Cordero v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MORRISON; DAVIDSON
• Citation: Cordero v. State, 297 S.W.2d 174, 164 Tex.Crim. 160 (Tex. Crim. App. 1956)
• Decision Date: 28 November 1956
• Docket Number: No. 28548,28548
• Parties: David CORDERO, Appellant, v. The STATE of Texas, Appellee.

Page 174

297 S.W.2d 174

164 Tex.Crim. 160

David CORDERO, Appellant, v. The STATE of Texas, Appellee.

No. 28548.

Court of Criminal Appeals of Texas.

Nov. 28, 1956.

[164 TEXCRIM 161] R. Richard Thornton, Galveston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is aggravated assault; the punishment, 2 years in jail and a fine of $500.

The injured party, H. J. Luhn, a 60 year old Houston business executive, left his place of business late in the evening in his automobile and first saw the appellant and his companion as he was traveling on Navigation Boulevard. They pulled up beside him and shouted something to him, but since he did not know them he continued on his way. According to his testimony, they followed him for two miles and made several efforts to stop him. Finally, when he came to a red light, the appellant and his companion Mize left their automobile, which had come to a stop immediately behind him, and approached his automobile. Having become apprehensive, the injured party opened his pocket knife in order to defend himself but was never able to do so because the appellant entered his automobile from the right side, grabbed his wrist, and proceeded to hit him about the head and face. Mize then pulled the injured party out on the left side, and the two of them kicked him while he was lying on the pavement. According to Luhn, the appellant inquired of his companion, 'Have we given him enough?' and Mize replied, 'No, Let's give him some more,' and the kicking and beating continued until police officers arrived upon the scene. The injured party remained in a hospital for a week following the assault.

The witness Free testified that he was employed at a filling station and witnessed the assault. He stated that the appellant first beat Luhn about the head and face with his fist, and, after [164 TEXCRIM 162] Luhn was out on the ground, the appellant stood on one of Luhn's legs and held his other leg up in the air while Mize stomped him. Free testified that the appellant cursed Luhn in a loud voice and that the officers had difficulty in getting the situation under control after they arrived.

Mrs. Doris French testified that as she passed the scene of the assault at the time established by the other witnesses she saw an elderly man at the wheel of an automobile, one man on the outside pulling on the old man, and another on the inside hitting him. She stated that she then saw the old man out of his automobile lying on the ground and the two men were hitting and kicking him.

William Kincaid testified that as he drove by the scene of the assault he saw Luhn lying on the pavement and that the appellant was holding one of Luhn's feet while Mize kicked him.

Dr. Taylor testified that he treated the injured party on the night of the assault and thereafter, and described his injuries as follows: three knots on his head, a marked swelling on his face and of one eye, abrasions on his ear, a break through the lip, a marked contusion on the right loin, and a fractured right rib over the area of his kidney.

The appellant, a 23 year old policeman from the City of Galveston, testifying in his own behalf, stated that he and his fellow officer Mize from Galveston came to Houston on the night in question to attend the Houston police officers' dance. Both men were in civilian clothes and off duty. They stopped on the way into town, had a beer, and called the Houston police for directions to where the dance was to be held. They had a bottle of whiskey on the front seat of their automobile, and it was broken during their pursuit of Luhn. According to the appellant, Luhn sideswiped their automobile, and they pursued him in order to secure the necessary information to make an accident report. Their pursuit, according to the appellant, lasted only five blocks, and, as he approached Luhn's automobile, he saw the knife in his hand and grabbed his wrist and hit him across the mouth. He stated that Mize pulled Luhn out of his automobile but denied that Luhn was ever prone on the pavement or that either of them ever kicked him.

Appellant testified that he and Mize were released on bond at ten o'clock that night and went to the dance.

[164 TEXCRIM 163] The two Houston police officers who arrested the appellant and Mize testified for the defense and stated that Luhn was standing up at the time they arrived upon the scene.

The jury resolved the issue of fact against the appellant, and we find the evidence sufficient to sustain their verdict.

We shall now discuss the contentions advanced by the appellant's able attorney in his brief and argument.

He contends that Dr. Taylor was not shown to be a qualified medical expert witness because the State failed to establish that he had passed a medical examination before the State Board or had registered with the district clerk of the county where he practiced. It was shown that the doctor was a graduate of Baylor Medical College and had practiced medicine for nine years. In Silva v. State, 215 S.W.2d 887, this Court held that, though not licensed, a physician with sufficient qualifications might testify as an expert witness.

Appellant next complains of the asking of the following question:

'Q. Doctor, in your opinion, if a man the age and size of Harrison Luhn was beaten * * * about the head by a person the size of this defendant, Cordero, with his fists, and kicked in the region of the right loin, where you indicated Mr. Luhn had some contusions, by an adult male, with his foot with a shoe on that foot, would that be a means calculated to produce great bodily injury? A. * * * Yes.'

Among other objections urged was that the doctor's answer to this question invaded the province of the jury.

We shall discuss the cases upon which the appellant relies.

In Langford v. State, 124 Tex.Cr.R. 473, 63 S.W.2d 1027, 1029, this Court said:

'The doctors could, of course, give the location of the wounds upon the body of deceased as found by them, the condition of the wounds, and then state their opinion as to whether made with a blunt or a sharp instrument, but not whether they could have been made by an automobile running over deceased as that did not involve any technical skill or scientific learning, but common experience and common sense as to which the jury could judge for themselves.'

[164 TEXCRIM 164] So then it will be seen that the Court held in that case that the jury possessed as much information as did the doctors on the pure fact question presented in the doctors' answer, and therefore the testimony of the expert witness could not assist the jury in arriving at the truth.

In Hill v. State, 134 Tex.Cr.R. 163, 114 S.W.2d 1180, 1183, the Court cited the Langford case with approval and had this to say:

'In our opinion this witness should have been allowed to testify, as he did, that the bruises and wounds on the deceased's body could have been caused by blows from fists and stomping of tht feet, but when he went further and said that same were thus caused, he invaded the province of the jury * * *.'

It is obvious from the report in the Hill case that when the witness made the categorical statement that death was caused by the blows and stomping he went beyond the bounds of expert testimony. When he stated that the blows could have caused the injuries, he had gone as far as he could in aiding the jury.

In Boles v. State, 108 Tex.Cr.R. 204, 299 S.W. 407, we reversed the conviction because the expert witness was permitted to testify that in his opinion the deceased was down upon the...