Gonzales v. State

• Decision Date: 15 September 1992
• Docket Number: No. 01-90-00582-CR,01-90-00582-CR
• Citation: 838 S.W.2d 848
• Parties: Alex GONZALES, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 848

838 S.W.2d 848

Alex GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 01-90-00582-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 15, 1992.

Rehearing Denied Oct. 29, 1992.

George McCall Secrest, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Chuck Rosenthal, Donald A. Smyth, Asst. Dist. Attys., for appellee.

Before OLIVER-PARROTT, C.J., and O'CONNOR and COHEN, JJ.

OPINION

COHEN, Justice.

In the early morning hours of October 31, 1989, appellant shot and killed Ida Delaney. The shooting ended an encounter that began near the Park Place entrance ramp to the Gulf Freeway and covered 12 miles as appellant and his two companions, all off-duty Houston police officers, pursued Delaney's pickup truck across Houston to the Newcastle exit of the Southwest Freeway. There, after a face-to-face confrontation in which Delaney wounded appellant with gunfire from her revolver, appellant shot her to death.

Appellant was indicted for murder. A jury found him guilty of voluntary manslaughter and assessed punishment at seven years in prison. Because appellant was not allowed to present admissible evidence that was vital to his defense and because the jury charge commented on the weight of the evidence, which is prohibited by Texas law, we reverse the judgment and remand the cause for a new trial.

On the night of October 30, appellant attended a birthday party for his police partner at Tequila's, a restaurant and bar, arriving about 10:00 p.m. While there, he ate a meal and consumed two bottles of beer, three or four cups of draft beer, and two or three mixed drinks. At about 1:00 a.m. on October 31, appellant and two other police officers, Alex Romero and Robert Gonzales, ¹ left Tequila's, destined for the High Ten Cabaret, a "gentlemen's club." At that time, Romero had consumed four or five beers and Gonzales had had five or six.

While at the High Ten Cabaret, Romero had another beer, Gonzales also had one or two beers, and appellant had three mixed drinks. When the cabaret closed at 2:00 a.m., the three returned to Tequila's. Once there, they shot pool for a time, during which they had free access to the bar. Romero had another beer, and appellant had another drink. However, the men testified they were not intoxicated. Appellant testified that, at all relevant times, he had "absolutely full use of [his] mental and physical facilities." Around 4:45 a.m., the three men left Tequila's to get food. They traveled in appellant's car, a Mercury Cougar. Romero drove.

Ida Delaney left Galveston about 4:15 a.m. on October 31, 1989 to go to her job at the Houston Post building. She came upon the car carrying the three men near the Park Place entrance ramp on the Gulf Freeway.

As the three men were entering the Gulf Freeway going north, Delaney's pickup truck swerved into their lane. Romero had to swerve and brake to avoid being hit. When he returned to the lane with the pickup truck ahead of him, he flashed his headlights from dim to bright and blew the horn. All three men testified that within seconds the driver in the truck stuck his or her hand out of the window and fired a gun at them. At the time, the men did not know the number, race, or gender of the truck's occupants. Romero stated:

"Well, within seconds the person in the truck just shot at us with a pistol ... at the time the pickup swerved into my lane and after I broke and swerved, and after I ... flashed the high lights and blew the horn. I saw a person stick out their hand and just point the revolver at us and shoot one time. You could see--you could hear the gunshot and you could see the fire from the barrel."

Romero testified the driver displayed the gun at them a second time, near the Scott Street exit, and he decided to follow the truck, hoping to find a police patrol car to stop the truck. Unknown to the men, the automatic dimmer on appellant's car was broken and the lights continued flashing from high to low beam on their own after this initial encounter. Romero testified that he did not intend to continue flashing the lights of the car and did not realize they were flashing. Romero testified he stayed three car lengths behind the truck at all times.

Dennis Finn, a concrete pumper, was travelling inbound on the Gulf Freeway going to work. Near the Woodridge exit, he noticed the pickup truck and the car. The car was tailgating the truck and was flashing its lights from bright to dim. Each time the pickup changed lanes, the car followed. Neither vehicle was driving recklessly or speeding. Finn concluded the car was attempting to get the truck to pull over, but he did not think it was trying to force the pickup off the road.

Ysidro Villarreal saw the pickup and car on the Southwest Freeway between the Hazard Street overpass and Loop 610. The car was travelling behind the truck, blinking its lights. Villareal thought the car was trying to run the pickup off the road or ram it from behind. The vehicles were not speeding; the pickup maintained its speed and stayed in the right hand lane. Near the Summit and the Weslayan exit, the two vehicles slowed to 20 or 25 miles per hour. Villarreal could see that the driver of the pickup was a woman. She was leaning forward slightly and driving with both hands on the steering wheel. To Villarreal, she looked "petrified."

Pablo Garcia and his partner, Jim Dunn, were Texas Highway Department employees assigned to the Courtesy Patrol on the morning of October 31, 1989. Shortly before 5:00 a.m., while travelling outbound on the Southwest Freeway near the Newcastle exit, they hit a pothole. They decided to measure it and stopped their vehicle on the freeway's inside shoulder, activating their red, blue, and yellow overhead emergency lights. As they were preparing to leave, Dunn called Garcia's attention to two vehicles approaching. The car was in the far right hand lane and the truck was in the second lane from the right. He thought the truck was trying to exit at Newcastle, but the car wouldn't let it. It looked like the vehicles "were fixing to hit one another...." Then the pickup left its lane and slowly drove diagonally across the freeway to the inside shoulder in front of Garcia's courtesy vehicle.

The pickup stopped and backed up toward the courtesy vehicle. Then the driver got out and started walking toward them "in a casual manner." She had nothing in her hands. As she reached the rear of her truck, appellant's car pulled up. The woman directed all her attention toward it, turned around, and got back in her truck. Two men got out of the car and ran up to Garcia's courtesy vehicle, saying they were police officers and the truck driver had been shooting at them earlier. They seemed scared and excited. One man had some kind of identification, but Garcia could not read it. Garcia did not believe they were police officers, and he was afraid of them. A third man, appellant, ran toward the woman holding a gun with both his hands, "coming right in front of her face." He did not see appellant display identification to the woman, although he heard appellant screaming the whole time that he was "a cop," "freeze," and "don't move." He never heard appellant tell the woman she was under arrest.

The woman tried to close the driver's door of the truck, but appellant got between her and the door and would not let her close it. Garcia saw appellant hit the woman in the face with his left fist, like one would hit another man. After being struck, the woman fell back in the seat and turned to her right, then back to her left. Then she got out of the truck. Someone yelled that she had a gun. As she left the truck, she shot appellant in the chest. Garcia thought she fired two or three times. Appellant returned the fire with his automatic pistol, firing "a whole bunch of shots." Appellant emptied his weapon, hitting Delaney four times.

Romero testified that when appellant approached the truck, appellant had his wallet in one hand and his gun in the other. Romero went around the passenger side of the truck and could not see appellant just before the shooting. He heard the shots and saw Delaney fall. Then appellant said that he had been shot and collapsed.

Appellant testified he was authorized to act as a police officer 24 hours a day; that a felony and a breach of the peace occurred when Delaney fired at his car; and that he had no choice but to follow the truck until they could have a marked police car stop it and apprehend the suspects. When the vehicles stopped, appellant ran to the trunk of his car to get his pistol. He described his emotional state then as being "excited," his emotions were "real high," and he was "scared, afraid of the confrontation." As he approached the truck, he had his wallet in one hand and his gun in the other and was yelling that they were "cops," the suspect was "under arrest," "freeze," and "don't move." Then, continuing to approach the truck on the driver's side, he put his wallet away.

He saw the driver's door open, but the driver did not leave the truck. Then, he saw the driver lean to the right and pick up something from the front seat. He thought it was a gun. He tried to grab the driver with his left hand, but she bit him. When he pulled back, she shot him in the chest. Appellant testified that when he was shot, he was "hurt" and "stunned." As he fell, he saw the driver get out of the truck, still pointing her gun at him. He stated, "That's when we both fired again." Appellant thought he had been shot four times. He was actually hit once.

Appellant was taken by Life Flight helicopter to a hospital, arriving at 5:48 a.m. Shortly after his arrival, his blood sample showed a .19% blood alcohol level.

In addition, the jury heard the following evidence: Valry Lewis, Delaney's boyfriend, testified that Delaney lived in Texas City. He and Delaney had spent Monday night, October 30, in Galveston. Delaney was in a good mood when she left...