Bosquez v. State, 29590

• Decision Date: 19 March 1958
• Docket Number: No. 29590,29590
• Citation: 311 S.W.2d 855,166 Tex.Crim. 147
• Parties: Jesus Pena BOSQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

311 S.W.2d 855

166 Tex.Crim. 147

Jesus Pena BOSQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 29590.

Court of Criminal Appeals of Texas.

March 19, 1958.

Tafolla & Tafolla by James Tafolla, Jr., San Antonia, for appellant.

E. James Kazen, Dist. Atty., Laredo, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is murder without malice, under Art. 802c Vernon's Ann.P.C.; the punishment, two years.

Juanita Vargas was killed as the result of a head on collision between two Chevrolet automobiles; a 1948 model in which she was riding with her husband and four children, and a 1953 model traveling in the opposite direction on the highway, occupied by two men.

The sufficiency of the evidence to establish the corpus delicti is challenged.

Appellant's confession was introduced which, omitting the warning, reads:

'My name is Jesus Pena Bosquez. I am 24 years of age. I live in San Antonio, Texas, now.

'On September 4, 1955, about 4:30 p. m. I was driving a 1953 Chevrolet automobile on Highway 83 in Dimmit County, Texas. I was going towards Carrizo Springs from Crystal City. I had been drinking beer that afternoon in Asherton.

'While I was driving the 1953 Chevrolet in Dimmit County on Highway 83, I was in a collision with another car. As a result of said collision I know that a boy that was riding as a passenger with me by the name of Hermelegildo Gutierrez was killed and also a lady the name of Juanita Vargas was killed.'

The dead body of Hermelegildo Gutierrez was found in the borrow ditch on the east side of the highway at the scene of the collision. The investigating officer testified without objection that Gutierrez was riding in the car with Pena, the defendant.

There was ample proof of appellant's intoxication, including proof of alcoholic concentration of .21 per cent alcohol by weight in his blood that was tested.

And it was established that Juanita Vargas died as a result of the collision after she had been taken to the hospital. Appellant was also taken to the same hospital.

Appellant took the witness stand in his own behalf, having filed an application for suspended sentence, and testified in part on direct examination: 'If this jury should find you guilty and should assess to you a suspended sentence, what statement would you care to make to this jury about whether or not you would ever violate the law again? A. Well, if I get another chance I will be a good citizen.'

As a witiness in his own behalf appellant did not deny that he was driving the car in which Gutierrez was riding at the time of the collision, which resulted in the death of Gutierrez and Mrs. Vargas. He did not deny his intoxication or in any way question the State's proof on either the issue of intoxication or his being the driver of the car involved in the fatal accident.

The rule here applicable is thus stated in Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989, 996, and quoted in Whitaker v. State, 160 Tex.Cr.R. 271, 268 S.W.2d 172, 178; citing also Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559:

"A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant's guilt in the minds of a jury beyond a reasonable doubt.

"Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. 'Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.' 3 Am. & Eng. Enc.Law p. 447. We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti, and in aid thereto use (the) confession of the appellant.'

'The Kugadt case has been looked upon as the leading authority relative to the doctrine that in establishment of the corpus delicti, the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence.'

The judgment is affirmed.

DAVIDSON, Judge (dissenting).

After submission, this case was referred by the court to Commissioner Dice for the drafting of an opinion therein.

Commissioner Dice concluded that the facts were insufficient to support the conviction and drafted the following opinion reflecting that view and recommending its adoption by the court.

The majority of the court rejected and refused to agree with that opinion.

I was then and am now of the opinion that Commissioner Dice correctly decided the case, and I have adopted his opinion as my dissenting opinion.

The opinion reads as follows:

'Appellant was convicted, under Art. 802c, Vernon's P.C., of killing Juanita Guerrero Vargas by accident or...