Gavia v. State, 45325
| Decision Date | 29 November 1972 |
| Docket Number | No. 45325,45325 |
| Citation | 488 S.W.2d 420 |
| Parties | Cresensio GAVIA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William B. Smith, Midland, for appellant.
James A. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist. Atty., Midland, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
The conviction is for murder; the punishment, twenty-five (25) years imprisonment.
The appellant urges that the instructions as submitted to the jury deprived him of a charge on a defensive theory to which he was entitled under the evidence. We agree.
The appellant made a timely objection in writing to the court's omission of a charge on self-defense against an unlawful violent attack as provided for by Article 1224, Vernon's Ann.P.C. 1
His request was for a charge on the right of self-defense to milder attack as distinguished from the charge on the right of self-defense arising from a reasonable expectation or fear of death or serious bodily injury. The latter charge was submitted.
The State's brief points to the case of Curry v. State, 156 Tex.Cr.R. 379, 242 S.W.2d 421 (1951) as enunciating the well recognized requirements which the evidence must meet before a defendant is entitled to the charge insisted upon by this appellant. It is as follows:
'In order for a homicide to be justified under Article 1224, V.A.P.C., it must appear:
'a. That the accused resorted to all other means to prevent the injury, save retreat,
'b. That the person killed was in the very act of assaulting the accused at the time he was killed, and
In determining whether any defensive charge should be given, the credibility of evidence or whether it is controverted or conflicts with other evidence in the case may not be considered. When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. It is then the jurors' duty, under the proper instructions, to determine whether the evidence is credible and supports the defense.
There is some difficulty in considering the evidence in this case. The appellant could not testify in English. He understood and spoke Spanish and it was necessary to use an interpreter. The record reflects that the interpreter had some trouble in translating the testimony accurately for the record. The patience and fairness on the part of the court and the parties are to be commended.
Although the deceased was unarmed, he was a considerably larger man than the appellant. There had been prior difficulties between the deceased, the appellant and the appellant's brothers.
Both the appellant and the deceased were in the Hitching Post Bar. The appellant had been drinking beer with some older friends. The appellant, using offensive language, threw a pool ball onto the pool table and started to leave. The deceased was the owner of the pool table, which had been leased to his relatives who operated the bar.
The deceased hollered at the appellant saying, 'Hey, don't throw the balls like that on the table.' The appellant asked what harm it would do and picked up a ball and threw it back onto the table. The deceased picked up the ball and struck the appellant in the face with it. The appellant started to leave but he noticed blood on his face which felt hot. The appellant then asked the deceased why he had struck him and the deceased replied, 'Oh, you are nothing to me,' and 'he said that--he told me that I was nothing to him, and that he could kill me any time because I was nothing.'
The deceased then 'jumped on' the appellant and 'pushed' or 'wrestled' him out of the bar. The appellant took...
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Reyes v. State
...whether produced by the State or the defendant, and whether it be strong, weak, unimpeached or contradicted. See Gavia v. State, 488 S.W.2d 420, 421 (Tex.Cr.App.1972); Thompson v. State, 521 S.W.2d 621, 624 (Tex.Cr.App.1974); Warren v. State, 565 S.W.2d 931, 933-34 (Tex.Cr.App.1978); Moore ......
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Chambers v. State, 54676
...the appellant's guilt as a principal, even though the court's charge includes an instruction on principals. And in Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972), a murder prosecution under the 1925 Penal Code, we held that the inclusion in the court's charge of an instruction on the righ......
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Cain v. State, 52217
...theory. See Sargent v. State, 518 S.W.2d 807 (Tex.Cr.App.1975); Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974); Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972). Further, Article 39, Vernon's Ann.P.C., 1925, provided: "No act done by accident is an offense, except in certain cases specially......
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Wilson v. State
...even as defined in V.T.C.A., Penal Code Section 2.04. The Court has expressly and succinctly stated otherwise in, e. g, Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972): "When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted t......