Guzmon v. State

• Citation: 697 S.W.2d 404
• Decision Date: 02 October 1985
• Docket Number: No. 69326,69326
• Parties: Jose Moises GUZMON, A.K.A. Jose Moises Romero, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 404

697 S.W.2d 404

Jose Moises GUZMON, A.K.A. Jose Moises Romero, Appellant, v. The STATE of Texas, Appellee.

No. 69326.

Court of Criminal Appeals of Texas,

En banc.

Oct. 2, 1985.

Robert C. Dunn, Coriscana, for appellant.

Patrick C. Batchelor, Dist. Atty., Corsicana, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder, where the punishment was assessed at death by the court following the jury's verdict of guilty and affirmative answers to the special issues submitted under Article 37.071, V.A.C.C.P. See V.T.C.A., Penal Code, § 19.03.

On appeal the appellant contends the trial court erred in allowing the prosecutor to ask questions of him on cross-examination that were based on hearsay and not supported by admitted evidence. Appellant also contends the trial court erred in permitting the prosecutor to ask questions about a statement of a co-conspirator for the purpose of impeaching the appellant, and in permitting the prosecutor to inquire about appellant's desertion from the Salvadorian Army. In another ground of error appellant challenges the sufficiency of the evidence to sustain the conviction in that the State failed to prove the murder was committed in the course of a robbery or attempted robbery as alleged. Appellant lastly complains the court erred in excusing certain prospective jurors because he was not allowed to examine certain jurors and because some prospective jurors were "excused generally for objection to the death penalty."

The record reflects that appellant shot and killed the deceased, Henry Spencer Finch, while he and two other men were in the process of taking Finch's automobile.

Brian Ingram, age 20, testified that on February 4, 1984, he was working in a grocery store and gas station (Fitzgerald Shell) in Navarro County. He related that about 1:30 a.m. appellant and two other Hispanic appearing men came to the store in a brown Datsun or Toyota automobile and asked to borrow wrenches to work on the car. He told them he had none and suggested they go across the street to the Exxon gas station. The brown automobile was driven to the Exxon station and it sounded to Ingram as if the car had mechanical problems.

Some 30 minutes later Ingram observed a cream-colored Ford Granada being driven into the Exxon station by a man he later learned to be Finch, the deceased. A little later he saw Finch and the Exxon station attendant, Sonny Webb, working on a headlight on the Ford. The three Hispanic men were standing nearby watching. Later Ingram saw Finch and Webb inside the station, and observed two of the Hispanic men get into the front seat of the Ford through the driver's door. Ingram then saw the appellant run from the station and get into the front seat of the Ford on the passenger side. At this point Ingram observed Finch with the driver's door open attempting to pull the man out from under the steering wheel. Then Ingram saw appellant lean across the man in the middle of the front seat and shoot Finch, who fell to the ground screaming. Ingram ran across the street and saw the Ford being driven out of the station. The police arrived shortly thereafter.

Albert Webb, Jr., testified he was the attendant at the Singleton's Exxon station at the intersection of Highway 287 at Interstate 45 in Navarro County on the date in question. At approximately 2 a.m. on February 4, 1984, appellant and two other Hispanic men drove a brown Toyota automobile into the station. He removed a broken spark plug from the automobile motor and water emerged. Webb told the men he could repair the Toyota for them. Later Finch, the deceased, drove his cream-colored Ford into the station and asked to have his headlights replaced. After replacing the headlights, Webb and Finch went inside the station. Finch paid Webb. While they were talking, appellant came through the door with a gun and demanded Finch's car keys. Finch said they were in the Ford and the appellant backed out the door. Finch tried to get out the door, but appellant held the door shut from the outside. Webb told Finch to let them have the car and he would call the police. As Webb was talking to the police over the telephone, he observed that Finch had gone outside, had the driver's door open and was trying to pull the "driver" out of the car. At this juncture Webb saw appellant on the passenger side of the front seat raise his gun and shoot Finch. Webb then observed the Ford being driven out of the Exxon station. Webb again called the police to send an ambulance.

Corsicana Police Officer Raymond Rosas testified he went to the Exxon station on the date in question and found a 1977 brown Toyota. After checking the registration and tracing the vehicle through three different automobile dealers, he discovered the appellant Romero was the last purchaser. After talking to appellant's wife at the Sheraton Inn in Dallas, Rosas in company of Dallas police officers went to Gateway apartments at 211 Kitt Lane in Dallas. It was a different place than where appellant had stayed previously. Upon the officers' arrival at the apartment, appellant ran from the apartment, was pursued and was apprehended. After appellant was placed in a patrol car, Rosas looked into the car to make an identification, at which time appellant voluntarily asserted in Spanish "I shot him."

Dr. Nina Hollander, Medical Examiner in Dallas County, performed the autopsy on the deceased. She testified the cause of death was a gunshot of the trunk of the deceased's body. The bullet entered the chest and went through the liver, diaphragm and right lung, resulting in considerable hemorrhaging.

The appellant, testifying in his own behalf, stated his name was Jose Moises Romero and he was 21 years old, married and that he had three children. He had come to this country from El Salvador and lived in Dallas. He denied possessing a gun or shooting the deceased.

His testimony is somewhat disjointed principally because he was allowed in large measure to testify in a narrative manner through the use of a Spanish language interpreter. ¹

Appellant explained that at the time in question that he was drinking, and that his friends, Lewis Cabrera and Jesus Polasko, ² took advantage of him. It was apparently decided, by the three on the spur of the moment, to drive that night from Dallas to Houston in appellant's car. Cabrera was driving. Appellant stated he was drunk and asleep. Appellant later woke up because of the noise the car was making. They sought help at a Shell station with Polasko asking for wrenches. They were directed to the Exxon station across the street. There the attendant tried to help them, but he could not repair appellant's car. While they were there a man in a yellow car drove into the station. While the attendant was working on the yellow car's headlights, appellant saw Cabrera and Polasko inside the gas station "trying to pump ... the machines of business." Appellant told them to quit because if the police were called they would be in more trouble. He was already "mad" because they had "messed up" his car. As appellant was sitting in his car, Cabrera came to the car and told him "this man has got a lot of money in his billfold," apparently meaning the man in the yellow car. Later appellant saw Cabrera and Polasko run from inside the station and get into the yellow car. Appellant realized something was wrong, but without thinking felt he had to go with them, that he had no choice, that he had to return to his pregnant wife. He ran to the yellow car, got in the front seat in the middle and "then Polasko came." Appellant then saw that the man who drove the yellow car into the station was trying to pull Cabrera from the driver's seat. All appellant remembered then was a gunshot, and then yelling and screaming. Cabrera couldn't "get the car to go," so appellant drove the yellow car to Dallas. Appellant testified he "knew we had to leave. You all will have to understand that you could not stay there." He denied the shooting or even having a gun. He did not testify who did have a gun or who fired the shot.

Appellant related he could not sleep well, and his wife suggested they move, which they did. On the day of his arrest someone called him and told him the police were talking to his wife at the hotel where she worked. He knew when the police arrived they were "coming for me," and he ran because he was scared, and it was "only natural." He related when apprehended he put his hands up, and the police had no need to throw him to the ground and to kick and beat him as they did. Some four or five days after he had been taken to Corsicana he was taken to the hospital there for treatment.

Appellant was the only defense witness.

At the conclusion of the testimony at the guilt stage of the trial the jury returned its verdict finding appellant guilty of capital murder.

Appellant's first two grounds of error are directed to his cross-examination by the District Attorney. Several observations about the cross-examination of a defendant in a criminal case are here in order.

"When the defendant in a criminal case voluntarily takes the stand and testifies in his own behalf, he occupies the same position and is subject to the same rules of cross-examination as any other witness. He may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of the defendant, except when there are overriding constitutional or statutory prohibitions; for example, where a statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the same case, or his failure to testify on a former trial, or a confession made while he was in jail without his having been first cautioned that it might be used against him." 21 Tex.Jur.3rd, Criminal Law, ...