Gonzales v. State

• Decision Date: 12 November 1969
• Docket Number: No. 42300,42300
• Citation: 449 S.W.2d 49
• Parties: Matthew A. GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 49

449 S.W.2d 49

Matthew A. GONZALES, Appellant, v.The STATE of Texas, Appellee.

No. 42300.

Court of Criminal Appeals of Texas.

Nov. 12, 1969.

Rehearing Denied Jan. 28, 1970.

Marvin O. Teague, Houston, (On Appeal Only), Jon Hughes, Houston, (On Appeal Only), for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and Jimmy James, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, twenty-one years.

The first ground urged as error is that the evidence is insufficient to show malice aforethought.

The testimony of the state reveals that Tommy Velasquez, the deceased, age seventeen, attended a party given at his mother's home celebrating his entry into the Job Corps.The appellant, with other boys, came to the party uninvited.Appellant had been drinking and tried to pick a fight with a boy named Tony.When the appellant bothered a girl, a boy named Adam told him to leave her alone.Later, Adam and appellant started fighting in front of the house and the deceased came outside.Deceased had previously told the appellant to leave.He stepped between them and when he told appellant again to leave, the appellant advanced toward the deceased who pushed him away.Appellant then stabbed deceased twice with a knife in the chest and in the head.The deceased had nothing in his hands.After the stabbing the appellant ran to a car, but the officers arrived before he left.

Tony Korrodi testified that during the partythe appellant, while asking him some questions, put his hand in his pocket and he(Tony) could see the blade of a knife, and then appellant cursed and walked away.

The arresting officer found an open knife on the floorboard of the car in which the appellant was seated, between appellant's feet.The officer testified that there were matchsticks in the knife which could prevent the blades from completely closing.

Dr. Jachimczyk, chief medical examiner for Harris County, testified, without objection, that he performed an autopsy on the body of the deceased and his examination revealed:

'A The post-mortem examination revealed this to be the body of a 17-year-old white male who measured 63 inches, five foot, three inches in over-all length, and weighed 113 pounds.He had a cut over his right ear in the scalp which started at the pinna--that is, the attachment of the ear--and went three inches up into the scalp and gapped one inch in width.

'He also had another cut and stab in the right axilla, or right armpit, which coursed from the right pectoralis muscle--the right chest muscle--five inches in length and gapped an inch and a half and penetrated the right chest cavity through the first right interspace through the right axilla, or armpit, into the chest for a deepest point of penetration of two and seven-eighths of an inch, penetrating the superior vena cava and the innominate artery.These are large blood vessels inside the body, causing two quarts of internal hemorrhage into the right chest, causing leakage of air into the right chest, shock and death.

'So that the cause of death is the stab wound into the right chest.'

Testifying in his own behalf, the appellant, while admitting he attended the party, denied that he stabbed the deceased or participated in it in any way.He called several witnesses whose testimony corroborated his testimony.They each testified that they were invited to the party.

The jury resolved the issues of fact against the appellant.

The evidence is sufficient to support the jury's finding that the appellant is guilty of murder with malice as alleged and supports the conviction.

The second ground of error is that the trial court erred in refusing to charge on aggravated assault.While testifying, the appellant denied stabbing the deceased or participating in it in any way; and further testified that he was 'not claiming self-defense or anything.'The refusal to give such charge was not error.Bell v. State, Tex.Cr.App., 411 S.W.2d 725.

Appellant contends that he was deprived of a fair and impartial trial by the state attempting to show during the examination of a witness that his trial counsel had caused the witness for the state to testify untruthfully during the trial.

When this matter arose, the court removed the jury.After appellant's counsel had examined the witness on voir dire he told the court: 'Now, if he wants to go into it, he can go into it, Your Honor.'The court replied: ...