Gonzales v. State, 63964

• Court: Texas Court of Criminal Appeals
• Writing for the Court: McCORMICK; CLINTON
• Citation: Gonzales v. State, 689 S.W.2d 900 (Tex. Crim. App. 1985)
• Decision Date: 15 May 1985
• Docket Number: No. 63964,63964
• Parties: Raymond GONZALES, Appellant, v. The STATE of Texas, Appellee.

Page 900

689 S.W.2d 900

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

No. 63964.

Court of Criminal Appeals of Texas En Banc.

May 15, 1985.

R. Leonadis McKinney, III, Colorado City, for appellant.

Frank Ginzel, Dist. Atty., Colorado City, Russell L. Carroll, Asst. Dist. Atty., Sweetwater, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This is a direct appeal of a conviction for murder wherein punishment was assessed by the jury at fifty years' confinement. We will affirm.

Appellant challenges the sufficiency of the evidence, arguing the trial court erred in overruling his motion for new trial on the ground that the verdict rendered is contrary to the law and evidence. See Article 40.03, V.A.C.C.P. The standard by which we measure sufficiency of evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See, Benson v. State, 661 S.W.2d 708, 714 (Tex.Cr.App.1982) (Opinion on State's Second Motion for Rehearing).

The State's evidence at the guilt stage of the trial reveals that Raymond Gonzales and the deceased, Malva Forbes, lived together with their infant daughter and Jebby Forbes, Ms. Forbes' twenty-year-old son. On January 28, 1978, appellant Gonzales and Ms. Forbes arrived at their home in the early evening arguing. As the argument continued, the deceased told her son Jebby that Gonzales had been hitting her, whereupon Gonzales stated that he was going to shoot a cat that had apparently wandered into the house. Gonzales appeared intoxicated to Jebby Forbes, who left the couple arguing in the kitchen to go to the bathroom. While in the bathroom, Jebby heard a shot and his mother say, "He shot me." Jebby dashed to the kitchen to find his mother sitting in a chair bleeding from a wound in the chest. Appellant had a pistol in his hands and a "mean look on his face." He pointed the gun at Jebby, who ran into another room, closed the door, and held it while Gonzales attempted to force his way in. Shortly thereafter, Jebby wrestled the gun from appellant, who was attempting to make a phone call. The phone was ripped from the wall in the scuffle and the pair landed out in the back yard, where Jebby pointed the gun at appellant. Appellant retrieved a rifle from a bedroom and pointed it at Jebby as he fled the scene in a pickup truck. Jebby testified that he drove directly to his grandmother's house, where he reported the shooting to police.

Joe Urbanasky, a chemist from the Department of Public Safety, testified that he examined the blouse worn by the deceased and performed tests to show the distance of the shot by comparing the powder residue around the bullet holes in the blouse with powder residue from two controlled test shots. In Urbansky's opinion, the pistol was a distance of between four feet and seven feet away from the victim when fired, and it would have been impossible for both victim and assailant to have had contact with the pistol at the time it was fired due to the awful long distance to stretch. Ronald B. Richardson, an employee of the Firearms Section of the Scientific Crime Laboratory of the Texas Department of Public Safety, also testified. He opined that the bullet retrieved from the body of Ms. Forbes was shot from the appellant's weapon, a single action revolver. He also explained that in order to remove the cylinder from that particular handgun, the hammer had to be forward and the loading gate down. Richardson further testified that, in order to fire, the gun had to be manually cocked each time, and when the gun was cocked the loading gate would not come down to permit removal of the pin and cylinder. Bobby Sparks, a reserve sheriff's officer, also testified about the gun and explained that it could not be fired unless the hammer was fully cocked because only in the fully cocked position did a transfer bar come up between the hammer and the firing pin. Sparks explained that the hammer of the gun did not strike the firing pin directly, so the transfer bar had to be raised between the hammer and firing pin in order for the gun to be fired.

The State called three witnesses to testify about the previous relationship existing between appellant and the deceased. See, V.T.C.A., Penal Code, Section 19.06. The victim's mother testified that, while she was staying with appellant and her daughter during the previous year, appellant threatened the life of the deceased while he was drunk. Pamela Owens, the deceased's daughter, testified that within the previous year the couple had had frequent fights and difficulties in their relationship. She recalled an incident where appellant had beaten her mother, giving her a bloody nose and swollen jaw. The victim's sister testified that when she visited the couple at their home in July, 1977, an argument ensued over shooting a pig during which appellant got out his gun, pointed it at the deceased and said, "Shut your goddamn mouth, or I will shoot you."

Gonzales testified in his own behalf and related that he did beat the deceased during one incident but the beating occurred after she had threatened to kill him. According to appellant, on the day of the shooting he drank very little but Ms. Forbes was drunk. He and Ms. Forbes were arguing over Jebby leaving marihuana seed and "roach" butts in his car. Ms. Forbes was cursing him so he told her to go to bed. He took her to bed and laid her down. He wanted something to do with his hands so he got up and took the gun from the chest of drawers. He was cleaning the gun in the kitchen when Ms. Forbes entered, still arguing with him. She said, "You goddamn son-of-a-bitch Mexican, I hate you." She talked to him like that on many occasions, he testified, and at the time he was angry and upset but he was not upset to such a degree that he wanted to hurt her.

The shooting occurred, according to appellant, while he was trying to remove the cylinder from the weapon in order to clean it. He testified that he was sitting at the kitchen table with the gun. He stood up with the gun and Ms. Forbes stood up too. He had the hammer back to pull the cylinder out. When she reached for him to try to get the gun away from him, he pushed her. She tripped over a rug and fell toward him. The gun went off. She was almost right on him when the gun went off. Gonzales attempted to refute Jebby's version of the events immediately after the shooting. He testified that he pointed the gun at Jebby Forbes to show him that he did not think it was loaded and Jebby ran to his bedroom. Appellant then attempted to use the phone to call the police. Jebby grabbed appellant from behind as he was dialing the number and wrestled him out the back door and proceeded to get the gun away from him, pointing it at Gonzales. Gonzales testified that he retreated to his bedroom to get his car keys. After Jebby left, Gonzales drove to a friend's house, but no one was home. He then went to the home of Jack Autry, told Autry that he had accidentally shot Ms. Forbes and asked Autry to call the police. When Gonzales returned to the house with Autry, he was taken into custody by police.

The State chemist's testimony indicating that the victim was from four to seven feet away from the gun when it fired and the ballistic investigator's testimony concerning the inability of the murder weapon to fire unless the hammer was completely cocked directly contradict appellant's assertion that the shooting was an accident that occurred while appellant was trying to clean the weapon. It is also significant that the officers who first arrived at the scene testified that there was no gun cleaning articles on the kitchen table when they arrived, not even the screwdriver appellant claims to have been using to initial the gun. The discrepancies between the appellant's version of the shooting and the evidence presented by the State, together with the testimony of Jebby Forbes about the argument prior to the shooting and conduct of appellant immediately afterwards, render it wholly rational for a jury to conclude that Raymond Gonzales knowingly caused the death of Ms. Forbes by shooting her with a gun, as charged in the indictment. We hold the evidence sufficient to show murder. Compare Foster v. State, 639 S.W.2d 691 (Tex.Cr.App.1982).

Appellant received a charge from the court on voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide. He claims on appeal, however, that he was essentially denied a proper charge on the defensive issue of voluntary manslaughter because the statutory definition of "adequate cause" submitted in the charge of the court is void due to impermissible and unconstitutional vagueness. We disagree.

V.T.C.A., Penal Code, Section 19.04(c), provides:

" 'Adequate Cause' means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection."

We perceive no violation of due process in the Legislature's failure to specifically define the...