Dominguez v. State, 43051
| Decision Date | 18 November 1970 |
| Docket Number | No. 43051,43051 |
| Citation | 459 S.W.2d 628 |
| Parties | Miguel Espinoza DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jack N. Ferguson, El Paso (appointed on appeal only), for appellant.
Jamie C. Boyd, Dist. Atty., Wanda E. Creamer, Asst. Dist Atty., El Paso, for the State.
OPINION ON APPELLANT'S MOTION FOR REHEARING
The conviction is under Art. 802c, Vernon's Ann.P.C., for the offense of murder without malice; the punishment, three years.
The prior opinion is withdrawn.
The appellant contends that the evidence is insufficient to support the conviction.
The testimony of the state reflects that while Diana Alexander and Elizabeth Ann Kelly, age ten at time of trial, were at a street intersection Elizabeth saw a car weaving back and forth and coming toward them, and the next thing she knew she had fallen.
Mary Nielsen, who was working in a building at a corner of said intersection at the time in question testified that she was cleaning her plate glass window when she saw two little girls standing across the street and a car coming down the street weaving. She saw what she first thought was a piece of paper fly then realized the child was hit; the car passed and then stopped, and the little girl was lying there. At that time she saw the driver of the car, who she identified as the appellant, get out of the car and go up to the little girl. The little girl was bleeding all over, and the appellant was standing there swaying. Nielsen said, 'Idiot' or 'Stupid' and 'See what you done,' and the appellant replied, 'I didn't; they run in front of me.'
Nielsen further testified that she had worked in bars and lounges for nineteen years and had seen thousands of people that had been intoxicated or drunk, and 'plus all these elements and the defendant's behavior, and your observations of the defendant at the scene,' she was of the opinion that the appellant was drunk.
Clara Kelly, the mother of Elizabeth with whom Diana Alexander had spent the previous night, went to the scene in response to a telephone call where she saw Elizabeth standing and Diana lying on the ground; and she went to the hospital with Diana.
Officer Lombrana testified that he arrived at the scene four or five minutes after receiving a police radio dispatch. He testified, without objection, that appellant told him he was driving the car; and that he found particles of broken glass at the scene on the street. He further testified that he knew of his personal knowledge that Diana Alexander was taken to the Providence Memorial Hospital and that he saw her there.
Dr. Kaip, a physician, testified that he was in the emergency room of Providence Memorial Hospital when a young girl about nine year of age was brought in at the time in question. While testifying, he identified the copy of a hospital record bearing the name of Diana Alexander, age nine, and stated he examined the patient and immediately afterwards wrote the results on the record but not the name or age. He then read from the record, without objection. He further testified that said patient had injuries all over her including a soft skull and chest and multiple rib injuries, and expressed the opinion that her condition was consistent with a person who had been run over by an automobile; and that she died of the injuries she had when he examined her.
While testifying in his own behalf, the appellant described the occurrence as follows:
'Q Did you hit the little girl?
'A No, I don't remember of having hit her, because I didn't see her.
'Q Did you hit another car?
'A Yes, sir.'
On cross-examination the appellant testified:
'Q When do you remember seeing little girls down there?
'A I didn't see them, never saw them.
'Q You just said now that you remembered seeing the little girls, and they were behind you.
'A I heard the yell; I didn't see them.
'Q I see.
'A I heard the yell; but I didn't see them.
'Q In that moment's notice, you were able to distinguish the cries of a child or a woman and the the difference between those cries?
'A It was the cry of a child, more like a child.
'Q How fast were you traveling?
'A About forty, I believe.
'A I didn't hit anyone, no, sir.
'Q Mr. Dominguez, isn't it true that Mary Nielsen talked to you there at the scene?
'A No, I don't remember having talked to her.
'Q Well, isn't it true that you told her that the little girls run in front of you?
'Mr. Chew: He said he hasn't talk-to her, Your Honor.
'The Court: I'll permit that examination now.
Assuming that the appellant's statement to Mary Nielsen that, 'I didn't; they run in front of me' was exculpatory, the other testimony of the state as shown is sufficient to disprove said statement. No charge was given on exculpatory statements; and no objection was made to the failure to so charge and no requested charges thereon were presented to the court. 31 Tex.Jur.2d 697, Sec. 128; 1 Branch 2d 103, Sec. 95.
The facts and circumstances are sufficient to support the conviction.
In his brief the appellant presents the following:
'Informal Bill of Exception No. Two Invalid Consent to Blood
'This appears in the statement of facts at page 99, lines 19 to 24 and page 100, lines 7 to end of page, all of page 101, page 102, lines 1 to 4.'
This does not constitute a ground of error as required by Art. 40.09, Sec. 9, Vernon's Ann.C.C.P.
From an examination of said references it appears that his complaint is to the admission in evidence of the results of the blood test because his consent was illegally obtained. To support his position before the trial court he urged:
The testimony of Officer Villa reflects that he took the appellant from the scene where the alleged offense occurred about 11:30 a.m., to Justice of the Peace Lewis who warned him in accordance with the provisions of Art. 15.17, V.A.C.C.P., about 12:29 p.m. Judge Lewis also advised the appellant of his...
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