Lewis v. State, 48057

Decision Date20 February 1974
Docket NumberNo. 48057,48057
PartiesTod Michael LEWIS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Robert D. McPherson, Pampa, for appellant.

Guy Hardin, Dist. Atty., Shamrock, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

McCLOUD, Commissioner.

This is an appeal from a conviction for murder with malice. Punishment was assessed at ninety-nine (99) years.

The State's evidence shows that around 11:00 P.M. on December 31, 1972, appellant and Rodney Thomas Macon stopped for gas at a service station in Shamrock and left the station without paying for the gas. The attendant immediately notified the police. Shortly thereafter, in response to a police radio dispatch, Deputy Sheriff Carrol Copeland stopped the automobile occupied by appellant and Macon. While Deputy Copeland was discussing the matter with the parties appellant started shooting at the officer. Deputy Copeland died as a result of the gunshot wounds. A pathologist testified that the fatal shot struck the deceased in the back at an angle which would indicate that the officer was down when struck.

Appellant did not testify or offer any evidence.

In his first ground of error appellant contends the court erred in refusing his motion for a change of venue. Appellant argues that the motion should have been granted as a matter of law because the State failed to file a controverting affidavit as required by Article 31.04, Vernon's Ann.C.C.P. The State contends appellant waived this requirement when he proceeded with a hearing on the motion and evidence was introduced, without objection, which justified the denial of the motion by the court.

In Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968) the defendant argued that the State's controverting affidavit was insufficient. This Court said:

'The trial court heard the evidence adduced by appellant in support of his motion for change of venue and which related to the means of knowledge of the compurgators and the existence of prejudice without objection, hence any insufficiency or defect in the state's controverting affidavit was not prejudicial. Davis v. State, 19 Tex.App. 201; Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416.'

The evidence introduced at the change of venue hearing was conflicting. Witnesses for both the appellant and State testified. At no time did appellant object and point out that the State had failed to file a controverting affidavit. We think appellant waived the defect and hold that the trial court did not abuse his discretion in overruling appellant's motion for a change of venue. Priest v. State, 162 Tex.Cr.R. 260, 284 S.W.2d 148 (1955); Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775 (1956); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.); Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72; 1 Branch's Ann.P.C., p. 356, § 312; McBrayer v. State, 504 S.W.2d 445, (Tex.Cr.App.1974).

Appellant next complains that the court erred in admitting photographs of the body with pointers inserted in the wounds. He argues that the pictures were inflammatory and the probative value of the pictures was not sufficient to outweigh the inflammatory aspects.

The testimony revealed that the pointers were inserted to show the angles of entry by the bullets into the body of the deceased. The State argues that the photographs were admissible to show that the deceased was apparently crawling away from appellant and such evidence showed malice and intent to kill.

This Court in Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), stated:

'We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.'

We also cite Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.); Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.); Byrd v. State, 495 S.W.2d 226 (Tex.Cr.App.); Fields v. State, 500 S.W.2d 500; Kalinec v. State, 500 S.W.2d 146 (Tex.Cr.App.). See also Harrison v. State, 501 S.W.2d 668 (Tex.Cr.App.).

We overrule appellant's second ground of error.

Appellant further contends that the testimony of the State's witness Rodney Thomas Macon, an accomplice, was not properly corroborated.

Macon testified that he and appellant were returning from California on December 31, 1972, when they stopped in Shamrock at a service station for gas. They left the station, with Macon driving, without paying for the gas. The appellant was wearing a silver type motorcycle chain belt. Macon stated they were driving a light colored tan Plymouth automobile with a black vinyl top, and at that time they had three pistols in the car, a .38 revolver, a .357 magnum and a .25 automatic. Macon testified that shortly after leaving the station a deputy sheriff stopped their car. The deputy told Macon and appellant they would have to return to Shamrock and either pay for the gas or work it out. Macon stated they were starting to get back in the car when the appellant pulled out the .25 caliber pistol and started shooting. Appellant was about a foot from the deputy when he fired the first shot which was pointed at the officer's head. The witness stated that after the first shot was fired he jumped in the front seat of the car and observed appellant chasing the officer toward the front of the car. Macon saw the officer fall and stated that appellant kept firing until his gun was empty. He testified the officer returned the fire and appellant was wounded. Appellant then got in the car and Macon drove away. Shortly thereafter he drove onto a dead-end road. At this point Macon took the .38 pistol and left the car. Appellant stayed in the car. Macon ran into a pasture and later turned himself in to the officers. While in the pasture Macon stated that he threw the pistol away and later led the officers to where it had been thrown.

Article 38.14, V.A.C.C.P., provides:

'A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to...

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17 cases
  • McManus v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 5, 1979
    ...a matter of law, he waives his right to the Per se change of venue. Puryear v. State, 510 S.W.2d 356 (Tex.Cr.App.1974); Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974); see also Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978) (footnote #9). Where the defendant, without such objection, ......
  • Freeman v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 18, 1977
    ...and the alleged defects in the State's controverting affidavit were waived. Puryear v. State, Tex.Cr.App., 510 S.W.2d 356; Lewis v. State, Tex.Cr.App., 505 S.W.2d 603; Ward v. State, Tex.Cr.App., 427 S.W.2d 876. Appellant next, in ground 29, contends that because deceased Luis Garza had not......
  • Bird v. State
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    • Texas Court of Criminal Appeals
    • May 1, 1985
    ...a matter of law he waives his right to the per se change of venue. Puryear v. State, 510 S.W.2d 356 (Tex.Cr.App.1974); Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974); see also Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978) (footnote # 9). Where the defendant, without such objection, ......
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    ...support the observations and conclusions of pathologists, or to otherwise corroborate evidence presented at trial. Lewis v. State, 505 S.W.2d 603, 604 (Tex.Crim.App.1974). Moreover, post-autopsy photographs, similar to those in this case, have been held admissible for the purpose of aiding ......
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