Stapleton v. State, 54499
| Decision Date | 10 May 1978 |
| Docket Number | No. 1,No. 54499,54499,1 |
| Citation | 565 S.W.2d 532 |
| Parties | J. H. Velton STAPLETON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Robert S. Williams, Fort Worth, for appellant.
Charles F. Campbell, Jr., Dist. Atty., Hillsboro, for the State.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
J. H. Stapleton appeals from his conviction for the offense of murder. Punishment was assessed by the jury at life.
Appellant, among other things, complains of the court's denial of his uncontroverted motion for change of venue.
Briefly summarized, the record shows that on February 7, 1976, appellant was at the residence of Ira Lane in Blum. With appellant were his wife and two teenaged sons. A number of other persons were present at the Lane home, including the deceased and the deceased's mother, brother, sisters and grandmother. An argument ensued between appellant and several others, after which appellant went out of the house and retrieved a rifle from his pickup truck. The witnesses heard a gunshot and saw the deceased, ten-year-old Susan Rene Williams, lying dead on the sidewalk outside the Lane house. Appellant stood in close proximity to her holding a "smoking" rifle in his hands.
Appellant complains of the court's denial of his application for change of venue which the State concedes was never controverted. Appellant's motion for change of venue was drafted in accordance with Article 31.03, V.A.C.C.P. It was supported by the affidavits of two compurgators and was filed prior to the parties' announcing ready for trial. He relies upon Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973), and Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967), for the proposition that under such circumstances it was error as a matter of law for the court to deny the application.
In Wall, this Court held that the defendant's motion for change of venue was erroneously denied because it remained uncontroverted by the State and because there was no hearing on the motion. Hence, the trial court had no basis for overruling an uncontroverted motion drafted in compliance with Article 31.03, supra.
Article 31.04, V.A.C.C.P., provides:
No evidence was...
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McManus v. State
...no controverting affidavit is filed by the State, the defendant is entitled to a change of venue As a matter of law. Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978); Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978). The reason that the defendant is entitled to this change as a matte......
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Fields v. State
...on the motion. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979); Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978); Durrough v. State, 562 S.W.2d 488 The State argues that the appellant waived his right to pursue this ground of error b......
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Bird v. State
...and Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). See also Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978); Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978). When appellant's motion for change of venue was filed, it was not supported by affidavits as required. See Article 31.03, s......
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Taylor v. State
...of such evidence, a fact issue was then raised which required a decision by the trial court. Cooks, 844 S.W.2d at 730; see Stapleton v. State, 565 S.W.2d 532 (Tex.Crim.App. [Panel Op.] The presentation of an application for change of venue, properly verified, makes it incumbent upon the tri......