Scott v. State

• Decision Date: 29 June 1971
• Docket Number: No. 43709,43709
• Citation: 471 S.W.2d 379
• Parties: Julius SCOTT, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 379

471 S.W.2d 379

Julius SCOTT, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43709.

Court of Criminal Appeals of Texas.

June 29, 1971.

Rehearing Denied Oct. 26, 1971.

Donald Eastland, William L. Fly, Hillsboro, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder where the punishment was assessed by the jury at 101 years.

Initially, the appellant contends that the trial court erred in failing to change venue on its own motion.

The appellant filed a suggestion that the court change venue on its own motion. The same was overruled by the court 'subject to the right of Defendant to renew said suggestion upon examination of jury panel.'

Apparently about the same time the appellant filed his own motion for change of venue. Such motion was not supported by the affidavit of at least two credible persons, residents of the county where the prosecution was instituted, as required by Article 31.03, Vernon's Ann.C.C.P. See Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728, 733; Stuart v. State, Tex.Cr.App., 456 S.W.2d 129.

Such motion was overruled 'after hearing argument of counsel' 'subject to the right of the Defendant to renew said motion upon examination of the jury panel.'

The voir dire examination of the jury panel is not in the record before us. If the appellant renewed his 'suggestion' or 'motion' during the voir dire examination it is not in the appellate record. By a formal bill of exception it is shown that 60 jurors out of 126 jurors examined before the completion of the jury were excused after they expressed an opinion as to the guilt or innocence of the accused (See Article 35.16(a)(10), V.A.C.C.P.) and that the State exercised two peremptory challenges and the defense exercised 15 such challenges. There is no showing that any juror who had formed an opinion as to the appellant's guilt or innocence served on the jury. See Cotten v. State, Tex.Cr.App., 406 S.W.2d 452.

Attached to the record are several newspaper articles concerning the alleged offense, the apprehension of the appellant, the return of the indictment, etc. Just when these newspaper clippings were made a part of the record is not clear.

The new accounts attached appear to be fair, non-inflammatory, and apparently published for the purpose of informing the public of current events. See Taylor v. State, Tex.Cr.App., 420 S.W.2d 601; Wallace v. State, Tex.Cr.App., 458 S.W.2d 67. Further, the circulation figures of the newspapers in Hill County were not shown.

It has been held that newspaper publicity alone does not establish prejudice or require the change of venue. Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Jones v. State, 240 S.W.2d 771; Wallace v. State, supra; 16 Tex.Jur.2d, Criminal Law, Sec. 246, p. 398. Even if it can be argued that the newspaper clippings were timely introduced and brought to the attention of the trial court, the appellant did not go further and show by reason thereof or by other factors there had been created in the public mind so great a prejudice as would prevent him from receiving a fair trial. Wallace v. State, supra.

We cannot agree, in light of the record before us, that the trial court abused its discretion in refusing to change venue on its motion and that the appellant was denied due process of law by such action.

Ground of error #1 is overruled.

Next appellant contends the evidence is insufficient to corroborate the testimony of the accomplice witness, L. C. Scott. See Article 38.14, V.A.C.C.P.

The record reflects that Clyde Phillips, owner of the Phillips Grocery Store in Hillsboro, was found shot in the head lying on the floor of his store shortly before 5 p.m. on December 11, 1969, by Gene Thompson. ¹ The police were called. The cause of death was shown to be a gunshot wound of the head.

L. C. Scott, the 17 year old brother of the appellant, testified fully as to his and the appellant's participation in the robbery and murder of Phillips. He related that he accompanied the appellant to the store; that appellant told him that he planned to rob Phillips; that after the appellant asked Phillips for 'hair tonic or something' the appellant pulled a gun and made Phillips kneel on the floor at which time Phillips asked the appellant to take the money but not to kill him.

L. C. Scott then related he walked to the door of the store and just as he got outside he heard a shot and later a second shot; that appellant joined him and subsequently he received $10.00 from the appellant.

Mrs. Lenora Radke testified that at 4:45 p.m. on the date in question she had parked her car outside the Phillips store while her sister-in-law, Mrs. Annie Radke, went into the store. She observed two boys outside the store and described their clothing. Annie Radke testified she saw the appellant outside the store at approximately 4:45 p.m. on the occasion in question.

JoAnn Goley testified that on the occasion in question she saw two men who approached the Phillips Grocery, hesitate, walk away from the store, then turn around and come back and enter the store. She identified the appellant as one of the two men.

Mrs. Rose Polk testified she stopped at the Phillips store sometime after 4 p.m. on the day in question and saw the appellant and his brother, both of whom she saw on the sidewalk near the store. Kazel Collins also testified she saw the appellant and his brother near the store on the date in question.

The appellant offered the deposition of Mrs. Maude Beavers, 83, who lived across the street from the store. She related that at the time in question she was raking leaves in her yard when she heard two shots and then saw two boys run from the Phillips Grocery, and shortly thereafter Gene Thompson 'came up.'

Sheriff Brooks of Hill County testified that two days after the alleged offense he was responding to a disturbance call at Itasca when he passed the appellant going in the opposite direction. They both stopped. The appellant surrendered to the sheriff a gun he had. ² The ballistics test run at the Department of Public Safety revealed that the slug removed from the deceased had been fired from the weapon surrendered to the sheriff by the appellant.

Vonsell Johnson testified he had seen the pistol in question in possession of the appellant, who had told him of the murder of Clyde Phillips but that he 'didn't believe it.'

There was other evidence as to the appellant's possession of the pistol which was clearly identified as the murder weapon.

In Edwards v. State, Tex.Cr.App., 427 S.W.2d 629, 632, this Court recited the provisions of Article 38.14, V.A.C.C.P., and then said:

'The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.

'In Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422, this Court said:

"The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be 'other evidence tending to connect the defendant with offense committed.' * * * Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied.' (Collating numerous Texas cases) See also Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116; Barnett V. State, 163 Tex.Cr.R. 270, 290 S.W.2d 234.

'In Cawley v. State, Tex.Cr.App., 310 S.W.2d 340, this Court quoted with approval portions of 22 C.J.S. Criminal Law § 812, pp. 1404 and 1405 (revised as 23 C.J.S. Criminal Law § 812(4) f., p. 118) regarding the law of corroboration of accomplice witnesses. That quotation more fully reads as follows:

"(P)roof that accused was at or Near the scene of the crime at or about the time of its commission is admissible in corroboration of the testimony of the accomplice, and...