Gonzales v. State

Decision Date23 April 1969
Docket NumberNo. 41950,41950
Citation441 S.W.2d 539
PartiesCipriano GONZALES, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Murray J. Howze, Monahans, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is cattle theft; the punishment, assessed by the court after a jury verdict of guilty, 3 years' confinement in the Texas Department of Corrections.

Appellant's sole ground of error is that the trial court erred in refusing to instruct the jury that the State's witnesses, Benino and Narcissa Renteria, were accomplice witnesses as a matter of law.

Orville Eugene Hancock testified that while driving on a road seven or eight miles northwest of Grandfalls, Texas, on the afternoon of January 17, 1967, he observed three Latin American males near a red Corvair automobile and the black leg of a calf sticking out from a tarp in front of the car; that the cows in a pasture on his right were 'all milling around and excited'; that after a quarter of a mile he turned around and upon his return discovered the tarp and calf had been placed in the luggage compartment under the hood of the Corvair; that he was not able to identify any of the men or obtain the car's license number; that he stopped at the first house to telephone 'the law' and while there the red car passed with its hood partially opened headed in the direction of Grandfalls.

S. S. Patterson, at whose house Hancock stopped, related that on his way home that afternoon he had passed a red car with its hood not shut.

Other State evidence reveals that later the same day a red Chevrolet Corvair automobile, registered to appellant, was found parked in the front of the Grandfalls Post Office. An examination of the luggage compartment revealed some black hair and a few blood spots though it had been recently washed out. The tire tracks discovered at the purported theft scene and subsequently at the Renteria home matched the tires on appellant's car. The following day the heads and hides of two black calves were found buried in the Renteria's yard. These white spotted heads and black hides (one with a brand) were identified as belonging to the two missing calves by their owner, E. J. Harrison, who related he had not given anyone permission to take his calves. A veterinarian testified each calf had been shot in the head with a small caliber bullet. A search on January 18, 1967, of the Renteria house in Grandfalls with Mrs. Renteria's consent revealed spots of blood and tallow in the bathtub and other areas of the house and fresh meat in the refrigerator. A .22 caliber rifle was also discovered. The bullets it contained were similar to the .22 caliber bullets and spent shells found at the purported theft scene.

Narcissa Renteria, sister of the appellant, testified appellant had butchered two calves in her bathroom in the late afternoon or evening of January 17, 1967; that the appellant informed her he purchased such calves; that her 17-year-old nephew washed out the red car and that at appellant's direction she drove it to and parked it in front of the Grandfalls Post Office where she locked it and took the keys; that appellant was permitted to use the Renteria automobile to haul the meat away; that he gave them some ribs which the officers found in the refrigerator; that she and her husband cleaned up their bathroom and buried the heads and hides of two calves in their yard in the early morning hours; that appellant left his .22 caliber rifle at their home; that she voluntarily consented to the search of her house and yard.

Benino Renteria, husband of Narcissa, testified that he arrived home from work at 6 o'clock p.m. on January 17, 1967, and found appellant there; that the red car was not there and the meat had already been loaded into his car in the garage; that they received 'just a little piece' of the meat (ribs); that he assisted in cleaning the bathroom that night and burying the heads and hides since they did not have any way to haul them off; that appellant had told him the calves had been purchased and he believed the appellant. He denied being one of the three men seen by the witness Hancock or knowing who could have been with the appellant at that time. He named the men with whom he had worked all day.

A stipulation was entered that the indictment was returned on February 21, 1967, and that peace officers were unable to locate the appellant because he 'was out of the jurisdiction of the court' until his arrest at his father's home in Pecos approximately four weeks before trial (February 28, 1968).

Appellant's only witness was his father who testified appellant was married, had six children and had never been convicted of a felony.

It is appellant's contention that the trial court should have peremptorily instructed the jury that the Renterias were accomplice witnesses as a matter of law rather than submitting the matter to the jury as a fact issue.

It appears well settled that '(w)hen it is a question as to whether an inculpatory witness is an accomplice, it is proper to leave that issue to the jury, under instructions defining the term 'accomplice' and applying the law to the facts bearing upon that issue.' 2 Branch's Anno.P.C., 2nd ed., Sec. 741, p. 39. See also Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108.

In Lopez v. State, 92 Tex.Cr.R. 97, 242 S.W. 212, it was said:

'It appears to have been held many times by this court that where there is any doubt as to the fact that a given witness is an accomplice, and this issue is submitted to the jury for their determination, this is sufficient even though the evidence appears largely to preponderate in favor of the fact that such witness is an accomplice.'

'It is not always reversible error to leave it to the jury to determine whether a witness is an accomplice although such fact may be apparent.' 2 Branch's Anno.P.C., 2nd ed., Sec. 741, p. 38.

Where, however, there exists no doubt...

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  • Harris v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
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