Curtis v. State, 30319

Decision Date11 February 1959
Docket NumberNo. 30319,30319
Citation167 Tex.Crim. 536,321 S.W.2d 587
PartiesL. V. CURTIS, Appellant v. STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

James L. Mitchell, Dallas, for appellant.

James L. Hartsfield, County Atty., Quitman, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is robbery; the punishment, 5 years.

The evidence shows that on the day in question both the appellant and the injured party, Buck C. Bass, attended trades day in the City of Canton. After they had been together, it was agreed, according to the injured party, that they would go look at some cattle which the appellant said he had for sale. Bass left around 3 P.M. and drove to his sister's place at Edgewood where he unloaded some cattle. Appellant and a companion identified only by his first name as 'Melvin' followed. Upon their arrival at Edgewood, Bass got in the appellant's automobile and the three left for Gladewater.

Bass testified that when they left Edgewood he had $163 in his pocket and after they had gone about a half mile appellant gave him a can of beer which he drank; that he did not thereafter remember anything until they were in the edge of Gladewater coming back towards Edgewood; that as they were travelling west on Highway 80, the appellant, who was driving the automobile, turned off the highway to the right at Crow, and after driving some distance on a country road stopped and said they were out of gas; that it was dark and he went to sleep while seated alone on the back seat and the next thing he knew appellant and his companion had pulled him out of the automobile and were hitting him in the face and that while he was on the ground appellant took $155 from his shirt pocket and appellant's companion took a dollar in change from another pocket. Bass testified that he was scared and that after appellant and his companion took the money they left and he then went to a house nearby where the Sheriff was called and he was carried to the hospital for treatment of his injuries.

As a witness in his own behalf appellant admitted making the trip to Gladewater with Bass and the man named 'Melvin' and testified that on the trip Bass drank some beer and became intoxicated but was not unconscious. Appellant admitted that while returning from Gladewater he drove off the highway near Hawkins onto a country road and stopped to excuse himself. Appellant testified that after he stopped, Bass and 'Melvin' had a fight but denied that he struck Bass or robbed him of any money.

We shall discuss the contentions presented by appellant in his brief and in oral argument.

Appellant first insists that the State failed to prove venue and that the court erred in overruling his motions for instructed verdict for such reason.

On the question of venue the testimony of Bass, the injured party, shows that the offense was committed on a country road which led off of Highway 80 at Crow and then turned back east and west parallel with the highway. Sheriff Paul Usrey testified that all country roads in that area leading into Highway 80 were in Wood County. Mrs. Carl Polk, to whose residence the injured party went on the night in question after the assault, testified that the following day she and her husband found a pair of gloves, package of cigarettes, some paper, a pencil, a twenty dollar bill, fifty cent piece, and a dime on a road running east and west some two miles from her house and that the place where she found the articles was in Wood County. It was shown by the testimony that the gloves belonged to the injured party. While testifying as a witness in his own behalf appellant testified that he was familiar with the country around Crow, having once lived in the County, and he believed that where he stopped after turning off Highway 80 was in Wood County but was not sure.

Such testimony was sufficient to warrant the jury in...

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13 cases
  • McKenzie v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 20, 1981
    ...attendance as a witness." To the same effect are Barker v. State, 170 Tex.Cr.R. 226, 339 S.W.2d 674, 676 (1960); Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587, 590 (1959); see also 56 Tex.Jur.2d 599, § 261: "Counsel may comment in argument on the opposing party's failure to call as a w......
  • Lee v. State
    • United States
    • Texas Court of Appeals
    • April 28, 2000
    ...could not have been secured. Accordingly, the prosecutor's comment was not improper. Rodgers, 486 S.W.2d at 797; Curtis v. State, 167 Tex. Crim. 536, 321 S.W.2d 587, 590 (1959). We overrule Appellant's fourth Appellant's issue five raises nothing for our review, therefore, we will not addre......
  • Black v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 18, 1983
    ...either circumstantial or direct evidence. Haynes v. State, 140 Tex.Cr.R. 52, 143 S.W.2d 617 (Tex.Cr.App.1940); Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587 (Tex.Cr.App.1959); Rippee v. State, supra; Edwards v. State, supra; also Article 13.17, supra, note It has been repeatedly held t......
  • Rodgers v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 25, 1972 testify, or that by the exercise of due diligence, could not have secured his attendance as a witness. Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587 (1959); Barker v. State, 170 Tex.Cr.R. 226, 339 S.W.2d 674 (1960). See also Hines v. State, 160 Tex.Cr.R. 284, 268 S.W.2d 459 The last......
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