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Click here for the full text of this decision FACTS:On Oct. 29, 2002, Charles Gonzalez and his juvenile companion, Adam C., entered a Good Times Store in El Paso County. Adam carried a .22 rifle. The store was equipped with surveillance cameras, which recorded Gonzalez and Adam entering the store, threatening the victim with the rifle and demanding that he turn over “everything.” After Gonzalez took the cash, Adam shot the victim once in the chest, killing him. In an attempt to identify and locate the suspects, local newscasts aired the surveillance tape depicting the murder of the convenience store clerk. Numerous newspaper articles also covered the murder and the search for the culprits. Someone recognized Gonzalez and reported him to the police. Police arrested Gonzalez for capital murder. At a pretrial hearing on a defense motion for change of venue, Gonzalez called two witnesses. The first, El Paso attorney Ronald Henry, testified that he did not believe that Gonzalez could receive a fair trial in El Paso County. He based this conclusion upon his conversations with individual citizens, both in the courthouse and throughout the community. Henry also testified that the media coverage in this case was abnormally heavy, compared to a regular criminal case in the county. As examples of this, he used three newspaper articles from the time of the offense and the television broadcasts showing the surveillance video. Henry remarked that he had seen the video on television twice. He agreed on cross-examination that, in the year leading up to the venue hearing, he had not seen any media coverage mentioning Gonzalez, other than in passing in articles about his fellow defendant, Adam. The second of Gonzalez’s witnesses was private investigator Arnold Davis. Davis testified that he had become familiar with the case from seeing footage from the surveillance video on the news, which he described as “play[ing] the video repeatedly.” He was unable to remember specifically how often it was played, other than saying that it was “at least every time the news was on.” Davis also talked about the positive coverage that the victim in the case received after the murder. Finally, he testified that, through his conversations with people in the community, he believed that Gonzalez would not be able to receive a fair trial in El Paso County. Under cross-examination, Davis acknowledged that he did not know how many people had actually seen the television footage or read the newspaper coverage of this particular case, nor could he make an informed judgment as to how other El Paso residents reacted to the coverage. After hearing this testimony, the court denied the motion for venue change, stating that it lacked evidence as to what extent the negative media coverage “permeated into the community.” The court stated that Gonzalez could reassert the motion after voir dire. At voir dire, roughly two-thirds (121 out of 180) of the jury panel members informed the trial court that they had heard of the case, and roughly one-third (58 out of 180) of the panel members stated that they had formed an opinion about the case that they could not set aside. After voir dire, citing the number of people who had either heard of the case or formed an unalterable opinion about the case, Gonzalez re-urged his motion for a change of venue, which was again denied. A jury subsequently convicted Gonzalez and sentenced him to life in prison. On appeal, Gonzalez contested the trial court’s decision to deny the motion for change of venue. The 8th Court of Appeals reversed, holding that pretrial publicity resulted in actual, identifiable prejudice to Gonzalez. The 8th Court cited the pretrial publicity, the connection of government officials with the publicity, the length of time between the publicity and the trial, the severity and notoriety of the offense, the impact of the publicity, and the candor and veracity of prospective jurors during voir dire. Noting that “pictures often speak louder than words,” the court also stated that the presence of the surveillance video moved the trial court’s ruling outside the court’s discretion. Based on these factors, the 8th Court held that the prejudice was so great that Gonzalez could not obtain a fair trial in El Paso. HOLDING:Reversed and remanded. The two primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and the voir dire process. The trial court in this case relied on both, the CCA noted. At the hearing, the CCA stated that Gonzalez presented no evidence of how many times the video was shown nor of how many people actually saw the broadcast. Similarly, no evidence was presented as to how many people saw the newspaper coverage of the case. The only evidence of how widespread the publicity’s audience was, or the effect of the publicity on that audience, came from Gonzalez’s two witnesses at the venue hearing, the CCA stated, and the trial court had discretion to consider or discount this evidence as it saw fit. In regard to the voir dire process, Gonzalez argued that the number of jurors that were unable to serve on a jury in this case demonstrated the extent to which pretrial publicity had permeated the community. By Gonzalez’s reasoning, the fact that approximately two-thirds of the panel had heard about the case, and that approximately one-third of the panel had an opinion that could not be set aside, was reason enough to consider the entire community “infected” by the pretrial publicity. But the CCA found cases where it upheld convictions even though greater percentages of members of the venire panel had heard of or formed an opinion of the case before jury selection. The CCA also found that the trial court was within its discretion to believe the jurors’ assurances that: 1. They had not seen any publicity on the case; or 2. The publicity had not influenced them to the point that they could not deliver a fair verdict. Even though the lack of pervasiveness alone was enough to sustain the trial court’s ruling, the CCA also examined the question of whether the publicity was inflammatory and prejudicial. In examining whether the pretrial publicity is prejudicial and inflammatory, a trial court may take three matters into consideration: 1. the nature of the publicity; 2. any evidence presented at a change of venue hearing; and 3. testimony received from venire members at voir dire. News stories that are accurate and objective in their coverage, the CCA stated, are generally considered not to be prejudicial or inflammatory. The coverage by the local media in the case, the CCA stated, was accurate and objective. Although a large number of panelists were disqualified for cause because they were unable to set aside their opinion of Gonzalez’s guilt, those circumstances did not require a conclusion that the publicity was inflammatory or prejudicial. Moreover, the surveillance video that Gonzalez labeled as prejudicial and inflammatory was evidence of the crime that in fact was later admitted in its entirety at trial. Because the jurors were going to be exposed to this evidence anyway, the CCA stated that it could not hold that the publication of a surveillance video, absent other facts, was by itself prejudicial and inflammatory. OPINION:Keller, P.J., delivered the opinion of the court in which Price, Womack, Keasler, Hervey, Holcomb and Cochran, J.J., joined. CONCURRENCE:Johnson, J., concurred in the judgment of the court without a written opinion. DISSENT:Meyers, J., filed a dissenting opinion. “The fact that the actual crime was shown on the news and that the community was asked to help identify Appellant and his co-conspirator is more than just a minor distinguishing factor in this case. I agree with the court of appeals that”what makes this case especially notorious is that a large number of the public watched a video of Appellant and the co-defendant committing the offense. It cannot be disputed that seeing a video of a person being robbed and gunned down is markedly different and likely to have a greater emotional impact on the viewer than reading a newspaper account about the offense and the police investigation.’”

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