Gonzales v. State

• Decision Date: 10 April 1968
• Docket Number: No. 41201,41201
• Citation: 426 S.W.2d 859
• Parties: Vidal M. GONZALES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 859

426 S.W.2d 859

Vidal M. GONZALES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 41201.

Court of Criminal Appeals of Texas.

April 10, 1968.

Culter & Epps by Ray Epps, Houston, for appellant.

Carol S. Vance, Dist. Atty., Joseph W. Doucette and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment, eight years.

Appellant's first ground of error is that the court erred in charging the jury on murder with malice because the facts did not warrant such a submission. Though there is no conflict in the testimony, a rather detailed recitation of the facts is required. Four men were involved in this difficulty which occurred at midnight on a Saturday in the down town section of the city of Houston. Deceased and his companion Horn were traveling in a 1966 Mustang automobile. Appellant and his companion Guzman were riding in a much older automobile. Deceased and Horn challenged appellant and Guzman to a 'drag' and when they failed to comply, deceased and Horn addressed some opprobrious epithets toward appellant and Guzman. At this juncture appellant secured from the floorboard an M--1 rifle which he had recently loaded, and fired two shots in the direction of the Mustang. One shot hit the top of the rear fender of the Mustang and exited in the floorboard of the trunk. The trajectory was downward and would have hit a passenger in the Mustang if it had been fired when the two automobiles were abreast. The second shot entered the right front window vent of the Mustang, shattered, and fragments of the bullet creased Horn's head and struck deceased in the neck and head. The Mustang then crashed into a warehouse wall, and the appellant's automobile continued on its way. Sometime thereafter Guzman threw the M--1 rifle into the bayou. When being questioned by detectives, appellant reported to them that the shots which hit the Mustang had been fired from an automobile which was ahead of the one he was driving. Horn was asleep at the time and remembered nothing of what happened.

Guzman testified for the State and appellant in his own behalf, but there is no conflict in their account of the transaction. They both stated that just prior to the time appellant fired the two shots he stated that he intended to scare the occupants of the Mustang.

The main thrust of appellant's contention is that since all the testimony which was available showed that appellant stated that his purpose in firing the rifle was to scare the occupants of the Mustang, this is a case of simple assault only and that therefore his conviction for murder with malice cannot be sustained. He relies in main upon the opinions of this Court in Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943, and Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626. Parks was an off-duty peace officer who was repeatedly assaulted without provocation by an ex-prize fighter. Parks fired twice, once in the air, and it was only after the deceased failed to heed Parks' entreaty not to hit him any further that Parks shot directly at the deceased. Two able judges of this Court found that malice on the part of Parks had not been shown.

Though not without some difficulty, we are able to distinguish the facts in Parks with those in the case at bar. At the outset we point to the fact that neither the deceased or Horn made any assault upon appellant. The most they did was to challenge appellant to a race and then curse him and his companion...