Dominguez v. State, 47785
| Decision Date | 20 March 1974 |
| Docket Number | No. 47785,47785 |
| Citation | 506 S.W.2d 880 |
| Parties | Rudy DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jack M. Sessom, San Angelo (Court appointed), for appellant.
Royal Hart, Dist. Atty., Gerald A. Fohn, Asst. Dist. Atty., San Angelo, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
JACKSON, Commissioner.
The conviction was for murder with malice in a trial by jury; the punishment, One Hundred One (101) years.
On August 12, 1972, appellant killed James DeBerry by shooting him twice with a .22 pistol about 12:30 P.M. at the loading dock of the Alderman-Cave Mill in Winters. DeBerry was supervisor at the mill. As he and an employee were standing on the dock talking a white automobile occupied by two Mexican-Americans drove up and stopped near the dock. The passenger in the car, appellant, called deceased over to the car, they talked briefly, appellant produced a pistol and as deceased stepped back about two steps appellant shot him. An autopsy was performed and two .22 caliber bullets were removed from the body.
Immediately after the shooting, the car sped away at a high rate of speed going eastward toward Coleman. Officers were called at Coleman. They set up a roadblock and about 20 or 30 minutes after the shooting, some 24 miles away, the white automobile containing appellant as a passenger and driven by Domingo Pesina approached driving fast. After some difficulty, the officers succeeded in stopping the car. As it came to a stop, appellant threw a shiny object into the weeds by the side of the road. This object was later found to be a .22 revolver, containing two fired shells, two live shells and two empty chambers.
As the officers were arresting appellant but before they got handcuffs on him, without any questioning, he spontaneously said: 'I shot the man at Winters because he exposed himself to my wife.' And further, he stated that if the man didn't die he would go back and kill him.
The driver of the car, Domingo Pesina, testified to the shooting of deceased by appellant. He said he did not know the shooting was going to occur. He and appellant had been drinking beer all the night before and had not gone to bed. Appellant did not testify either before the jury or at the hearing on his motion to suppress the oral statements.
The court held a hearing outside the presence of the jury on the admissibility of the oral statements, after which the court overruled objections as shown in its order reading in part as follows:
'The Court finds that the defendant was under arrest but that the statement or statements attributed to the defendant to the effect that he had shot a man at Winters and that if he did not die he would go back and kill him were statements voluntarily made, not in response to any question, and were res gestae of the arrest.
'It is, therefore, ordered that the defendant's objections thereto be and the same are hereby overruled, the defendant in open Court excepting.
/s/ Glenn R. Lewis
The oral statements here were made when appellant was arrested as he was in flight from the scene of the shooting, just after he had thrown away the pistol used. The statements were spontaneous and instinctive and were not in response to questions by the arresting officers. They were res gestae of the arrest, as the trial court properly held. Art. 38.22, Vernon's Ann.C.C.P., permits the use of such oral statements without warnings, when they are 'res gestae of the arrest or of the offense.' Fisk v. State, Tex.Cr.App., 432 S.W.2d 912; Ramos v. State, Tex.Cr.App. 419 S.W.2d 359; Smith v. State, Tex.Cr.App., 474 S.W.2d 486; Jones v. State, Tex.Cr.App., 458 S.W.2d 654; Miles v. State, Tex.Cr.App., 488 S.W.2d 790.
Next, appellant asserts error because the trial court did not give, as requested, a charge on the law of self-defense.
The evidence did not raise the issue of self-defense. Appellant sought out and shot deceased because of a real or fancied belief...
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McBride v. State, No. 13-04-575-CR (Tex. App. 7/13/2006)
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Sheldon v. State, 48166
...V.A.C.C.P., and find that such statement was spontaneous and instinctive, and admissible as a res gestae declaration. Dominguez v. State, Tex.Cr.App., 506 S.W.2d 880; Hood v. State, Tex.Cr.App., 490 S.W.2d 549; DeLeon v. State, Tex.Cr.App., 500 S.W.2d 862. Cf. McBride and Byars v. State, Te......
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Smith v. State
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Johnson v. State
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