Just because we have upheld the trial court's denial of a motion for change of venue in numerous cases does not mean that we should do so in this case. The majority says that the video of the crime is the only thing that distinguishes this case from all the other cases in which motions for change of venue were denied. And, this sole distinguishing factor is not enough to convince the majority that the trial court's decision to deny the motion for change of venue was an abuse of discretion. I disagree. 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." Gonzalez v. State, 2005 Tex. App. LEXIS 7146 at *14 (Tex. App.-El Paso 2005).

The majority points out that there was no evidence of how many times the video was shown, or how many people had seen news coverage of the crime. However, the Appellant was prepared to present this evidence, but the State objected, and the trial judge refused to have another hearing to allow the evidence to be presented. And, Appellant submitted a bill of exception which included this information. It is interesting to note that this information was presented in support of Appellant's co-conspirator's motion for change of venue, which was granted.

The court of appeals used the proper standard in analyzing this case and did not ignore the trial court's efforts. The court stated that,

It is clear from the record that the trial court endeavored to select a fair and impartial jury from the remaining panel members. We also bear in mind that the trial court was in the unique position of hearing the testimony of the potential jurors and gauging the sincerity of their responses in light of the publicity about the case. But the successful qualification of a jury panel is not the sole criterion in determining whether a defendant is entitled to a change of venue, since conscious or subconscious juror prejudice can affect answers obtained on voir dire. Although it was possible to select a jury whose members were not subject to a challenge for cause, Appellant was entitled to a change of venue if he could show that there were influences in the community which could affect the answers on voir dire.

Id. at *15 (citations omitted). The court of appeals determined that there are two things that distinguish this case from others in which a majority of the venire is familiar with the case. "First, the nature of the publicity is quite different since potential jurors had the opportunity to watch a videotape of the actual crime being committed. Second, a large number of the potential jurors in the instant case could not set aside their opinion. This strongly indicates that pretrial publicity resulted in actual, identifiable prejudice to Appellant." Id. at *17. Instead, the majority says that because the media coverage was accurate and objective, it was not prejudicial or inflammatory.
I agree with the holding of the court of appeals that under the unique facts of this case, there was a high probability of unfairness, making it necessary for the trial court to grant Appellant's motion to change venue in order to assure a fair and impartial trial.

Meyers, J.

Filed: May 9,2007

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