Powell v. State

898 S.W.2d 821, 1994 WL 665578
Court of Criminal Appeals of Texas·Decided April 12, 1995·No. 71270·Published·Cited by 177 cases

Opinions

OPINION

CAMPBELL, Judge.

At a trial held in the 1st District Court of Newton County in May 1991, a jury found appellant, James Rexford Powell, guilty of capital murder. See Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant’s trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b),1 and the trial court sentenced appellant to death. Direct appeal to this Court was automatic under Article 37.071(h). We now affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence at trial established that on October 6, 1990, appellant abducted the victim, a ten-year-old girl, from an antique mall in Jefferson County. Appellant then strangled the victim wMe in the course of sexually assaulting her. The victim’s body was discovered later that day in Newton County. She was found with her hands tied together and a rope tied tightly around her neck, lying face down in a mud puddle. Semen was found in her vaginal cavity. After several witnesses identified appellant’s motor home as having been in the vicinity of the place where the victim’s body was found, appellant was arrested at his home in Orange County. Appellant does not challenge the sufficiency of the evidence supporting the finding of guilt or the assessment of punishment.

In ten points of error, appellant argues: that a prosecutor serving as a special assistant district attorney in Newton County in this case should have been disqualified; that appellant should have received a change of venue from Newton County; that evidence seized from appellant’s motor home in Orange County, pursuant to a search warrant issued in Jefferson County, should have been suppressed; that the trial court abused its discretion in allowing testimony concerning DNA evidence from a witness who was not trained in population genetics and who lacked knowledge of a computer program which produced the evidence on which she based her testimony; and that the trial court abused its discretion in allowing evidence at the punishment phase concerning the subject matter of a prior criminal trial in which appellant was acquitted.

In points of error five and six, appellant argues that the trial court erred in refusing to disqualify Paul McWilliams, a special prosecutor for Newton County in this case. Appellant contends that McWilliams should have been disqualified under either of two provisions of the Texas Constitution.

The first such provision, Article 16, § 14, states, in relevant part, that “all district or county officers [shall reside] within their districts or counties.” Appellant argues that assistant district attorneys are district officers, pursuant to Bighorn v. State, 141 Tex. Crim. 332, 148 S.W.2d 835 (1941). Appellant further argues that McWilliams was not qualified to serve as a prosecutor in the 1st District Court, since he did not reside within the 1st Judicial District.

The second provision of the Texas Constitution cited by appellant, Article 16, § 40, states, in relevant part, that “[n]o person shall hold or exercise at the same time, more than one civil office of emolument.” Appel[825] lant argues that the position of assistant district attorney is a “civil office of emolument,” within the ambit of Article 16, § 40, and cites as authority the case of Irwin v. State, 147 Tex.Crim. 6, 177 S.W.2d 970 (1944). Appellant argues that McWilliams was not qualified to serve as an assistant district attorney in Newton County because at the time McWilliams participated in appellant’s trial, he was employed as an assistant district attorney in Jefferson County.2

The applicability of the constitutional provisions cited by appellant turn on whether McWilliams, acting as an assistant district attorney in Newton County, was an “officer” or an “employee.” In Aldine I.S.D. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955), the Texas Supreme Court explained that “the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.” See also 67 C.J.S. Officers and Public Employees § 8(b) (1978).

An assistant district attorney acts subject to the control and supervision of the district attorney. In our view, an assistant district attorney is not a public officer, but rather a public employee. Therefore, the constitutional provisions cited by appellant are inapplicable to the facts of this case.

The cases which appellant cites, Bigham and Irwin, are not controlling. In Bigham, this Court determined that a deputy supervisor of the oil and gas division of the Railroad Commission was an “officer” within the context of a statute making it illegal for an “officer” to accept a bribe. Bigham is distinguishable from the instant ease, in that Big-ham concerned the meaning of the term “officer” within the context of the bribery statute, as opposed to the constitution.

In Irwin, this Court addressed how one becomes a de facto officer for Article 16, Section 40 purposes. In that ease, two Houston police officers had executed a search warrant by acting as deputy sheriffs. Irwin, 177 S.W.2d at 972. Because they did not continuously exercise the duties of deputy sheriffs, but only used those positions to execute a single search warrant, this Court held that they were not de facto officers and thereby avoided the constitutional issue over their capacities as police officers and deputy sheriffs that could have arisen because of Section 40. Id. at 974.

This case is easily distinguished from Irwin. McWilliams, who served as an assistant district attorney for Jefferson and Newton counties, acted as a state employee and not as a de facto officer for both counties. Appellant’s reliance on Irwin is therefore wholly misplaced. Points of error five and six are overruled.

In point of error ten, appellant argues that the trial court abused its discretion in refusing to grant his motion for change of venue. Appellant argues that he could not get a fair trial in Newton County due to pretrial publicity. Appellant makes this argument pursuant to the Sixth Amendment to the United States Constitution, Article 1, § 10 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.

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Powell v. State, 898 S.W.2d 821, 1994 WL 665578 (Tex. 1995).

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