Martin v. State, No. 44185

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtODOM; MORRISON
Citation475 S.W.2d 265
PartiesFavis Clay MARTIN, Appellant, v. The STATE of Texas, Appellee.
Decision Date26 January 1972
Docket NumberNo. 44185

Page 265

475 S.W.2d 265
Favis Clay MARTIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 44185.
Court of Criminal Appeals of Texas.
Jan. 26, 1972.

Selden Hale, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Robin Green, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ON APPEALLANT'S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.

The offense is murder; punishment was assessed by a jury at life imprisonment.

The deceased, June Etta Martin, was the former wife of appellant. The record reflects that product of that marriage was one child, a son. The testimony showed that in the divorce the deceased was given custody of the son, as well as custody of her daughter by a former marriage. Appellant, believing that his former wife was not taking proper care of the boy, went to Arizona where the mother and children resided and brought his son back to Texas. Upon having kidnapping charges filed against him, by the deceased, appellant agreed to give the child back if deceased would come to Texas to get him. She complied with this request, coming to Texas accompanied by her daughter and Delbert McQueen (a friend of the daughter).

Upon their arrival in Amarillo, they telephoned appellant who invited them to his home. At appellant's house, they were informed that the boy was 'at the baby sitter's.' According to the testimony given by the daughter and McQueen, they joined appellant and his present wife in the kitchen for coffee. Suddenly appellant pulled a pistol. The deceased upset the kitchen table and ran. Appellant caught her in the living room, held her against the wall, and fired four shots at her. She broke away, ran out of the house and collapsed on the driveway. By this time appellant had emptied his pistol while shooting at her. The daughter and McQueen went to her aid, but were ordered away at gun point by the appellant.

Officer Fred J. Boyce, in answer to a disturbance call, went to appellant's house. He recognized appellant coming out of the house and said, 'Hi, Mr. Martin.' Appellant responded, 'I guess I'm the one you want; I did it. The gun's in the house on the T.V.' The appellant then stuck out his hands to be handcuffed. At this point Officer Boyce saw the deceased lying in the driveway.

Appellant pled not guilty by reason of insanity and asked for a hearing to determine his competency to stand trial. A hearing was held and the jury found appellant competent to stand trial. A second jury was empaneled to hear the trial on the merits.

By his first, fourth and supplemental contentions, appellant complains of procedural errors at the preliminary trial on the insanity issues.

In Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), this court said:

'Appellant apparently overlooks the fact that no appeal lies from a judgment rendered in a preliminary trial on the issue of insanity. Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581. See also, State v. Olsen, Tex., 360 S.W.2d 398.'

We adhere to the former holdings of this court and cases cited and hold that no appeal lies on this issue.

The first, fourth and supplemental contentions are overruled.

By his second ground of error, appellant contends that the trial court erred in admitting into evidence, over objection, photographs

Page 267

of the deceased and of the scene. He argues that 'there was absolutely no disputed fact issue' at the time at which these exhibits were admitted.

The four photographs of which complaint is made are in black and white. Two depict the living room of appellant's house as it appeared shortly after the crime, including what appear to be blood spots on the floor and furniture; one shows the deceased lying between two cars on the driveway where she fell; and the other is a close-up view showing bullet holes and coagulated blood on the deceased's face and clothing. All four were properly authenticated as being fair and accurate representations of the scenes which they depict. Fobbs v. State, 468 S.W.2d 392.

A determination as to the admissibility of photographic evidence is made upon the same basis as is a decision on the admissibility of other types of evidence and must rest largely in the discretion of the trial judge. Lanham v. State, Tex.Cr.App., 474 S.W.2d 197 (1971).

Black and white photographs of the scene of a crime are admissible as an aid to the jury in interpreting and understanding the testimony adduced at the trial. Smith v. State, Tex.Cr.App., 460 S.W.2d 143; David v. State, Tex.Cr.App., 453 S.W.2d 172; Turner v. State, Tex.Cr.App., 462 S.W.2d 9; Rivera v. State, Tex.Cr.App., 437 S.W.2d 855. The fact that blood spots are depicted does not automatically rule out their admissibility. We find nothing in the two photographs which represent the scene of the homicide in the instant case which would inflame a reasonable person sitting as a juror and no abuse of discretion by their admission. Smith v. State, supra; David v. State, supra; Kindle v. State, 162 Tex.Cr.R. 395, 285 S.W.2d 740...

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197 practice notes
  • Russell v. State, No. 60412
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 12, 1980
    ...(Tex.Cr.App.1978); Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977); Martin v. State, 475 S.W.2d 265 In the instant case, verbal descriptions of the body of the deceased and of the scene of the murder were admissible. Therefore, the trial c......
  • Smith v. State, No. 68906
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 19, 1984
    ...appellant's case, Milligan did testify that the photographs actually depicted what they purported to depict. Page 403 In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), we held "... if a verbal description of the body and the scene would be admissible, a photograph depicting the same is ......
  • Rogers v. State, No. 69598
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 3, 1989
    ...E.g., Jackson v. State, 745 S.W.2d 4, 18 (Tex.Cr.App.1988), cert. denied 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947; Martin v. State, 475 S.W.2d 265, 267 (Tex.Cr.App.1972), appeal dismissed 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312. However, to be admissible over objection, the potent......
  • Tezeno v. State, No. 44331
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1972
    ...purported to show. The State then offered the photograph in evidence, and it was admitted over appellant's objection. In Martin v. State, 475 S.W.2d 265, 267 (Tex.Cr.App.1972) this Court 'A determination as to the admissibility of photographic evidence is made upon the same basis as is a de......
  • Request a trial to view additional results
197 cases
  • Russell v. State, No. 60412
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 12, 1980
    ...(Tex.Cr.App.1978); Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977); Martin v. State, 475 S.W.2d 265 In the instant case, verbal descriptions of the body of the deceased and of the scene of the murder were admissible. Therefore, the trial c......
  • Smith v. State, No. 68906
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 19, 1984
    ...appellant's case, Milligan did testify that the photographs actually depicted what they purported to depict. Page 403 In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), we held "... if a verbal description of the body and the scene would be admissible, a photograph depicting the same is ......
  • Rogers v. State, No. 69598
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 3, 1989
    ...E.g., Jackson v. State, 745 S.W.2d 4, 18 (Tex.Cr.App.1988), cert. denied 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947; Martin v. State, 475 S.W.2d 265, 267 (Tex.Cr.App.1972), appeal dismissed 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312. However, to be admissible over objection, the potent......
  • Tezeno v. State, No. 44331
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1972
    ...purported to show. The State then offered the photograph in evidence, and it was admitted over appellant's objection. In Martin v. State, 475 S.W.2d 265, 267 (Tex.Cr.App.1972) this Court 'A determination as to the admissibility of photographic evidence is made upon the same basis as is a de......
  • Request a trial to view additional results

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