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Hooker v. State

621 S.W.2d 597, 1980 Tex. Crim. App. LEXIS 1262
Court of Criminal Appeals of Texas·Decided June 18, 1980·No. 59279·Published·Cited by 71 cases

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for injury to a child. The jury assessed punishment at twelve years and a $6,000.00 fine.

In his first ground of error, Hooker contends that the trial court erred in overruling his motion for a change of venue. The motion was properly supported by an affidavit signed by two persons and was denied without an evidentiary hearing. No controverting affidavits had been filed by the State.

This is the identical issue posed in Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979), where we held that it had been long established that a defendant was entitled to a change of venue as a matter of law when the State fails to challenge the motion either by controverting affidavits or by evidence presented at the hearing on the motion. The failure to grant the change of venue is reversible error. See also Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978).

The judgment is reversed and remanded.

PHILLIPS, J., not participating.

Before the court en banc.

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Hooker v. State, 621 S.W.2d 597, 1980 Tex. Crim. App. LEXIS 1262 (Tex. 1980).

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