Roberts v. State, 39278
| Decision Date | 16 February 1966 |
| Docket Number | No. 39278,39278 |
| Citation | 400 S.W.2d 903 |
| Parties | Eddie ROBERTS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
W. T. Wood, Jr., Gilbert I. Low, Beaumont, for appellant.
W. C. Lindsey, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State's Atty., Austin, for the State
The offense is felony theft with two prior convictions for non-capital felonies alleged for enhancement; the punishment, life.
The State's proof established and appellant testified that he purchased a 1957 De Soto automobile in Chicago. In paying for th same, part in cash and part in a worthless check, he used the operator's license belonging to one Billy Newton as identification in order to secure Illinois license plates. Appellant was arrested three months later in Fort Worth seated in a 1957 Chevrolet which had the Illinois license plates for the De Soto attached thereto. Newton testified that he had lost his operator's license, as well as his billfold and all its contents, in a Fort Worth Bar some time prior to the day in question.
It was further shown that the owner of the Chevrolet left it at a filling station in Beaumont for servicing and that when he came to get it after the filling station had closed, it was missing, and the De Soto in question without license plates was found in its place. He later identified his Chevrolet in the custody of the Fort Worth Police.
The prior convictions were established, and appellant admitted that he had served the consecutive sentences therein alleged, as well as other felony sentences.
Appellant's first contention is that a variance exists between the allegation in the indictment that he stole the Chevrolet from its owner and the proof, which showed that the filling station operator had possession thereof at the time of the theft. We do not agree and have concluded that Thomas v. State, 80 Tex.Cr.R. 282, 203 S.W. 773, and Emerson v. State, 33 Tex.Cr.R. 89, 25 S.W. 289, support the State's contention that possession was properly alleged in the real owner.
Appellant's testimony clearly eliminates the question of the State's failure to prove the sequence of the prior convictions.
There is no merit in appellant's contention that he should have been served with copies of the prison records concerning the prior convictions prior to trial. Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154; Turley v. State, 168 Tex.Cr.R. 363, ...
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...and photographs, were admissible though not filed among the papers and no copies were furnished appellant or his counsel. Roberts v. State, Tex.Cr.App. 400 S.W.2d 903.' It is true that the indictment in Trussell did not allege prior convictions while the indictment in the cited case of Robe......
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