Fuqua v. State

Court of Criminal Appeals of Texas

Fuqua v. State

457 S.W.2d 571, 1970 Tex. Crim. App. LEXIS 1145

CourtCourt of Criminal Appeals of Texas

DecidedSeptember 4, 1970

Docket43080

StatusPublished

Cited by7 cases

This text of 457 S.W.2d 571 (Fuqua v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fuqua v. State, 457 S.W.2d 571, 1970 Tex. Crim. App. LEXIS 1145 (Tex. 1970).

Pincite

Opinion

OPINION

MORRISON, Judge.

The offense is burglary of a private residence at night; the punishment, eight (8) years.

The sole question before this Court is whether the trial court’s denial of appellant’s motion for new trial, based on newly discovered evidence, was an abuse of discretion.

The evidence in this case centered around a stolen rifle which had been pawned by appellant. At the hearing on the motion for new trial, appellant’s brother testified that on the morning in question he had seen his uncle with a rifle similar to the one involved in the case at bar. The brother was interviewed by appellant’s attorney prior to trial, and apparently was not questioned concerning the rifle.

An accused may not secure a new trial by failing to call a witness whose identity is known, and whose knowledge of the case might have been known prior to trial in the exercise of reasonable diligence. See Hill v. State, Tex.Cr.App., 403 S.W. 2d 797; and Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612.

No reversible error appearing, the judgment is affirmed.

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