concurring.
The dissent “gleans” that once the defendant files his affidavits supporting a motion for change of venue, the State’s controverting affidavits need only “show that such prejudice does not exist.” (At *285287). To hold otherwise is, to paraphrase the dissent, to elevate the importance of magic phrases and incantations at the expense of the real substance of the issue and is further a retreat from this Court’s recent moves away from the concept of “automatic” reversible error as exemplified in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (abolishing the concept of automatic reversal in jury charge error); Adams v. State, 707 S.W.2d 900, (Tex.Cr.App.1986) (abolishing the concept of automatic reversal in motion to quash error); Santana v. State, 714 S.W.2d 1, (Tex.Cr.App. No. 68,930, delivered April 9, 1986) (abolishing the concept of automatic reversal in voir dire questioning error). I beg to differ with the dissenters on both points.
The Chapter 31, V.A.C.C.P. statutory means by which an issue concerning change of venue is joined, as consistently interpreted by this Court since the last century, acknowledges the trait of human nature that we seldom all agree on anything. It is plainly contemplated, it seems to me, that the State will always be able to get as many witness affidavits stating that the defendant can obtain a fair and impartial trial as the defendant will be able to get stating that he cannot. So rather than enter into the numbers game feared by Chief Justice Roberts in Walker v. The State, 42 Tex. 360 (1875), as quoted by the majority opinion (page 284), it is contemplated that if, at least two persons whose credibility or means of knowledge has not been attacked by affidavit under oath believe that the defendant cannot expect or obtain a fair trial, then no further proceedings are relevant to the question. The motion is to be granted as a matter of law notwithstanding the acknowledged reality that the State is most certainly able to find witnesses who have a contrary opinion.
The threshold question therefore is not whether the defendant can, as a matter of reality, receive a fair trial but whether at least two people in the community whose credibility and means of knowledge are unassailed believe that he can’t expect or obtain one. Only when the credibility or means of knowledge of the witnesses has been challenged by affidavit1 does the trial court enter into the determination of the merits of the motion.2 At that point, as pointed out by Presiding Judge White in Meuly v. State, 26 Tex.App. 274, 9 S.W. 563 (1888) (cited as supportive by the majority and the dissent) the issue is the existence or non-existence of prejudice rather than the credibility or means of knowledge of the witnesses who swore to the affidavits.
This, in the wisdom of the Legislature, is the procedure and it is their prerogative to change this procedure or leave it substantially unchanged. As the majority correctly points out, they have since the 1800’s chosen the latter course. At the risk of being redundant I must point out that the majority opinion, rather than being an “effort to promote form over substance” (dissenting opinion, opening sentence), is merely adhering to stare decisis and the Legislature’s choice.
As a proponent of the holdings in Al-manza, supra, Adams, supra, and Santana, supra, I feel further compelled to point out that the gist of those eases did not so much involve a change in what was error but rather promulgated a change in the effect of the commission of the error. If one wants to complain that the majority opinion is a retreat from the spirit of these cases, one might attack the majority for not finding that the error here was harmless in light of the fact a jury of seemingly fair and impartial citizens was in fact chosen.3 But in maintaining that what has *286been error for a hundred plus years is still error, the majority in no way retreats from the spirit of Almanza, supra, Adams, supra, and Santana, supra.
With these comments, I join the majority opinion.
. A relatively easy feat to accomplish where the State truthfully believes their credibility or means of knowledge merits attack. See Mansell v. State, 364 S.W.2d 391, 395 (Tex.Cr.App.1963).
. Except of course where the defendant waives such challenge by affidavit by proceeding to a hearing without objection. Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App. 1974).
.The defense didn’t use all his peremptory strikes, didn’t object to any improper sustaining of State’s challenges and didn't complain that any objectionable jurors served on the jury. Still the State neither makes such a harmless error contention nor asserts such a proposition in its petition for discretionary review (nor should such a contention be entertained for the first time on motion for rehearing). It must be *286remembered that in this case the appellant specifically relied on stare decisis and, after pointing out the relevant caselaw to the trial judge, gave up his right to present his evidence (as he had to in order to preserve error) and relied on the hitherto unchallenged fact that he need make no record of further harm.