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NO. 10-90-097-CR

IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO

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          WINIFRED DOUGLAS ALFORD,
                                                                                            Appellant
          v.

          THE STATE OF TEXAS,
                                                                                            Appellee

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 From 249th Judicial District Court
Johnson County, Texas
Trial Court # 27108

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O P I N I O N

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          A jury convicted Appellant of the burglary of a habitation which occurred on March 3,
1989.  See Tex. Penal Code Ann. § 30.02 (a)(1).  Punishment was assessed at seven years in
prison.  Appellant complains that the court abused its discretion when it refused to grant a new
trial based on newly discovered evidence from a prison inmate which absolved him from criminal
responsibility.  We will affirm.
          At trial Appellant called as a defense witness Roosevelt Owens, who was serving a fifteen-year prison sentence for a burglary which occurred on March 13, 1989.  Owens testified as
follows:
Q  . . . Do you know anything about a burglary up around Crowley about the 3rd of March
of that year?
A  No, sir.
Q  Okay.  Did you ever talk to anybody about that burglary?
A  Yes, sir.  They asked me about it.
          Q  Who asked you about it?
A  Detectives.
Q  Okay.  And what did you tell them?
A  I don't know nothing about it. . . . 
Q  Okay.  Mrs. Riddle has told us there was a burglary at her house on March 3rd
up on -- up near Crowley, three black men.  Do you know anything about that at
all?
A  I would -- I would like not to answer that question.
Q  Why is that?
A  Because I might incriminate myself.
Q  Okay.  You feel like if you answer that question, it might lead to some sort of
criminal prosecution of you?
A  Yes, sir.
Q  Okay.  Do you know anybody -- do you know who else may have been involved
in that offense?
A  No, sir.
Q  Okay.  Was [Appellant] involved in that?
A  No, sir.  I never -- I was raised up with him, and I never knew of him
burglarizing no house.
Q  Okay.  When you were arrested back in the middle of March of last year, did
you sign a statement admitting the [March 13] burglary over off of 917?
A  Yes, sir.
Q  Okay.  Are you absolutely positive that [Appellant] had nothing to do with
either one of these burglaries?
A  No, sir.
          Q  Are you positive he didn't or positive he did?
A  I'm positive he didn't.
Q  Did not.
A  Yeah.
          Owens also testified at the hearing on the motion for a new trial that Appellant had nothing
to do with the March 3 burglary.  Owens claimed that he, Randy Lynn and Richard McKnight had
committed the burglary for which Appellant had been convicted.  The court denied the motion for
a new trial.  
          The court must grant a new trial when new evidence favorable to the accused has been
discovered since the trial.  TEX. R. APP. P. 30(b)(6).  The denial of a motion for a new trial
based on a claim of newly discovered evidence must be reviewed for an abuse of discretion.  Van
Byrd v. State, 605 S.W.2d 263, 267 (Tex. Crim. App. [Panel Op.] 1980).  When a court grants
a new trial based on newly discovered evidence the record must reflect that:
(1) the newly discovered evidence was unknown or unavailable to the movant at the
time of his trial; (2) the movant's failure to discover or obtain the evidence was not
due to a lack of diligence; (3) the new evidence is admissible and is not merely
cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is
probably true and will probably bring about a different result on another trial.

Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. 1980).
          Clearly, Owens' testimony was cumulative of his testimony at the trial.  He merely
repeated his claim that Appellant was not involved in the March 3 burglary.  Second, the probable
truth of Owens' testimony was for the court to determine.  See Van Byrd, 605 S.W.2d at  267-68. 
Owens denied at trial that he knew anything about the March 3 burglary and, at the hearing on the
motion for new trial, claimed to know all about it.  Under the circumstances, the court was faced
with Owen's inconsistent testimony.  Furthermore, Owen's testimony conflicted with the victim's
unequivocal identification of Appellant at trial as one of the burglars who committed the March
3 burglary.  For these reasons, the court did not abuse its discretion when it refused to grant a new
trial based on newly discovered evidence.  See id.  Appellant's points of error are overruled and
the judgment is affirmed.  
 
 
                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice

Before Chief Justice Thomas and
          Justice Cummings and Justice Vance
Affirmed (Justice Vance Dissenting)
Opinion delivered and filed March 28, 1991
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