Gonzales v. State

• Decision Date: 27 April 1982
• Docket Number: No. 05-81-00006-CR,05-81-00006-CR
• Citation: 632 S.W.2d 899
• Parties: Eugene Paredas GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 899

632 S.W.2d 899

Eugene Paredas GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 05-81-00006-CR.

Court of Appeals of Texas, Dallas.

April 27, 1982.

Daniel F. Solis, Dallas, for appellant.

Gregory S. Long, Asst. Dist. Atty., Dallas, for appellee.

Before GUITTARD, C. J., and WHITHAM and GUILLOT, JJ.

GUITTARD, Chief Justice.

Eugene Paredas Gonzales was convicted of murder in a trial by jury and sentenced to a term of forty-five years. On appeal he contends that the evidence is insufficient to support the conviction, that the court erred in refusing to charge on the lesser included offenses of involuntary manslaughter, aggravated assault, and criminally negligent homicide, and that his confession was improperly admitted. All of these grounds are overruled, and the conviction is affirmed.

First Ground: Insufficiency of Evidence

Appellant was charged with the murder of Jose Valdivia, who had been present at a card game earlier in the day at the home of appellant's father. The principal witness for the State was Concepcion Serrato, one of the card players. According to Serrato, he had won money in the game, but Valdivia had participated in the game only briefly, if at all. After the game, Valdivia asked appellant to take them home, and appellant agreed to do so. However, appellant took them in a different direction and drove down by the river, where he told them to get out of the truck. Appellant then pointed a pistol at them and ordered them both to give him their money. Serrato took some money out of his pocket and put it on the seat of the truck. Appellant then pointed the pistol at Valdivia, and Valdivia asked him not to kill them. Appellant then fired the gun and shot Valdivia in the side. Valdivia fell and appellant shot him again. He then fired a shot at Serrato and missed, but another shot hit Serrato in the chin. Serrato also fell, and he thought he heard appellant shooting again at Valdivia. Appellant then put the pistol to the back of Serrato's head and attempted to fire it, but it was apparently out of bullets. Appellant then got into his truck and drove away, leaving both Serrato and Valdivia.

Appellant signed a confession in which he admitted that he drove the two men down near the river and told them to get out, took out his revolver and demanded their money. He said they started laughing and one of them gave him his money, but the other refused. He admitted that he then started shooting and emptied his pistol at them. They fell down, and he scooped up their money and left.

The county medical examiner, who examined the body of the deceased Valdivia, testified that Valdivia received two gunshot wounds, either of which could have been fatal.

Appellant related a different version of the affair at the trial. He testified that he had won all the money in the card game and then agreed to take the other men home. He decided to drive down to the levee near some trees to urinate. He heard them talking and he told them to get out of the truck. They started laughing at him. He testified that he was going to fight them with his hands, but that Valdivia pointed a pistol at him and told him he wanted his money back. At that point, said appellant, he grabbed Valdivia's hand and twisted the gun, which fired and struck Valdivia. As Valdivia went down, appellant said, Serrato came at him with a knife. Appellant said that he then fired a shot toward the ground and "told the guy to stay back." According to appellant, Serrato continued to come toward him. Appellant hit Serrato in the face with the gun barrel, and the gun fired again. Appellant testified that he then threw the gun down and left in his truck. Other witnesses offered by appellant who were not present at the shooting corroborated his testimony in minor respects.

We hold that the evidence is sufficient to support the conviction. Serrato gives essentially the same account of the affair as that related in appellant's confession, but even if the confession is not considered, Serrato's testimony, together with that of the medical examiner, is sufficient, notwithstanding appellant's contrary testimony. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Daniels v. State, 600 S.W.2d 813, 815 (Tex.Cr.App.1980); Tex.Code Crim.Pro.Ann. art. 36.13 (Vernon 1981) and art. 38.04 (Vernon 1979).

Second Ground: Refusal to Charge on Involuntary Manslaughter

The court instructed the jury on both accident and self-defense. Appellant contends, however, that the court erred in refusing his requested charges on several lesser included offenses. After reviewing the evidence and the opinions of the Court of Criminal Appeals, we conclude that none of these issues is raised because there is no evidence that defendant is guilty only of a lesser offense.

Although the judges of the Court of Criminal Appeals have not been in agreement, the prevailing view seems to be that a two-step analysis must be used to determine whether a charge on the lesser included offense is required. First, the elements of the lesser offense must be included within the proof necessary to establish the offense charged, and, second, there must be evidence that if the defendant is guilty, he is guilty only of the lesser offense. Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982, en banc); Royster v. State, 622 S.W.2d 442, 446-47 (Tex.Cr.App.1981); Watson v. State, 605 S.W.2d 877, 884 (Tex.Cr.App.1980). ¹ This "guilty only" rule has been interpreted to mean that if the evidence raises only the issue that the accused is guilty of the greater offense or no offense at all, the issue of a lesser included offense is not raised. Simpkins v. State, 590 S.W.2d 129, 134 (Tex.Cr App.1979); Thomas v. State, 578 S.W.2d 691, 698 (Tex.Cr.App.1979); McBrayer v. State, 504 S.W.2d 445, 447 (Tex.Cr.App.1974). Evidence raising the issue may come from any source. Simpkins v. State, supra, at 132. However, the issue is not raised when the defendant's evidence unequivocally negates the lesser offense. Eldred v. State, 578 S.W.2d 721, 723-24 (Tex.Cr.App.1979); Williams v. State, 575 S.W.2d 30, 33 (Tex.Cr.App.1979); McCardell v. State, 557 S.W.2d 289, 293-94 (Tex.Cr.App.1977, Roberts, J., dissenting); Torres v. State, 493 S.W.2d 874, 875 (Tex.Cr.App.1973).

Applying this rule to the present case, we conclude that the lesser offense of involuntary manslaughter was not raised. Conviction of that offense would require proof that appellant consciously disregarded an unjustifiable risk, within the definition of involuntary manslaughter in Tex.Penal Code Ann. § 19.05(a) (Vernon 1974). According to Serrato, the shooting was intentional. According to appellant, the first shot was fired accidentally when he was twisting the hand in which Valdivia held a gun, the second was fired into the ground to stop Serrato from coming toward him with a knife, and the third was fired accidentally when appellant hit Serrato in the face with the gun. This evidence may raise accident and self-defense, but not involuntary manslaughter because there was no evidence he consciously disregarded an unjustifiable risk without intent to kill. Consequently, the requested charge on involuntary manslaughter was properly refused. Brooks v. State, 548 S.W.2d 680, 683-84 (Tex.Cr.App.1977).

Third Ground: Refusal to Charge on Aggravated Assault

Appellant's testimony that he did not intend to kill anyone, but only intended to fight with his hands, does not raise the issue of aggravated assault. Conviction of that offense requires proof that the defendant's conduct causing serious bodily injury be intentional, knowing, or reckless. Tex.Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(1) (Vernon Supp.1982). Intentional, knowing, or reckless conduct resulting in the fatal discharge of a gun raises a presumption of intent to kill; on this theory it has repeatedly been held that when a weapon considered deadly per se is used in a deadly manner and death results, the testimony of the accused that he did not intend to kill does not raise aggravated assault. Simpkins v. State, 590 S.W.2d 129, 134 (Tex.Cr.App.1979); Stills v. State, 492 S.W.2d 478, 479 (Tex.Cr.App.1973); Smith v. State, 411 S.W.2d 548, 553 (Tex.Cr.App.1967); Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322 (1943). In both Simpkins and Barr, supra, the court held that aggravated assault was not raised by the defendant's testimony that the gun was fired in the course of a struggle for its control.

Appellant cites Thompson v. State, 521 S.W.2d 621, 624 (Tex.Cr.App.1974) in support of his contention that his testimony raises aggravated assault. His reliance on that decision is misplaced because there the prosecution was not for murder, but for assault with intent to murder, which requires more particular proof of a specific intent to kill. In such a prosecution the intent to kill may be rebutted even though a deadly weapon is used, as the opinion in Thompson explains. On this express ground the Thompson opinion distinguishes the holding in Stills and Barr.

Here the evidence does not raise aggravated assault. Serrato's testimony does not raise it because he testified that appellant voluntarily fired the gun, and in that case appellant is guilty of murder because his intent to kill is presumed under the authorities cited. Appellant's own testimony does not raise it because he testified that he only intended to fight with his hands and did not voluntarily pull the trigger. This testimony does not raise the issue of intent to cause serious bodily injury, as the aggravated assault statute requires. Consequently, the charge on aggravated assault was properly refused.

Fourth Ground: Refusal to Charge on Criminally Negligent Homicide.

Neither does the evidence raise the issue of criminally negligent homicide. Appellant's testimony that he did not intend to kill the deceased and that his finger was not on the trigger of the gun when it discharged...