Davis v. State

• Decision Date: 26 May 1971
• Docket Number: No. 43800,43800
• Parties: Cecil Richard DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 457

467 S.W.2d 457

Cecil Richard DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 43800.

Court of Criminal Appeals of Texas.

May 26, 1971.

Robert Mitchell (court appointed), A. L. Hernden, San Antonio, for appellant.

Ted Butler, Dist. Atty., John L. Quinlan, III, Miles L. Johnsen and Lucien B. Campbell, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with the punishment assessed at 35 years.

In his sole ground of error appellant contends the trial court erred in failing to instruct the jury on the law of justifiable homicide to prevent a robbery, although the issue was raised by the evidence. See Article 1222, Vernon's Ann.P.C.

The record reflects that the homicide in question occurred during the early morning hours of July 28, 1969, near the corner of New Braunfels Avenue and Blain Street in the city of San Antonio. The 19 year old deceased, Teodoro Ayala, and 15 year old Gerald Gomez drove by the said intersection and observed Amparo Urbano, a prostitute, who was soliciting occupants of passing automobiles. After conversing with this member of the world's oldest profession about a 'date' and stating they did not have the $12.00 requested, the deceased and Gomez drove off. Circling the block in the deceased's car, they returned and advised Miss Urbano that they now had the correct amount of money. The deceased emerged from the car and walked with Miss Urbano toward a nearby shack where the 'date' was to be consummated. The deceased entered the house, then suddenly Miss Urbano closed the door and fled. The deceased followed in hot pursuit. He overtook her at the intersection and grabbed her. They fell to the ground struggling and she screamed the appellant Davis' name.

The appellant Davis was seated in a nearby car and had been observing the unraveling events.

The appellant left his car and approached the scene of the struggle with a pistol. When he fired once, the deceased stopped struggling with Miss Urbano, got to his feet and ran in the direction of his parked automobile. The appellant fired a second time, hitting the deceased who was some fifty yards away, in the back of the head inflicting a mortal wound.

The appellant, Miss Urbano and a friend immediately left the scene in appellant's car, although Miss Urbano later returned to the scene and identified herself to the police as the woman involved.

At the hospital where the deceased's body was taken, no money was found on the body, although Gomez testified he had earlier given the deceased two dollars and did not know how much money the deceased had himself at the time.

Amparo Urbano was called as a defense witness. During the course of her testimony she revealed she had been living with the appellant who was her 'pimp' and that she, at the time of the alleged offense, was five months' pregnant with his child; that he had forced her to work the night of the alleged offense.

She testified that as the deceased entered the shack she saw a knife in his hand and that for this reason she fled. She denied having taken any money from the deceased before fleeing.

Testifying in his own behalf, appellant admitted living with Miss Urbano but denied being her 'pimp.' He related that he was just sitting in his car near the intersection since he had nothing to do as the pool hall had closed for the night. He stated he observed a knife in the deceased's possession during the scuffle with Miss Urbano and that he fired in protection of her. He did not testify that he believed that the deceased was committing a robbery.

No knife was found at the scene or on the deceased's person. The appellant offered the testimony of a witness who claimed he saw some young people pick up the knife lying near the body of the deceased before the police arrived.

The court charged the jury on the issue of justifiable homicide to protect another person from unlawful violence ¹ but refused the written objection for failure to charge on the law of justifiable homicide to prevent a robbery.

It is clear that such an instruction need not be given unless the issue is raised by the evidence. Bryant v. State, 99 Tex.Cr.R. 600, 271 S.W. 610.

Appellant acknowledges his own testimony does not raise the issue, but contends it was raised by other sources and from all the evidence that appellant was entitled to a charge on justifiable homicide to prevent a robbery of another as well as to prevent unlawful violence on another. He contends that one justification for homicide may, even in an instant, supersede another and the trial court must give proper instructions on any defensive theory raised by the...