In line with this dissent, however, I would also overrule Gutierrez's second and only remaining point of error. Therefore, I would affirm the trial court's judgment. For this reason, I respectfully dissent. *Page 97