Gilbert Escobedo v. State

• Court: Court of Appeals of Texas
• Decided: April 12, 2005
• Docket: 07-04-00317-CR
• Status: Published

Opinion

NO. 07-04-0317-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 12, 2005 ______________________________

GILBERT ESCOBEDO,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-439,337; HON. BRADLEY UNDERWOOD, PRESIDING _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ

Appellant Gilbert Escobedo appeals from his conviction for capital murder and his

sentence of life imprisonment. The two issues before us involve whether the trial court

erred in denying his motion to change venue and by failing to afford him a hearing on the

motion. We affirm the judgment of the trial court.

The State represents in its brief that the trial court did err, but that the error was

harmless. Yet, statute requires a defendant seeking to transfer venue under art. 31.03 of

the Code of Criminal Procedure (as did appellant here) to support the motion not only with affidavits of at least two credible persons but also with the defendant’s “own affidavit.”

TEX . CODE CRIM . PROC . ANN . art. 31.03(a) (Vernon 1989). While appellant accompanied

his motion with three affidavits, none were his own. Because the motion did not satisfy the

requirements of art. 31.03(a), the trial court did not err in either its decision to deny

appellant a hearing or its decision to deny the motion itself.

Accordingly, we overrule the two points of error and affirm the judgment of the trial

court.

Brian Quinn Justice

Do not publish.