Flores v. State

• Decision Date: 07 February 1973
• Docket Number: No. 45566,45566
• Parties: Jerome FLORES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 144

491 S.W.2d 144

Jerome FLORES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 45566.

Court of Criminal Appeals of Texas.

Feb. 7, 1973.

Rehearing Denied March 21, 1973.

Melvyn Carson Bruder, Dallas (Court Appointed on Appeal), for Jerome Flores, Jr., for appellant.

Henry Wade, Dist. Atty., Jerome L. Croston, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for murder. Punishment was assessed by the jury at life.

Initially, appellant contends that the evidence is insufficient to sustain the conviction.

Juan Garza testified that he and the deceased, Robert Villareal, left the deceased's home in Dallas about 10 P.M., on July 3, 1970, to go to a lake. When Garza and the deceased had travelled to within three miles of the traffic circle on Harry Hines Boulevard, they 'turned back' and drove to the Copa Cabana Lounge on Ross Avenue where they 'bought a beer.' Upon leaving the lounge some thirty minutes later, Garza saw appellant and co-defendant Ortega, also known as 'Three.' After Garza shook hands with Ortega and appellant, Ortega told him to leave. Ortega and appellant were standing by a late model blue Ford Torino with black racing stripes. Shortly thereafter, deceased came out of the lounge and Garza and the deceased left in Garza's automobile. According to Garza, the deceased had done the driving throughout the evening, since Garza's driver's license had been suspended. About the time they reached the post office on Bryan Street, deceased told Garza that a car was behind them. The following testimony was elicited from Garza concerning the events which followed:

'Q. Which way did you look to, did you look to the right or did you look to the left?

'A. Left.

'Q. All right. Please tell the court and jury what you saw when you looked to the left?

'A. Well, I seen that blue Torino.

'Q. Was this the same blue Torino that you had seen a few minutes earlier in front of the Copa Cabana?

'A. Yes.

'Q. The one where you had seen Jerome Flores, Jr. and Augustine Mendoza Ortega standing by?

'A. Yes, sir.

'Q. Who was driving that automobile, do you recall?

'A. Jerome.

'Q. Jerome Flores, Jr.

'A. I saw him driving the automobile, yes, sir.

'Q. . . . Was there anyone else seated in the front seat with him?

'A. No, sir.

'Q. Was there anybody else seated, was there someone seated in the back seat?

'A. Yes, sir.

'Q. All right. Who was that?

'A. Three.'

'Q. When you looked to the left, please tell the jury what you saw?

'A. I seen that blast, shotgun fire.'

As a result of the gunshot, Garza lost his left eye. Dr. Walter Hofman, Medical Examiner, testified that the deceased died as the result of a 'shotgun would in the head.'

Deceased had killed appellant's uncle in 1967 and had been released from the Department of Corrections three weeks before the time in question.

Appellant urges that 'mere presence' at the scene does not show guilt and that there is no evidence that appellant fired the shot or that there was any plan, purpose or scheme between appellant and Ortega. In addition, appellant argues there is no showing of aid or encouragement furnished by appellant to Ortega.

The jury was instructed on the law of principals.

Appellant was present outside the Copa Cabana with Ortega a short time before the shooting. Appellant was the driver of the car which pursued the deceased and Garza after they left the lounge. The fatal shot came from the direction of the car which appellant was driving.

Garza stated that he was able to catch a glimpse of the car appellant was driving after the shot was fired and it went 'straight ahead on Bryan.'

Article 65, Vernon's Ann.P.C., provides: 'All persons are principals who are guilty of acting together in the commission of an offense.'

The jury had sufficient evidence before it to conclude that appellant was acting with another in the commission of the murder. See Scott v. State, Tex.Cr.App., 461 S.W.2d 619; Gerzin v. State, Tex.Cr.App., 447 S.W.2d 925; Ibarra v. State, Tex.Cr.App., 444 S.W.2d 926; Gonzales v. State, 171 Tex.Cr.R. 373, 350 S.W.2d 553.

Appellant next contends that the evidence is insufficient to corroborate the testimony of Garza 'who was rendered an accomplice witness.'

Appellant urges that Garza became an accomplice witness by virtue of having told one Ralph Robledo he didn't see who fired the shot and he didn't want to testify.

Garza was not connected to the offense in the instant case by unlawful act or omission on his part, transpiring before, at the time of, or after the commission of the offense. Clearly, a prosecution would not lie against him under the indictment by which the accused was charged. See Article 38.14, Vernon's Ann.C.C.P.; Gausman v. State, Tex.Cr.App., 478 S.W.2d 458; DeVault v. State, Tex.Cr.App., 449 S.W.2d 235.

We reject appellant's contention that Garza was an accomplice witness.

Appellant contends that the court erred in admitting evidence concerning the relationship between the deceased and appellant's uncle.

Appellant urges that the testimony concerning the deceased having killed appellant's uncle in 1967 was irrelevant and prejudicial.

Article 1257a, V.A.P.C., permits the State or the defendant in a homicide case to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide. See Coleman v. State, Tex.Cr.App., 442 S.W.2d 338; Brown v. State, 171 Tex.Cr.R. 320, 349 S.W.2d 722.

We find that the complained of testimony was admissible under Article 1257a, V.A.P.C., in that it was a circumstance tending to show the relationship between appellant and deceased, who had only been out of the Department of Corrections three weeks after having killed appellant's uncle in 1967.

Appellant contends that the court erred in refusing to instruct a witness to testify upon appellant's request.

Dr. Morton Mason, Director of the Criminal Investigation Lab for Dallas, was called by the appellant and testified the alcohol concentration in the blood of the deceased was .207 percent. He further stated that he had testified in about two thousand cases in which blood alcohol content was involved. Then, appellant's counsel asked the doctor's opinion as to whether or not this alcohol concentration would result in intoxication of the deceased. The doctor refused to answer this question, stating that he had no opinion because 'I have not been retained as an expert witness for the defense . . . and unless I am retained as an expert witness . . . I am . . . refusing to give testimony for the defense.' In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d...