Texas Judiciary Online - HTML Opinion

^{^[1]} The facts of this case and = evidence of=20 extraneous offenses are discussed in Resendiz v. = State. 112=20 S.W.3d 541 (Tex. Crim. App. 2003) (en banc).

^{^[2]} See Angleton v. State, 971 = S.W.2d 65=20 (Tex. Crim. App. 1998) (en banc).

^{^[3]} See Yates v. State, 171 = S.W.3d 215=20 (Tex. App.CHouston [1st Dist.] 2005, pet. = ref=3Dd.); Ex parte Yates, 193 S.W.3d = 149 (Tex.=20 App.CHouston [1st Dist.] 2006, no pet.) (mem. = op.).

^{^[4]} A brief summary of events = connected with=20 Lay are addressed in In re Arthur Andersen, L.L.P. = 121 S.W.3d=20 471 (Tex. App.CHouston [14th Dist.] 2003, orig.=20 proceeding).

^{^[5]} See In re Durst, 148 = S.W.3d 496=20 (Tex. App.CHouston [14th Dist.] 2004, no pet.) = (maj. op. on=20 reh=3Dg).

^{^[6]} See Graham v. State, 3 = S.W.3d 272=20 (Tex. App.CFort Worth 1999, pet. ref=3Dd); Zamora v. State, 998 S.W.2d = 290 (Tex.=20 App.CFort Worth 1999, pet. ref=3Dd)

^{^[7]} This language is taken from the = affidavit=20 of Allen Tanner; similar language is found in the remaining=20 affidavits.

^{^[8]} We note that when deciding issues = raised=20 under both federal and state constitutional law, the Texas Supreme = Court=20 has followed varying approaches in determining which body of law = to=20 address first. In Davenport v. Garcia, the Court = stated that=20 A[b]asing decisions on the state = constitution=20 whenever possible avoids unnecessary federal review. This = not only=20 lessens federal interference into state issues, but also results = in=20 >efficient judicial = management.=3D@ 834 S.W.2d 4, 17 (Tex. 1992) = (quoting=20 Stewart G. Pollock, Adequate and Independent State Grounds as a = Means=20 of Balancing the Relationship Between State and Federal = Courts, 63 Tex. L. Rev. 977, = 984=20 (1985)). The Court continued, AThe soundest way to avoid such = unnecessary review=20 and delay for litigants is to rely on the state constitution in = the first=20 instance.@ Id. at 18. = Subsequently,=20 however, the Court has examined federal constitutional law first = if the=20 United States Supreme Court Ahas recently addressed the application = of the=20 First Amendment@ in a similar context. =20 Comm=3Dn for Lawyer Discipline v. = Benton, 980 S.W.2d 425, 429B30 (Tex. 1998); Operation=20 Rescue-Nat=3Dl v. Planned Parenthood of Houston & = Se. Tex.,=20 Inc., 975 S.W.2d 546, = 556 (Tex.=20 1998) (analyzing abortion protesters=3D First Amendment claim before Texas = constitutional=20 claim because the United States Supreme Court had recently written = an=20 opinion regarding the application of the federal constitution in = an=20 abortion protest context). Most recently, the Court has = held,=20 ANo rigid order of analysis is necessary, = despite=20 occasional language to the contrary in some of our = opinions.@ Bentley v. Bunton, 94 = S.W.3d 561,=20 579 (Tex. 2002).

^{^[9]} 218 F.3d 415 (5th Cir.=20 2000).

^{^[10]} The State alternatively advocates = a=20 Areasonable likelihood@ standard, which some courts have = applied to free=20 speech claims under the First Amendment. See, e.g., In re = Dow=20 Jones & Co., 842 F.2d 603, 606 (2d Cir. 1988); In re=20 Russell, 726 F.2d 1007, 1010 (4th Cir. 1984); United States = v.=20 Tijerina, 412 F.2d 661, 666 (10th Cir. 1969); S. Bend = Tribune v.=20 Elkhart Cir. Court, 691 N.E.2d 200, 202 (Ind. App. 1998); = Sioux=20 Falls Argus Leader v. Miller, 610 N.W.2d 76, 86 (S.D. = 2000). But=20 the Texas Court of Criminal Appeals has acknowledged that both it = and the=20 Texas Supreme Court have interpreted the Texas Constitution as = providing=20 greater protection in some instances thant does the federal=20 constitution. Ex parte Mitchell, 977 S.W.2d 575, 580 = (Tex.=20 Crim. App. 1997); see also Heitman v. State, 815 S.W.2d = 681, 690=20 (Tex. Crim. App. 1991) (quoting LeCroy v. Hanlon, 713 = S.W.2d 335,=20 338 (Tex. 1986)) (A>The federal constitution sets the floor = for=20 individual rights; state constitutions establish the = ceiling.=3D@). And the Asubstantial likelihood@ standard connotes a stronger showing = than the=20 Areasonable likelihood@ standard. Brown, 218 F.3d = at=20 427. Because, as discussed infra, the Asubstantial likelihood@ standard is the Aconstitutional minimum,@ the lower Areasonable likelihood@ does not apply.

^{^[11]} This is a lower standard than = that which=20 applies to the media. Gentile, 501 U.S. at = 1070B71, 111 S. Ct. at 2742B43.

^{^[12]} This rule is analogous to Texas=20 Disciplinary Rule of Professional Conduct = 3.07(a).

^{^[13]} Citing Landmark=20 Commc=3Dns, Inc. v.=20 Virginia, 435 U.S. 829, 838B39, 98 S. Ct. 1535, 1541B42 (1978).

^{^[14]} Quoting Richmond Newspapers, = Inc. v.=20 Virginia, 448 U.S. 555, 575, 100 S. Ct. 2814, 2826(1980).=20

^{^[15]} Quoting In re Oliver, 333 = U.S. 257,=20 270B71, 68 S. Ct. 499, 506B07 (1948).

^{^[16]} 314 U.S. 252, 62 S. Ct. 190,=20 (1941).

^{^[17]} Citing Bridges, 314 U.S. = at=20 268B69, 62 S. Ct. at 196B97.

^{^[18]} Id.

^{^[19]} 384 U.S. 333, 350, 86 S. Ct. = 1507, 1515=20 (1966).

^{^[20]} = =20 The restraint on speech is narrowly tailored to achieve = [governmental]=20 objectives. The regulation of attorneys=3D speech is limitedCit applies only to speech that is = substantially=20 likely to have a materially prejudicial effect; it is neutral as = to points=20 of view, applying equally to all attorneys participating in a = pending=20 case; and it merely postpones the attorneys=3D comments until after the trial. =

Gentile,=20 501 U.S. at 1076, 111 S. Ct. at 2745. Because relator does = not=20 specifically challenge the order as overly broad, we do not = address this=20 requirement further.

^{^[21]} Id. Relator also = argues that=20 the gag order is not the least restrictive means to fulfill the=20 government=3Ds objective. Because we conclude = that the=20 findings and evidence are insufficient to demonstrate a = substantial=20 likelihood of material prejudice, we need not address the argument = that=20 such prejudice could be averted by less restrictive means.=20

^{^[22]} We note that rRelator=3Ds counsel represented to the trial court = that a=20 defense attorney did not relay this information to the media, but = instead,=20 the information was obtained by or from a person who overheard a=20 privileged conversation between an attorney and an investigator in = a=20 courthouse hallway. We further note that the trial court = answered=20 this statement by saying, AI will take you at your word as an = officer of this=20 court, Mr. DeToto.@ The State did not controvert this = matter.

^{^[23]} Arguably, a greater threat to=20 relator=3Ds right to a fair trial may arise from = the gag=20 order because, of all the witnesses to the fight and to=20 Granillo=3Ds death, only relator is barred from = speaking to=20 the press. The order additionally expressly bars counsel for = relator=20 from publicly denying her culpability, despite the fact that=20 relator=3Ds plea of Anot guilty@ is a matter of public record. = See=20 id., cmt. 3 (A[A]n otherwise objectionable statement = may be=20 excusable if reasonably calculated to counter the unfair = prejudicial=20 effect of another public statement.@).

^{^[24]} If any prejudice resulted from = these=20 statements, one could expect that such prejudice would have made = it=20 difficult to empanel an impartial jury in the first trial. = See=20 Yount, 467 U.S. at 1032, 104 S. Ct. at 2889 (AIn this case, the extensive adverse = publicity and=20 the community=3Ds sense of outrage were at their height = prior to=20 Yount=3Ds first trial . . . .@). Here, however, the State does = not dispute=20 that of 120 venire members, only a handful of jurors were removed = for=20 cause. Cf. id. at 1029, 104 S. Ct. at 2888=20 (A[Seventy-seven percent of venire = members] admitted=20 they would carry an opinion into the jury box.@); Irvin, 366 U.S. at 727, 81 S. = Ct. at=20 1645 (268 members of a panel of 430 potential jurors excused for=20 cause). Moreover, the State = does not=20 contend (and the trial court did not find) that any excused venire = person=20 was prejudiced by extrajudicial statements by trial participants = rather=20 than by media reports of public information or of material = independently=20 obtained by journalists from other sources. =

^{^[25]} In In re Houston = Chronicle, the=20 prior restraint on speech was not the subject of a constitutional=20 challenge from any individual who was the subject of the=20 order.

^{^[26]} Relator also contends that = respondent=20 abused her discretion in excluding six affidavits which relator = offered=20 into evidence at the hearing on the gag order. The six = affidavits=20 are the affidavits the Harris County District Attorney=3Ds Office introduced in support of its = opposition=20 to the defendant=3Ds request for a change of venue in the = case of=20 State v. Slade, Cause Nos. 1121606 & 1121607 (338th = Dist. Ct.,=20 Harris County, Tex. July 16, 2007; July 17, 2007; July 31, 2007; = July 26,=20 2007; & Aug. 2, 2007). Respondent sustained the=20 State=3Ds objection that the affidavits were not = relevant=20 because they were submitted in an unrelated case on the issue of=20 venue. We conclude the affidavits were, in fact, relevant = because=20 they are material to a fact in issue, i.e., that fair and = impartial juries=20 have been seated in highly publicized cases in Harris County, and = they=20 make that fact more probable than it would be without the=20 affidavits. See Miller v. State, 36 S.W.3d 503, 507 = (Tex.=20 Crim. App. 2001). Therefore, we also conclude respondent = abused her=20 discretion in excluding these affidavits from evidence. =

^* Senior Justice J. Harvey Hudson = sitting by=20 = assignment.