Chavira v. State

Decision Date26 November 1958
Docket NumberNo. 30194,30194
PartiesErnesto CHAVIRA, Appellant, v. STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

William C. McDonald, San Angelo, for appellant.

Justin A. Kever, Dist. Atty., San Angelo, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder with malice; the punishment, life imprisonment.

The sufficiency of the evidence to sustain the conviction is challenged.

Gilberto Gandar, called as a witness by the State, testified that on the night of the homicide he first saw the appellant in Vicente's place in the City of Sonora. While he was in the place appellant came in and pulled a six-shooter. Around 10:30 P.M., at appellant's suggestion, the two went to another place where appellant gave him the pistol but returned in about three minutes and got it from him. Appellant then went outside and had some trouble with four boys from El Dorado and engaged in a fight with one of them during which time a pistol shot was heard. At appellant's request the witness then helped appellant put the boy in a Ford convertible automobile that he was driving and then drove out on the old El Dorado road where appellant put the boy out of the car. Appellant then asked the witness to take him to El Dorado which he agreed to do. As they were driving to El Dorado and were about five miles out of Sonora appellant told him that he 'was coming down to find Richard to kill him' and 'that Richard had been up there looking for him'; that when they got to El Dorado and had driven through the main part of town appellant told him to stop at a house where he saw a light as he was going to ask where a certain party lived; that he stopped the car and appellant got out, went to the house, returned to the car and told him to back up; that he backed the car up in front of another house and appellant got out and went to the door; that he then heard a shot and looked to see a man lying down inside the door; that appellant returned to the car and said, 'Let's go pretty quick, I have already killed him'; that they then drove out on the highway towards Sonora and about six miles out of town at appellant's request he stopped the car and appellant got out and hid the pistol. Gandar testified that later in company with the Sheriff he went to the place and found the pistol which appellant hid and had used on the night of the homicide.

The pistol containing four live cartridges and two empty shells was admitted in evidence as State's Exhibit No. 1 after being identified by Sheriff Edmiston as the pistol and shells which he found out on the Sonora highway after the homicide while in company with the witness Gandar. The pistol was also identified by the witness Guy Rodriguez as the same pistol which appellant had in his hand in Sonora on the night in question.

Pete Torres, who lived across the street and a half block from the home of the deceased, testified that on the night of the homicide he went to bed about 8:00 P.M. and after midnight woke up and went outside to a restroom; that he saw someone standing in front of his house who asked 'if I knew where Richard lived'; that he gave him the directions and the man returned to a Ford automobile parked in front of the house and the witness went inside the house; that in a short time he heard a shot and later saw a car pass in front of his house from the direction of the deceased's home; that he then went to the home of the deceased and found the deceased Lying down at the door. Appellant was identified at the trial by the witness Torres as the man who got out of the car and talked to him on the night of the homicide.

Mrs. Rachael Martinez, the deceased's widow testified that on the night in question after she and her husband had retired they were awakened by a knock at the door; that her husband went to the door and asked the man at the door who he was looking for to which he replied 'Crespene Gomez'; that she then heard one shot and saw her husband fall.

Juan Guana, a next door neighbor of the deceased testified that on the night of the homicide around 1:30 o'clock A.M. he heard a car pass on the street and stop in front of the Pete Torres house; that the car in which two people were riding backed up and stopped in front of the home of the deceased lying down at the door. Appellant side and went to the door; that he heard the man say he was looking for 'Crespene Gomez' and heard the deceased say he did not live there; that he then heard a shot and saw the man go to the car, get in on the right side and the car drive away. Guana testified that he then went to the home of the deceased and found the deceased lying at the door.

It was shown that the cause of death of the deceased was a gun shot wound in the left cheek.

Appellant did not testify or offer any evidence in his behalf.

In his charge the court instructed the jury that the witness Gandar was an accomplice; that they could not convict upon his testimony unless corroborated and fully instructed the jury as to the corroboration necessary to convict upon accomplice testimony.

Appellant insists that the evidence is insufficient to corroborate the testimony of the accomplice witness, Gandar, as is required by Art. 718, Vernon's Ann.C.C.P.

In the recent case of Thomas v. State, Tex.Cr.App., 313 S.W.2d 311, this court in passing upon the sufficiency of the corroboration of an accomplice necessary to convict under the statute said:

"The test as to the sufficiency of the corroboration long recognized as correct by our courts is to eliminate from consideration the evidence of the accomplice and examine the testimony of other witnesses with the view of ascertaining if from them comes incriminating evidence which tends to connect accused with the commission of the offense. If so, the corroboration is sufficient; otherwise, not.' Barnes v. State, Tex.Cr.R. 93, 253 S.W.2d 440, and Turner v. State, 108 Tex.Cr.R. 486, 1 S.W.2d 642.'

In 18 Tex.Jur. par. 173, page 285 is found the following language:

'Corroboration of the testimony of the confessed participant in the offense is to be found in evidence which shows that at the time of its commission the accused was at the scene of the crime or which tends to show that he was present.'

The testimony of the witnesses Pete Torres and Juan Guana places appellant at the scene of the homicide on the night in question and together with the other facts and circumstances is in our opinion sufficient to corroborate the testimony of Gandar, the accomplice witness, and to support the jury's verdict finding that appellant shot and killed the deceased.

By Bill of Exceptions Nos. 1, 2 and 3 appellant complains of the action of the court in permitting the State, over his objection, to show his actions and conduct in carrying a pistol and committing an assault in the City of Sonora, Sutton County, Texas, prior to the homicide. Appellant insists that such evidence constituted proof by the State of extraneous offenses which calls for a reversal of the conviction. The court in his qualifications to the bills certifies that the evidence was material upon the question of the intent and identity of the appellant, identity of the gun introduced in evidence and as corroboration of the accomplice witness Gandar. Reference is further made by the court in his qualifications to other testimony in the record as being material on the issues.

The State insists that appell...

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22 cases
  • United States v. Knohl, 340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 22 Junio 1967
    ...162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice, Moss v. State, 364 S.W.2d 389; motive, Moses v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 885; a system of criminal a......
  • Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70
    • United States
    • United States Supreme Court
    • 23 Enero 1967
    ...162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice, Moss v. State, Tex.Cr.App., 364 S.W.2d 389; motive, Moses v. State, 168 Tex. Cr.R. 409, 328 S.W.2d 885; a system......
  • Evans v. State
    • United States
    • Court of Special Appeals of Maryland
    • 19 Diciembre 2006
    ...is generally not used in a singular sense unless such an intention is clear from the language of the statute."); Chavira v. State, 167 Tex.Crim. 197, 319 S.W.2d 115, 120 (1958) ("a" means the same as "any"); First American Nat. Bank v. Olsen, 751 S.W.2d 417, 421 (Tenn.1987) (same); Applicat......
  • State v. Prieur, 52365
    • United States
    • Supreme Court of Louisiana
    • 19 Febrero 1973
    ...282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice, Moss v. State, Tex.Cr.App., 364 S.W.2d 389; motive, Moses v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 885; a system of criminal activit......
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