Timothy Joe Lathrop v. The State of Texas--Appeal from 174th District Court of Harris County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00570-CR
Timothy Joe Lathrop, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HARRIS COUNTY, 174TH JUDICIAL DISTRICT
NO. 9429377, HONORABLE SAM ROBERTSON, JUDGE PRESIDING

Appellant Timothy Joe Lathrop appeals his conviction for aggravated kidnaping. See Tex. Penal Code Ann. 20.04(a)(5) (West Supp. 1998). (1) In a joint trial with five co-defendants, a jury convicted appellant and the other five of this offense. The jury assessed his punishment at life imprisonment and a fine of $10,000. Appellant brings eleven points of error. We will affirm his conviction.

Appellant's conviction is based upon the abduction of a young man, Rudy Meinecke, on December 19, 1994, in Houston, Harris County, by a group including appellant, who took the victim to co-defendant Darrold Alexander's apartment where he was beaten, tortured and terrorized. The victim was rescued by a law enforcement officer who saw a group of people, including appellant, on the street at 3:00 a.m. carrying the unconscious victim. The details of the offense are reviewed at length in a companion case, McMahon v. State, Nos. 3-97-572-CR & 3-97-574-CR (Tex. App.--Austin August 13, 1998) (not designated for publication) [hereinafter McMahon].

Appellant's first point of error contends that the trial court erred by refusing to hold a hearing on his motion for change of venue. A statute provides:

 

(a) A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted . . . .

 

Tex. Code Crim. Proc. Ann. art. 31.03(a) (West 1989) (emphasis added).

Appellant filed a written motion for change of venue, but the required supporting affidavit by appellant is not valid. The affidavit of appellant in the record shows that it was sworn to before his own attorney. It is a general rule in criminal cases that the attorney for the accused is incompetent to take affidavits to papers, motions and other documents filed in the case. Pratt v. State, 334 S.W.2d 295 (Tex. Crim. App. 1960). See Bearden v. State, 648 S.W.2d 688, 690 n.3 (Tex. Crim. App. 1983) (affidavits notarized by counsel offering them into evidence are void); Clemons v. State, 398 S.W.2d 563, 566 (Tex. Crim. App. 1965) (affidavit sworn to by appellant's attorney uniformly held insufficient). The Court of Criminal Appeals has held that an affidavit for change of venue, sworn to by the attorney for the accused, could not be considered. Luttrell v. State, 157 S.W.2d 157 (Tex. Crim. App. 1916). A trial court was held correct in overruling a motion for change of venue when it was only supported by defendant's own affidavit taken before his own counsel. Herrera v. State 124 S.W.2d 147, 150 (Tex. Crim. App. 1939). If the defendant's motion for change of venue is not in the proper form, it is not error for the trial court to overrule it without a hearing. Lundstrom v. State 742 S.W.2d 279, 281 (Tex. Crim. App. 1986), citing Ward v. State, 453 S.W.2d 832 (Tex. Crim. App. 1974) (not supported by affidavits of at least two credible persons); Donald v. State, 453 S.W.2d 825 (Tex. Crim. App. 1970) (motion not sworn). The most recent case found which dealt with the issue is Cover v. State, 913 S.W.2d 611, (Tex. App.--Tyler 1995, pet. ref'd). That court noted that there was no affidavit attached to the motion for change of venue. The court found that the trial court "properly overruled Appellant's defective motion." Id. Here, appellant's motion for change of venue is defective, and the trial court did not err in not providing a hearing on it. Appellant's first point of error is overruled.

Appellant complains of restrictions on the voir dire examination in points two through six. The facts and issues are identical to those in McMahon, and we overrule appellant's points two through six as we did there. McMahon, slip op. at 10-17.

Appellant's seventh point of error complains of the trial court's overruling an objection to a prosecutor's argument he claims was an impermissible statement of personal opinion. The court properly ruled that the comment was a permitted answer to a comment in the defense counsel's closing argument. We overrule point seven for the reasons set out in McMahon, slip op. at 18-20.

In points of error eight and nine, appellant contends that the trial court erred by not instructing the jury that Pedro Jimenez was an accomplice witness as a matter of law whose testimony required corroboration, or, he argues in the alternative, at least the trial court should have submitted the issue for the jury to determine whether he was an accomplice as a matter of fact. We find no evidence to support a charge that Jimenez was an accomplice witness. His knowledge of the offense, and even his assistance in concealing evidence afterward, is not enough to make him an accomplice witness. We overrule points eight and nine for the reasons and on the authorities stated in the same numbered points in McMahon, slip op. at 20-22.

Appellant's tenth point of error argues that the trial court abused his discretion by refusing to grant his motion to sever his prosecution from the others. The facts and law on this point are identical to those in the same numbered point in McMahon, slip op. at 24-26. The trial court did not abuse its discretion and there was no error; point of error ten is overruled.

Appellant contends in his eleventh point of error that the trial court erred by not submitting an issue for the jury to decide whether appellant voluntarily released the victim in a safe place, which would reduce the offense to a second degree felony rather that a first degree. This point corresponds to the eleventh point in McMahon, slip op. at 27-31. There was no evidence of a voluntary release. We overrule appellant's eleventh point for the same reasons we set out in McMahon.

 

Having overruled appellant's points of error, we affirm the trial court's judgment.

 

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating

Affirmed

Filed: August 13, 1998

Do Not Publish

1. Amendments to this section after the commission of the offense are irrelevant to the appeal. The current version is cited for convenience.

y the attorney for the accused, could not be considered. Luttrell v. State, 157 S.W.2d 157 (Tex. Crim. App. 1916). A trial court was held correct in overrul