
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00570-CR





Timothy Joe Lathrop, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF HARRIS COUNTY, 174TH JUDICIAL DISTRICT

NO. 9429377, HONORABLE SAM ROBERTSON, JUDGE PRESIDING






	Appellant Timothy Joe Lathrop appeals his conviction for aggravated kidnaping. See Tex.
Penal Code Ann. § 20.04(a)(5) (West Supp. 1998). (1)  In a joint trial with five co-defendants, a jury
convicted appellant and the other five of this offense.  The jury assessed his punishment at life imprisonment
and a fine of $10,000.  Appellant brings eleven points of error.  We will affirm his conviction.
	Appellant's conviction is based upon the abduction of a young man, Rudy Meinecke, on
December 19, 1994, in Houston, Harris County, by a group including appellant, who took the victim to
co-defendant Darrold Alexander's apartment where he was beaten,  tortured and terrorized.  The victim
was rescued by a law enforcement officer who saw a group of people, including appellant, on the street
at 3:00 a.m. carrying the unconscious victim.  The details of the offense are reviewed at length in a
companion case, McMahon v. State, Nos. 3-97-572-CR & 3-97-574-CR (Tex. App.--Austin August
13, 1998) (not designated for publication) [hereinafter McMahon]. 
	Appellant's first point of error contends that the trial court erred by refusing to hold a
hearing on his motion for change of venue.  A statute provides:

(a) A change of venue may be granted in any felony or misdemeanor case punishable by
confinement on the written motion of the defendant, supported by his own affidavit and
the affidavit of at least two credible persons, residents of the county where the prosecution
is instituted . . . .


Tex. Code Crim. Proc. Ann. art. 31.03(a) (West 1989) (emphasis added).  
	Appellant filed a written motion for change of venue, but the required supporting affidavit
by appellant is not valid.  The affidavit of appellant in the record shows that it was sworn to before his own
attorney.  It is a general rule in criminal cases that the attorney for the accused is incompetent to take
affidavits to papers, motions and other documents filed in the case.  Pratt v. State, 334 S.W.2d 295 (Tex.
Crim. App. 1960).  See Bearden v. State, 648 S.W.2d 688, 690 n.3 (Tex. Crim. App. 1983) (affidavits
notarized by counsel offering them into evidence are void); Clemons v. State, 398 S.W.2d 563, 566 (Tex.
Crim. App. 1965) (affidavit sworn to by appellant's attorney uniformly held insufficient).  The Court of
Criminal Appeals has held that an affidavit for change of venue, sworn to by the attorney for the accused,
could not be considered.  Luttrell v. State, 157 S.W.2d 157 (Tex. Crim. App. 1916).  A trial court was
held correct in overruling a motion for change of venue when it was only supported by defendant's own
affidavit taken before his own counsel.  Herrera v. State 124 S.W.2d 147, 150 (Tex. Crim. App. 1939). 
If the defendant's motion for change of venue is not in the proper form, it is not error for the trial court to
overrule it without a hearing.  Lundstrom v. State 742 S.W.2d 279, 281 (Tex. Crim. App. 1986), citing
Ward v. State, 453 S.W.2d 832 (Tex. Crim. App. 1974) (not supported by affidavits of at least two
credible persons); Donald v. State, 453 S.W.2d 825 (Tex. Crim. App. 1970) (motion not sworn).  The
most recent case found which dealt with the issue is Cover v. State, 913 S.W.2d 611, (Tex. App.--Tyler
1995, pet. ref'd).  That court noted that there was no affidavit attached to the motion for change of venue. 
The court found that the trial court "properly overruled Appellant's defective motion."  Id.  Here,
appellant's motion for change of venue is defective, and the trial court did not err in not providing a hearing
on it.  Appellant's first point of error is overruled.  
	Appellant complains of restrictions on the voir dire examination in points two through six. 
The facts and issues are identical to those in McMahon, and we overrule appellant's points two through
six as we did there.  McMahon, slip op. at 10-17.
	Appellant's seventh point of error complains of the trial court's overruling an objection to
a prosecutor's argument he claims was an impermissible statement of personal opinion.  The court properly
ruled that the comment was a permitted answer to a comment in the defense counsel's closing argument. 
We overrule point seven for the reasons set out in McMahon, slip op. at 18-20.
	In points of error eight and nine, appellant contends that the trial court erred by not
instructing the jury that Pedro Jimenez was an accomplice witness as a matter of law whose testimony
required corroboration, or, he argues in the alternative, at least the trial court should have submitted the
issue for the jury to determine whether he was an accomplice as a matter of fact.  We find no evidence to
support a charge that Jimenez was an accomplice witness.  His  knowledge of the offense, and even his
assistance in concealing evidence afterward, is not enough to make him an accomplice witness.  We
overrule points eight and nine for the reasons and on the authorities stated in the same numbered points in
McMahon, slip op. at 20-22.
	Appellant's tenth point of error argues that the trial court abused his discretion by refusing
to grant his motion to sever his prosecution from the others.  The facts and law on this point are identical
to those in the same numbered point in McMahon, slip op. at 24-26.  The trial court did not abuse its
discretion and there was no error; point of error ten is overruled.  
	Appellant contends in his eleventh point of error that the trial court erred by not submitting
an issue for the jury to decide whether appellant voluntarily released the victim in a safe place, which would
reduce the offense to a second degree felony rather that a first degree.  This point corresponds to the
eleventh point in McMahon, slip op. at 27-31. There was no evidence of a voluntary release.  We overrule
appellant's eleventh point for the same reasons we set out in McMahon.

	Having overruled appellant's points of error, we affirm the trial court's judgment.  

  
	J. Woodfin Jones, Justice
Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating
Affirmed
Filed:   August 13, 1998
Do Not Publish
1.        Amendments to this section after the commission of the offense are irrelevant to the appeal.  The
current version is cited for convenience.  


y the attorney for the accused,
could not be considered.  Luttrell v. State, 157 S.W.2d 157 (Tex. Crim. App. 1916).  A trial court was
held correct in overrul