Kelly v. State, 44052
| Decision Date | 28 July 1971 |
| Docket Number | No. 44052,44052 |
| Citation | 471 S.W.2d 65 |
| Parties | Emmett Julian KELLY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John W. Overton, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Robert R. Scott, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
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.
The sufficiency of the evidence is not challenged.
Eyewitnesses identified the appellant as the armed robber of Helen S. Jew, an employee of the Asia Food Market in Houston.
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.
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.
No abuse of discretion has been shown. The judgment is affirmed.
ODOM, J., not participating.
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...unless the lack of such an affidavit is sufficiently explained. (See e. g. Clanton v. State (Miss.1951), 51 So.2d 577; Kelly v. State (Tex.Cr.App.1971), 471 S.W.2d 65.) We are inclined to follow these authorities. The defendant, however, has failed to attach to his motion either of the affi......
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...witness, but also diligence as reflected in the timeliness with which the motion for continuance was presented. In Kelly v. State, 471 S.W.2d 65, 66 (Tex. Crim. App. 1971), this Court concluded that a motion for continuance based on the absence of witnesses which was filed on the day the tr......
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