Adami v. State

• Citation: 524 S.W.2d 693
• Decision Date: 25 June 1975
• Docket Number: No. 49582,49582
• Parties: Kenneth ADAMI, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 693

524 S.W.2d 693

Kenneth ADAMI, Appellant, v. The STATE of Texas, Appellee.

No. 49582.

Court of Criminal Appeals of Texas.

June 25, 1975.

Rehearing Denied July 16, 1975.

Mann, Cronfel & Person, Nat B. King, Oscar J. Pena, Laredo, for appellant.

Charles R. Borchers, Dist. Atty., Donato D. Ramos and Stephen A. Whitworth, Asst. Dist. Attys., Laredo, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This appeal is from a conviction of murder with malice. Punishment was assessed at life.

The indictment charges that on or about November 22, 1972, in Webb County, Texas, appellant, with malice aforethought, killed Jose Alfredo Avalos by shooting him with a rifle.

Considering the evidence most favorable to the verdict and judgment, the record reflects the following:

On November 23, 1972, officers Young and Escobedo of the U.S. Border Patrol were contacted in Freer by appellant and his companion, Edgar Williams. Appellant told the officers that on the preceding day he had a break-in at his ranch house in Webb County and had shot five men 'that appeared to be Mexican aliens' with his .257 Weatherbee Magnum hunting rifle. He delivered the rifle to the officers, and volunteered to go with them to the site of the shooting. While en route he was overheard telling Williams: 'That's kind of cold blooded, but I did it and I am ready to go.'

Investigation by Young and Escobedo and other officers proved that on November 22nd five men, citizens of Mexico, who had illegally crossed the Rio Grande River into Texas several days earlier, were shot and killed while in a small house on the Adami ranch in Webb County. Jose Alfredo Avalos, the deceased named in the indictment, was one of these men, and the evidence indicated that he was the first one who was shot.

The State's evidence reflects that these men, seeking shelter from the cold, rainy weather, entered the house some time prior to the shooting, and that at the time they were shot they were in the kitchen eating tortillas and drinking cans of V8 juice which they had brought with them in packsacks. At least four of the shots were fired through a window from outside of the house, and four spent .257 magnum shells were found on the ground by the window. Two other shots were fired while the killer was inside the kitchen. Avalos was shot in the back of his head, and the top of his head was blown off. The other four were shot in varying portions of their bodies, all of which were in the posterior or back side of the mid-axillary line of the body. ¹ No firearms or other weapons were found in the house by investigating officers.

The house in which the bodies were found was pictured by State's witnesses as appearing to be an abandoned uninhabited shack, with a large amount of accumulated dirt and animal droppings on the floor and furniture, and with grass and weeds a foot and a half high growing around it, and boards nailed across the windows. A number of photographs of the exterior and interior support the testimony of State's witnesses.

Appellant testified that the house in question was his residence, and that he kept practically all of his personal belongings there, although he usually slept in a one room building on the ranch generally used as a feed house. He said that he had been deer hunting on the ranch the afternoon of November 22nd, carrying his .257 Weatherbee Magnum rifle with him. He arrived at his residence after dark, and noticed that a light was burning in the kitchen. He also saw that a board had been pried from a window, and realized that there had been a break-in. He approached closer to the window, and saw that the kitchen 'seemed to be completely filled with rough looking men who were complete strangers to me.' They appeared to be eating his food ² and rummaging around among his belongings. He testified that as he was watching them through the window one of the men saw him and threw a 'weapon' ³ with all his might at him. He stated that 'this sudden attack frightened me to the extent that I leaped backwards and immediately raised my rifle to my shoulder and at the same time, he turned toward the northwest corner of the room where I had left a loaded .22 rifle, and I shot him and he fell to the floor.' According to appellant, after he fired the first shot 'there was a wild rush toward the window . . . I felt terrified, that I was under attack' and he continued to shoot 'until there was no more sign of attack in the room . . . everything was quiet.' He then entered the house, and one of the men 'that was in there faking dead' grabbed his rifle, and 'I jerked back and fired' and also fired another shot at one man that 'attempted to leap on my back.'

The court included in his charge instructions on the law of justifiable homicide inflicted for the purpose of preventing burglary and theft at night, see Article 1222, Vernon's Ann.P.C., infra, and on the law of self-defense.

In his sixth ground of error appellant argues that the court erred in refusing to grant his motion for an instructed verdict at the close of the evidence. The motion was based on his defense of justifiable homicide under the provisions of Article 1222, V.A.P.C. ⁴

Appellant takes the position that the evidence shows As a matter of law that it reasonably appeared to him at the time of the shooting that deceased was committing burglary or theft at night, or was about to do so, and that he shot to prevent the commission of such offense or offenses. We do not agree that the evidence established this as a matter of law. See Lorraine v. State, 163 Tex.Cr.R. 555, 294 S.W.2d 842.

To commit burglary, the entry into the house must be accompanied with the intent to commit theft, or a felony. See Articles 1389, 1390, 1391, V.A.P.C. The intent with which deceased and his companions entered was a contested issue, and was not proved as a matter of law. Likewise although a fact issue may have been raised, the proof does not Conclusively show any intent to commit theft. Likewise, the evidence fails to establish Conclusively that deceeased or his companions were committing theft, or that it reasonably appeared to appellant that they were.

Appellant's defense of justifiable homicide is based on his own testimony about the events surrounding the shooting. His testimony merely raised fact issues, and the court instructed the jury on the law concerning them. See Lorraine v. State, supra.

Furthermore, it has long been the law that Article 1222, V.A.P.C., supra, and its predecessors are not applicable to cases where the killing is upon malice. It is only when the homicide is inflicted for the purpose of Preventing one of the offenses mentioned in the statute, and not where the real motive and design is to kill the deceased with malice, that one is justified under the article in taking life. McKinney v. State, 96 Tex.Cr.R. 342, 257 S.W. 258; Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279; Surges v. State,88 Tex.Cr.R. 288, 225 S.W. 1103 (on rehearing); Laws v. State, 26 Tex.App. 643, 10 S.W. 220; Gilleland v. State, 44 Tex. 356. Also see Davis v. State, Tex.Cr.App., 467 S.W.2d 457.

In Garcia, supra, the Court said:

'If the killing was upon malice, and not to prevent a theft or the consequence of theft, it would not be justified under the statute, although a theft by night was actually being committed by the deceased at the time he was killed.' Citing authorities.

Proof of the intentional shooting of deceased with a deadly weapon is sufficient to authorize a verdict of malice. Hemphill v. State, Tex.Cr.App., 505 S.W.2d 560; Newman v. State, Tex.Cr.App., 501 S.W.2d 94; Taylor v. State, Tex.Cr.App., 470 S.W.2d 693; Mendiola v. State, 158 Tex.Cr.R. 621, 259 S.W.2d 192. The jury found from the evidence that appellant acted with malice in shooting deceased.

The trial court correctly overruled appellant's motion for an instructed verdict. The sixth ground of error is overruled.

Appellant's seventh and eighth grounds of error raise the contention that the court's charge erroneously instructed the jury on justifiable homicide under the provisions of Article 1222, V.A.P.C. enumerated, supra. Appellant states in his brief as to these two grounds of error:

'The evidence with respect to appellant's defense of justifiable homicide under Art. 1222 P.C. (in effect at the time in question) is undisputed. Thus, the foregoing grounds of error present this question solely with a question of law.'

We have heretofore found that appellant's evidence is not undisputed, and that issues of fact were raised concerning the application of the statute.

The court's charge on appellant's defense that he shot deceased for the purpose of preventing burglary and theft at night properly and sufficiently explained the law as set forth in Article 1222, V.A.P.C., supra, and fully protected appellant's rights in that respect.

The seventh and eighth grounds of error are overruled.

As stated by appellant in his brief, his ninth, tenth, eleventh, twelfth and thirteenth grounds of error 'all turn on appellant's position that under the undisputed facts as presented in the court below, malice or previously formed intent or plan (1) was not present in this case which conclusively demonstrated justifiable homicide under then Article 1222, P.C., and (2) the State failed to prove malice beyond a reasonable doubt. Thus they are presented together.'

As we have previously stated, the defense of justifiable homicide was injected into the case by the testimony of appellant. The jury, as the triers of the facts, had the option of believing all of appellant's testimony, none of it, or any portion of it. Pope v. State, Tex.Cr.App., 505 S.W.2d 556.

The State's evidence presents a case of an unprovoked killing of five unarmed men by shooting them in the back portion of their heads or bodies with a high powered hunting rifle at close range. Thereafter, the appellant made...