Lundstrom v. State

CAMPBELL, Judge,

dissenting.

One would cast his eyes upon the land and not find a greater effort to promote form over substance than the majority opinion in the instant case. It is by all conceded that the controverting affidavits filed by the State in answer to appellant’s motion for change of venue did not attack such motion by the specific magical incantation “no credibility or no means of knowledge”. But can it seriously be doubted that the controverting affidavits attack the very heart of the appellant’s motion for change of venue i.e., there existed in East-land County so great a prejudice against him that he cannot obtain a fair and impartial trial?

The majority opinion would decry the overruling of precedent 100 years in age, and in doing so, sets its feet in the concrete of Davis v. State, 19 Tex.Ct.App. 201 (1885) and Carr v. State, 19 Tex.Ct.App. 635 (1885). So be it. Let us also then examine the holdings in Meuly v. State, 26 Tex.App. 274, 9 S.W. 563 (1888) and Pierson v. State, 21 Tex.App. 14, 17 S.W. 468 (1885).

In Pierson, supra, Presiding Judge White opined that a State’s controverting affidavit was sufficient which contained a “general denial of the sufficiency of means of knowledge of the compurgators,” without more. In other words, that Court sanctioned the mere conclusory recitation of one of the statutory requirements of attacking a defendant’s motion for change of venue. But three (3) years later in Meuly, supra, the same Presiding Judge White explicated the following:

“To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter.”

Id., 9 S.W. at 564. Thus the same Court of Appeals that decided Davis, supra, and Carr, supra, acknowledged implicitly in Meuly, supra, that affidavits such as those filed by this State in the instant case would be sufficient to controvert the motion for change of venue in the instant case.

What I glean from all of these old cases is that the burden is on a defendant to file his motion for change of venue with supporting affidavits, and that the State must then either default by filing nothing, see Durrough v. State, 562 S.W.2d 488 (Tex. Cr.App.1978), or join issue by filing controverting affidavits to show that such prejudice does not exist. It may successfully controvert by means of a general denial of the “credibility” or “means of knowledge” of the defendant’s compurgators, or it may, as in the instant case, generally deny that there exists “so great a prejudice against” the defendant or a “dangerous combination against” the defendant so that “he cannot expect a fair trial.” See generally, Art. 31.03, V.A.C.C.P.

By elevating magic phrases or incantations such as “credibility” or “means of knowledge” to the sacred altar of fundamental error, the majority seriously erodes what a majority of this Court accomplished in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) and Adams v. State, 707 S.W. 2d 900 (Tex.Cr.App.1986). T,o such erosion, I vigorously dissent.

ONION, P.J., and TOM G. DAVIS and W.C. DAVIS, JJ., join in the dissent.