471 SW2D 65 - Kelly v. State

How this case has been cited

Cited by 14 later decisions — most recently March 2020

14 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 OPINION

DOUGLAS, Judge.

¶2 This is an appeal from a conviction before a jury for the offense of robbery by assault. The court assessed the punishment at thirty-five years.

¶3 The sufficiency of the evidence is not challenged.

¶4 Eyewitnesses identified the appellant as the armed robber of Helen S. Jew, an employee of the Asia Food Market in Houston.

¶5 *66 The sole complaint is that the court erred in overruling his motion for continuance based on the absence of witnesses. The motion for continuance was filed on March 27, 1969, the date set for trial. This does not show the diligence required to support the motion.

¶6 The motion for new trial does not contain an affidavit of an absent witness named in the motion for continuance that he would testify as alleged in the motion. A requisite is that an affidavit of a missing witness is necessary to establish abuse of judicial discretion in overruling the motion for new trial. Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495.

¶7 No abuse of discretion has been shown. The judgment is affirmed.

ODOM, J., not participating.