Flores v. State

• Decision Date: 04 February 1948
• Docket Number: No. 23854.,23854.
• Citation: 209 S.W.2d 168
• Parties: FLORES v. STATE.
• Court: Texas Court of Criminal Appeals

209 S.W.2d 168

FLORES v. STATE.

No. 23854.

Court of Criminal Appeals of Texas.

February 4, 1948.

Rehearing Denied March 17, 1948.

Appeal from District Court, Goliad County; Howard P. Green, Judge.

Miguel Flores was convicted of murder, and he appeals.

Judgment affirmed.

Alaniz & Norris, of Alice, for appellant.

Frank W. Martin, Dist. Atty., of Goliad, and Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for the murder of Paul Gibson, punishment assessed at death.

Deceased was known, and frequently referred to in the testimony as Blue Gibson. About five o'clock p. m. on February 6, 1947 appellant went to the Highway Cafe which was operated by Mr. W. A. Walker, assisted by his wife, Mrs. Beulah Walker. Employees of the cafe present at the time were Geneva Garcia (sometimes called Beva) and her two sisters, Josephine Cuellar and Mamie Barrentos. Verna Mae Young also worked at the cafe.

It may be stated here that the evidence shows that divorce proceedings were pending between Beva Garcia and her husband, and that appellant had been going with her without the knowledge of her family. Appellant seems to have been infatuated with her.

Geneva (Beva) Garcia testified that when appellant came to the cafe about five o'clock in the afternoon she had a conversation with him in the presence of her sister Josephine in the yard; that she told him she was not allowed to talk to anybody up there, and he said she had to talk to him or he would kill her; he said he wanted to take her home after she finished work, but she told him no, that Mr. or Mrs. Walker would take her home, and he said he would kill her, that it would be her last night because she would not go home with him; that while they were talking Mr. Walker stepped outside and called her in, telling her she had some work to do.

Josephine testified upon the point substantially as did Geneva, and in addition, said that when Mr. and Mrs. Walker told Geneva to go in the kitchen and cook appellant said to her (Josephine) that if she did not get her mother to let Geneva go with him he would kill Josephine and her husband, and come to the cafe and "finish everybody in the cafe." Josephine further testified that when Mr. and Mrs. Walker came into the yard where appellant was talking to Geneva and her (Josephine), Mrs. Walker told appellant they did not allow anyone to talk to the girls, that they had to work, and that appellant then said "he was going around the front and do something. I did not know what he means about who he was going to hurt or something there." At this point a kinsman of appellant took him away in a car. He seemed to be very angry and did not want to go, and Mrs. Walker called her husband, and appellant then left.

About seven-thirty o'clock that evening a shot was heard by a witness, and the body of Paul (Blue) Gibson was found in the road. He had been shot with a shotgun. The wound was in the back under the point of the left shoulder blade, and was about two inches in diameter. The place where the body was found was about three blocks from the cafe.

After appellant left the cafe Mrs. Walker went after some ice. As she was returning to the cafe she passed appellant who was "trotting along," and had a gun. She also saw Blue Gibson. At the time she saw them appellant and Blue were about two blocks apart.

The confession of appellant was introduced by the State without objection. Omitting formal parts, it is as follows: "* * * last night or yesterday, February 6th, 1947, about 5 o'clock P.M. in the evening I went to the Highway Cafe in Goliad, Texas, which is near the Gulf Filling Station, to see and talk to Beva Garcia who was working at the cafe. I saw her and she was busy. I drank a cup of coffee at the cafe. The man that runs the cafe, Mr. Walker, told me to leave the cafe, and that made me so mad so I left at once and went to where I have been living in east Goliad about a mile from town near the railroad tracks to get my gun. I was living with my sister, Chana Sosa. I went in my room and got my gun which is a sixteen guage shotgun that I bought from Sammy Garza about eight months ago. I got five loaded cartridges No. 6 shot at the same time and put one cartridge in my gun and the other four cartridges in my pocket. The five cartridges were all that I had. I then started walking back up town and came down the street where the beer joint is on the corner across from the cotton platform. I was plenty mad at that time and was going back to the cafe to shoot Mr. Walker because he had run me off from the cafe. I turned north towards the highway on the road which comes from the park and met Paul (Blue) Gibson, a negro who I had known for a long time, in the road. Blue tried to take my gun and he was laughing when he did it, and I kept him from taking the gun; then Blue Gibson started to running away from me and when he was about twenty feet from me I shot him in the back with shotgun. I shot Blue because he tried to take my gun. He did not say anything to me and I did not say anything to him before I shot him. Blue fell over after I shot him and I reloaded my gun and went on towards the cafe. I went in back of the buildings on the highway and did not go down any road. I went to the back of the cafe and still had my shotgun with me and I went to the cafe to shoot Mr. Walker. When I got to the door of the cafe Beva saw me and hid behind the ice box; the girl was sitting down when she first saw me. Then Mr. Walker shot at me with a pistol and I ran around the cafe building. Walker came out and I shot at him and then ran to where my sister Petra Palamares lives. I saw her and left my shotgun at her house but did not tell her what I had done. Then I left and went to my brother's house where I was arrested. It was between six and seven o'clock when I shot Blue Gibson. The shotgun which is now shown me which is a Stevens gun and which has the initials `WB' on the bottom of the stock and the letters `WFB' on the side of the stock is the gun which I shot Blue Gibson with and shot at Walker with. I had been drinking some beer before the shooting but I was not drunk at that time and I knew what I was doing when I shot Blue Gibson. I was not afraid of Blue Gibson and shot him because I was mad, and he wanted to take my gun. I had never had any trouble with Blue Gibson. I had been going with Beva Garcia for some time before the trouble last night. I dropped a loaded cartridge at the cafe and left two of the loaded cartridges at my brother's house when I got there after the shooting."

The evidence shows that appellant went hurriedly from the scene of the shooting to the cafe, going in the back way. He reached the cafe within ten minutes after he had killed Blue.

The detailing by various witnesses of what occurred when appellant returned to the cafe is made the subject of bills of exception Nos. 1, 2, 3, 4, 5, 7 and 8. The substance of this evidence is as follows:

Mrs. Walker testified that after she had seen appellant going in a trot towards the cafe with a gun she returned to the cafe and hooked the back screen door leading from the back porch to the kitchen, and knew it was still so hooked when appellant returned to the cafe. Within a few minutes after she got back she heard a girl scream, and saw the gun stuck in the back door. Witness told her husband appellant was there, and Mr. Walker fired a shot at him with a pistol, and appellant fell off the steps. Mrs. Walker then heard one of the waitresses, Verna Mae Young, scream and fall to the floor. A shot was fired and some of the shot struck Eugene Lockhart in the face. This shot entered at the window.

Mamie Barrentos testified substantially as follows: She saw appellant when he went into the porch behind the kitchen; he had his gun pointing across the screen door and was pointing it at her sister, Beva Garcia, who was in the kitchen. Witness ran to the front of the cafe and heard the shooting which resulted in Lockhart being struck in the face. He was standing by the "Victrola" when he was shot.

Mr. Walker testified that he saw appellant when he came back to the cafe about dark with a gun. Appellant was at the back door when witness first saw him, and was "fixing to shoot in the back door, had the gun up in front of the door." Witness fired at appellant who ran around the house. Witness started through the kitchen and appellant fired into the window. Witness fired at appellant again and he ran around the corner of the building, and as witness went around the corner appellant fired at him again, just as witness stepped into a hole and fell. Appellant then ran and witness fired at him again as he ran away. When witness first learned that appellant was at the back door Beva was trying to hide behind the icebox.

Verna Mae Young, a waitress at the cafe, testified in substance: That when appellant came back to the cafe she heard shooting; that Mr. Walker fired the first shot and then some shots came from the outside, one shot coming through the screen over an open window. This shot came close to witness who "ducked" as the shot was fired. This shot struck Eugene Lockhart in the face. Witness said if she had not "hit the floor" this shot would have likely struck her.

Eugene Lockhart, who seemed to be present at the cafe as a customer, and without connection with any of the parties, testified in substance: That he was standing near the "juke" box when he was struck in the face by shot, which knocked him down. One shot hit him in the nose, another through the lip and one over the eye. The main charge missed witness and struck the wall over the "juke" box. Witness did not know where the shot came from.

Appellant objected to testimony as to what happened at the cafe after Blue had been killed, on the ground that what occurred at the cafe at such time, (a) had no connection whatever with the offense charged against appellant and for which he was on...