Christopher v. State, 45575

• Decision Date: 17 January 1973
• Docket Number: No. 45575,45575
• Citation: 489 S.W.2d 573
• Parties: J. D. CHRISTOPHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 573

489 S.W.2d 573

J. D. CHRISTOPHER, Appellant, v. The STATE of Texas, Appellee.

No. 45575.

Court of Criminal Appeals of Texas.

Jan. 17, 1973.

Marvin C. Hanz, San Angelo, for appellant.

Frank C. Dickey, Dist. Atty., and Aaron Goldberg, Asst. Dist. Atty., San Angelo, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

JACKSON, Special Commissioner.

The appellant was convicted by a jury of theft of oil well equipment and tools over $50.00 in value, and the punishment assessed at two (2) years.

The appellant and Robert Ratliff and wife, Ruby Mae Ratliff, were stopped by City Police in San Angelo about 2:29 A.M. on July 21, 1970, because the 1963 Chevrolet station wagon being driven by appellant did not have on it a rear license plate. The license plate was detached and in the station wagon back of the driver's seat on the floor board. The officer saw what appeared to be heavy tools and numerous things 'that I didn't know what it was.' He called his sergeant, the sheriff and a ranger. The items in the car, a heavy load, proved to be from an oil lease of Tucker Well Service, and some of them bore the brand T.B.T. W.S.

About daylight, on July 21, 1970, Jimmy Tucker, alleged to be the owner, discovered that he had a rig stripped on the Williams lease in Schleicher County. This rig had been installed on that lease on July 20, 1970, and the theft occurred that night, before the appellant's apprehension at 2:29 A.M. in possession of the stolen property. Tucker identified the property as his.

When apprehended, the appellant had a pocket knife that had on the large blade 'some grease and stuff,' which the jury may have considered was on it from cutting a rubber hose. Such hose was cut when the property was stolen, and the cut hose was among the material recovered and offered in evidence. There was some defensive testimony tending to prove an alibi, but the defendant did not testify.

Appellant seeks a reversal because of the failure of the court to grant his motion for change of venue. The motion was not support by any affidavit. No evidence or proof was offered to support its averments, and its denial was not error. Holcomb v. State, Tex.Cr.App., 356 S.W.2d 932; Sheffield v. State, Tex.Cr.App., 371 S.W.2d 49, certiorari denied, 375 U.S. 833, 84 S.Ct. 45, 11 L.Ed.2d 93; Brooks v. State, Tex.Cr.App., 418 S.W.2d 835; Mankin v. State, Tex.Cr.App., 451 S.W.2d 236.

By his second contention the appellant argues that it was error for the trial court to deny his motion for continuance. The court granted his first motion, overruled his second motion, then postponed the trial for absence of counsel, then overruled his third motion, which is here involved.

The gist of his complaint is that companion cases against the Ratliffs were tried in that court the first two days of the week, and he asserts that the jury panel was prejudiced against him on that account.

Nothing in the record bears out this contention. Voir dire of the jurors does not appear for our consideration except the juror Mrs. Peterson. She testified that she had heard of the result of the other trial, but that would not influence her in any way, and she would be guided by her own...