

 
 No. 04-96-00565-CR 
 
 Elliott Manuel SILVA,
          Appellant
 
                     v.
 
 The STATE of Texas,
           Appellee
 
 From the 216th Judicial District,
Kerr County, Texas
 Trial Court No. A96-28
        Honorable Stephen B. Ables,
Judge Presiding
 
Opinion by: Alma L.
López, Justice
 
Sitting:  Phil
Hardberger, Chief Justice
Alma L. López, Justice
Karen
Angelini, Justice
 
Delivered and Filed: July 11, 2001
 
AFFIRMED
Our
opinion issued May 9, 2001, is withdrawn. Elliott Manuel Silva appealed his
conviction of aggravated robbery, complaining that the trial court abused its
discretion and denied him due process of law by failing to afford him a
pretrial hearing to present evidence in support of his motion to change venue.
The State filed a petition for discretionary review. After reconsideration and
upon conducting a harm analysis, we grant the relief requested by the State and
affirm Silva=s conviction.




Procedural
History
On June
19, 1996, Silva pled guilty to the offense of aggravated robbery. A jury
sentenced Silva to life imprisonment and fined him $10,000.  On September 17, 1997, we issued an opinion
which reversed the trial court=s judgment and remanded the cause for further proceedings. That opinion
was withdrawn and superseded on denial of rehearing by Silva v. State, 986 S.W.2d 29
(Tex. App.─San Antonio 1998, judgm=t vacated).  On
June 28, 2000, the Texas Court of Criminal Appeals vacated our judgment  and remanded the cause for reconsideration
in light of its decision in Young v. State, 8 S.W.3d 656 (Tex. Crim.
App. 2000). See Silva v. State, No. 1922-98 (Tex. Crim. App. June 28,
2000). On May 9, 2001, we
rendered an opinion and again reversed the trial court=s judgment. See Silva v. State, No.
04-96-00565-CR,  2001 WL 487207 (Tex.
App.─San Antonio May 9,
2001, pet. filed). The State
then filed a petition for discretionary review, asserting that we erred by
failing to conduct a harmless error review in determining that the trial court
committed error in denying Silva=s motion to change venue.
Change
of Venue 




The United
States Constitution and the Texas Constitution provide that the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed.  U.S.
Const. art. III, ' 1, cl. 3;
U.S. Const. amend. VI; Tex.
Const. art. I, ' 10; Tex. Crim.
Proc. Code Ann. '1.05 (Vernon 1989).  Furthermore, the Fourteenth Amendment commands that no State
shall deprive any person of life, liberty, or property without due process of
law.  U.S.
Const. amend. XIV.  In satisfying an accused=s constitutional rights, a change of venue
may be granted in any felony or misdemeanor case on the written motion of the
defendant, supported by his own affidavit and the affidavit of at least two
credible persons who are residents of the county where the prosecution is
instituted if there exists in the county where the prosecution is commenced so
great a prejudice against him that he cannot obtain a fair and impartial trial,
the truth and sufficiency of which the court shall determine.  Tex.
Const. art. III, ' 45; Tex.
Crim. Proc. Code. Ann ' 31.03(a)(1).  In addition, the
credibility of the persons making the affidavit for change of venue, or their
means of knowledge, may be attacked by the affidavit of a credible person; and
the issue thus formed shall be tried by the judge, and the motion granted or
refused, as the law and facts shall warrant. Tex.
Crim. Proc. Code. Ann ' 31.04.  
Due to the
publicity surrounding Silva=s trial, he timely filed a written motion requesting a change of venue.
The record on appeal reveals that Silva was prepared to present affidavits from
two credible residents of Kerr County stating that he could not obtain a fair
and impartial trial in Kerr County. The record further reveals that when the
motion to change venue was called up at the pretrial hearing, the State then
bench-filed controverting affidavits. 
Once Silva
made his offer of proof with affidavits filed in support of his motion for
change of venue, the filing of controverting affidavits by the State Ajoined the
issues@ and thus
required the trial court to resolve this preliminary question. See Henley v.
State, 576 S.W.2d 66, 72
(Tex. Crim. App. 1978). In other words, after the State introduced controverting
affidavits, Silva was then entitled to an evidentiary hearing so that the court
could  ascertain the Atruth and
sufficiency@ of the
matter. See Henley, 576 S.W.2d at 71-72.




The dictates of due process and article
31.03 necessitate that a defendant=s right to an impartial jury and fair
trial be protected, in the first instance, by the trial court. See Henley,
576 S.W.2d at 73. Yet, the
trial judge at the pretrial hearing stated that Ait is the court=s intention to carry Silva=s motion for change of venue to see whether anybody knows about the
case and if an impartial jury can be picked.@  Silva=s trial counsel expressed that A at a minimum, he would like to have a
hearing outside the jury=s presence to present evidence which would show that Silva could not
obtain a fair trial in Kerr County.@  Silva=s trial counsel objected to the fact that no
ruling was made at that time, and further stated that ASilva had a right to present evidence of the
numerous mentions he had received in the newspaper over the past couple of
weeks, as well as TV coverage, and that a ruling on the motion should be made
before voir dire.@   The trial judge then announced that he was
going to withhold his ruling on the motion to transfer venue in order to see if
anybody recognized Silva, his name, or his appearance.  The trial judge further stated that Aif nobody connects him up with what happened,
at that point I=ll call you up to the bench and give you a
ruling on the motion to transfer venue.@ After voir dire was concluded, the trial judge called Silva=s trial counsel up to the bench and declared Ain regard to the transfer of venue motion, in
light of the response that only two or three people recognized Silva, I=m going to deny your motion to transfer
venue.@  




Even
though only two or three jurors stated that they recognized Silva, he was
nonetheless entitled to an evidentiary hearing to show that there were
influences in the community which could affect the answers
on voir dire, or the testimony of witnesses at trial or that for any other
reason a fair and impartial trial could not be had in Kerr County.  See Henley, 576 S.W.
2d at 72.  It is
apparent from the record that the trial court predicated its denial of Silva=s motion
solely upon the successful qualification of a jury panel and thus failed to
comport with statutory procedure.  Because Silva had complied
with article 31.03's requirements and was prepared to making such a showing,
the trial judge=s refusal to grant Silva an evidentiary
hearing to introduce evidence in support of his motion for a change of venue Aprecluded a determination, as contemplated by
our law, of community attitude toward him and constituted a deprivation of due
process.@  See
id. at 73; O=Brient v. State, 588 S.W.2d 940,
942 (Tex. Crim. App.1979).  Thus, when an issue as to the propriety of
venue is raised under articles 31.03 and 31.04, we hold that it is to be
resolved only after a pretrial evidentiary hearing. The failure to do so is error.
Harmless
Error Review




The Texas
Court of Criminal Appeals has held that all errors, with the exception of
certain federal constitutional errors labeled as Astructural,@ are
subject to a harmless error analysis.[1]  See Cain v. State, 947 S.W.2d
262, 264 (Tex. Crim. App. 1997) (superseded by statute on other grounds).  The issue raised in Silva=s appeal has not been labeled a Astructural@ error, and thus we must review the error accordingly. Silva=s right to a fair trial by an impartial jury
is of constitutional dimension, and the question of change of venue
certainly implicated Silva=s constitutional rights. 
See Adami v. State, 524 S.W.2d 693, 703 (Tex. Crim. App. 1975).  And if the
appellate record in a criminal case reveals constitutional error that is
subject to the harmless error review, we must reverse a judgment of conviction
or punishment unless we determine beyond a reasonable doubt that the error did
not contribute to the conviction or punishment. Tex. R. App. P.44.2(a).  The record on appeal reveals
that only two or three potential jurors recognized Silva and they were
immediately  excused from service.  Moreover, the record indicates that the
empaneled jury did not know Silva or have knowledge of his alleged crimes by
way of television coverage or newspaper reports. Thus, we believe that the
trial court=s error in failing to afford Silva a hearing
in which to present evidence concerning his motion to change venue did not
contribute to Silva=s
judgment of punishment.  Therefore, we affirm the jury=s verdict
of guilt and sustain Silva=s conviction.
 
Alma L. López, Justice
 
Do Not Publish
 




 
                      




[1]AStructural@ errors are constitutional
violations affecting the Aframework within which the
trial proceeds, rather than simply an error in the trial process itself.@ See Linton v. State, 15
S.W.3d 615, 620 (Tex. App.─Houston
[14th  Dist.], 2000).
Structural errors include: the total deprivation of the right to counsel at
trial; a judge who was not impartial; unlawful exclusion of members of the
defendant=s race from a grand jury;
and the right to self-representation a trial. 
See Arizona v. Fulminate, 499 U.S. 279, 309-10 (1991). 


