Kelly v. State

471 S.W.2d 65 (1971)

Emmett Julian KELLY, Appellant, v. The STATE of Texas, Appellee.

No. 44052.

Court of Criminal Appeals of Texas.

July 28, 1971.

Rehearing Denied October 20, 1971.

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.

DOUGLAS, Judge.

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.

*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.

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.