Opinion
07-23-00252-CR
08-02-2024
KENDALL BATCHELOR, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish.
On Appeal from the 451st Judicial District Court Kendall County, Texas Trial Court No. 8946, Honorable Kirsten Cohoon, Presiding
This case is before the Court on transfer from the Fourth Court of Appeals pursuant to a docket equalization order of the Supreme Court of Texas. TEX. GOV'T CODE ANN. § 73.001.
Before PARKER and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
JUDY C. PARKER, JUSTICE
A jury convicted Kendall Batchelor, Appellant, of intoxication manslaughter. In this appeal, Appellant argues that the trial court abused its discretion in denying her motion to change venue. We affirm.
Background
On the night of June 2, 2022, after an evening out with friends, Appellant drove the wrong way on State Highway 46 and collided head-on with another vehicle. The sole occupant of the other vehicle, David Belter, was killed in the collision. Appellant was taken to the hospital, where her blood alcohol level was determined to exceed the legal limit. Appellant was charged with intoxication manslaughter.
In May of 2023, Appellant filed a motion for change of venue alleging that she could not obtain a fair and impartial trial in Kendall County due to the publicity generated about the case. Following an evidentiary hearing, the trial court denied the motion. However, the trial court assured Appellant that, "to the extent after all of that we cannot seat a jury, I will reconsider your motion ...." The case proceeded to jury trial. The jury found
Appellant guilty and sentenced her to 20 years' imprisonment in the Texas Department of Criminal Justice and a $10,000 fine. Appellant timely filed this appeal.
Analysis
In her sole issue on appeal, Appellant contends that the trial court erred in denying her motion to change venue. We review a trial court's denial of a motion to transfer venue for an abuse of discretion. Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007). We will not disturb the trial court's decision unless it falls outside the zone of reasonable disagreement. Id.
Article 31.03 of the Code of Criminal Procedure provides, in part, that a change in venue may be granted upon a defendant's written motion showing either of the following:
1. That 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; and
2. That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial.
TEX. CODE CRIM. PROC. ANN. art. 31.03(a). "The defendant seeking a change of venue bears a heavy burden to prove the existence of such prejudice in the community, that the likelihood of obtaining a fair and impartial jury is doubtful." Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim. App. 2006) (citing DeBlanc v. State, 799 S.W.2d 701, 704 (Tex. Crim. App. 1990)).
However, the mere fact of media attention and publicity do not automatically establish prejudice or require a change of venue, because jurors do not have to be in total ignorance of the facts and issues of a particular case. Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (per curiam) (en banc). Widespread publicity alone is not inherently prejudicial. Gonzalez, 222 S.W.3d at 450; see also Skilling v. United States, 561 U.S. 358, 381, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ("Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance.") (emphasis in original). A defendant seeking a change in venue
must demonstrate that the publicity about the case is pervasive, prejudicial, and inflammatory; that is, a defendant must demonstrate an "actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come."Renteria, 206 S.W.3d at 709 (quoting DeBlanc, 799 S.W.2d at 704). The two primary means of determining whether publicity is pervasive are the hearing on the motion to change venue and the voir dire process. Gonzalez, 222 S.W.3d at 449.
At the May 9, 2023 hearing on Appellant's motion to change venue, Appellant presented evidence that six news articles about the case had been published. Five of the articles appear to have been published in The Boerne Star. The accounts covered Appellant's arrest on the underlying charge, her subsequent arrest for violating her bond conditions, the denial of her request for bond reinstatement, the civil suit filed by the accident victim's parents, and the request for a change in venue. One article was published in the San Antonio Current and discussed Appellant's prior run-ins with the law. Appellant's counsel argued that the articles included information that might be excluded from trial but might nonetheless influence a potential juror's decision, such as information from Appellant's arrest warrant alleging that her blood alcohol content was 0.166 according to the hospital labs. Appellant did not offer any evidence to show when these articles were published or how wide an audience they reached.
Appellant's counsel argued that the blood alcohol content analysis from the Texas Department of Public Safety "came back much lower, at a 0.124."
Appellant also presented the testimony of one witness, private investigator Stan Ramos. Ramos testified that Appellant and this case were topics of discussion on the "Boerne Area Informed Citizens" Facebook page, which has almost 11,000 members. According to Ramos, the page reflected the sentiment that people "want to make sure [Appellant] gets punished" and had concerns that Appellant's family could "buy her out" of facing consequences. Ramos admitted that he did not know if members of the page and people making comments on the page were Kendall County residents, were adults, or were eligible to vote in Kendall County. He also acknowledged that he did not know how many people viewed the posts on the Facebook page.
At voir dire, out of 101 members on the panel, six indicated that they had already formed an opinion that they would be unable to set aside. Following the State's voir dire, 21 potential jurors were excused. Of the remaining jurors, 36 indicated that they had heard about the case and 18 indicated that they were on the Boerne Area Informed Citizens Facebook page. One of those 18 jurors was empaneled on the jury. Appellant argues that the jury panel's knowledge of the case indicates that the pretrial publicity was pervasive and that the content of the published articles and Facebook posts show that publicity was both prejudicial and inflammatory.
The record does not support the inference that these prospective jurors were excused due to the publicity related to the case. For example, one stated that she could not consider the full range of punishment and another revealed that her daughter had been killed by a drunk driver.
Based on the evidence presented at the hearing on the motion to transfer venue and the voir dire process, we conclude that the trial court did not abuse its discretion in denying Appellant's motion to transfer venue. Although many members of the panel had heard of the case, only six indicated that they had formed an opinion that they would be unable to set aside, and none of those six served on the jury. The panel's knowledge of the case does not signify that Appellant could not get a fair trial. See Skilling, 561 U.S. at 381 (juror impartiality does not require ignorance). Further, while the coverage by local media included information that Appellant found objectionable, we cannot conclude that it was inflammatory or prejudicial. See Gonzalez, 222 S.W.3d at 451 ("News stories, be it from print, radio, or television, that are accurate and objective in their coverage, are generally considered by this Court not to be prejudicial or inflammatory."). Appellant did not meet her burden to demonstrate "an actual, identifiable prejudice attributable to pretrial publicity" entitling her to a change of venue. Renteria, 206 S.W.3d at 709.
Conclusion
Having overruled Appellant's sole issue on appeal, we affirm the judgment of the trial court.