Herrera v. State
| Decision Date | 07 October 1953 |
| Docket Number | No. 26511,26511 |
| Citation | 261 S.W.2d 706,159 Tex.Crim. 175 |
| Parties | HERRERA v. STATE. |
| Court | Texas Court of Criminal Appeals |
M. C. Gonzales, Theo. P. Henley, San Antonio, for appellant.
Austin F. Anderson, Criminal Dist. Atty., San Antonio, Richard J. Woods, Asst. Criminal Dist. Atty., San Antonio, Wesley Dice, State's Atty., Austin, for the State.
The offense is murder; the punishment, life.
On the night of the homicide, appellant, together with his fellow employees Garcia, Barrera, Rabago and Palomo, as was their custom, repaired to a tavern at the close of their day's labors. During the course of the evening Sanchez and Smith became attached to the group. Each of these young men testified for the State, and their testimony may be collectively summarized.
The witnesses stated that while at the Penjamo Bar Garcia and Palomo separated themselves from the group and went to El Safero Bar in order to use the telephone. Upon their return they reported to appellant and the remainder of their group that some of the boys at El Safero had gathered around Palomo and 'looked tough.' Whereupon, appellant stated, according to the different witnesses, that 'nobody was going to make any trouble for them as long as he was with them,' and that 'we will go over there in a little while,' and 'this is my neighborhood, we will see about this,' and 'if anybody made trouble in his neighborhood he would not let them get away with it,' and 'well, let's go over there, I think I know the boy, I'll go talk to him.' Without further comment the group went to El Safero.
Upon arriving at El Safero some of the young men made preparations to shoot pool; and appellant sought out one Gonzales, secured a pistol from him, walked up to the bar where the deceased was watching television, cocking the pistol as he went; and when the deceased turned around appellant fired the fatal shot into his chest. According to the witnesses, deceased was unarmed and made no threatening gesture toward appellant.
After having fired the shot, appellant, while retaining the pistol in his hand, demanded a cigarette and required some one to light it for him. At this juncture, according to some of the witnesses, appellant said, 'Who is next?' As they were leaving El Safero appellant stated that this 'was not the first boy he had ever shot,' and that he had had some trouble with the deceased in the past, and that he had shot the deceased in the heart.
Eddie Gonzales, testifying for the State, stated that approximately a year before the homicide the appellant had told him that he had had trouble with the deceased and that he intended to kill him. Gonzales stated that a week before the night in question he had borrowed a pistol from the appellant; that he was at the Penjamo Bar when two of the party returned from El Safero; that appellant asked him if he had the pistol; and that when he replied in the affirmative appellant told him to go to El Safero. Gonzales stated that when appellant arrived at El Safero he gave him the pistol, and appellant walked over to the bar and shot the deceased. The court charged the jury that Gonzales was an accomplice as a matter of law.
There were several other witnesses for the State, but their testimony was cumulative of that set forth above.
Appellant, testifying in his own behalf, stated that deceased had assaulted him with a pistol some time before the homicide; that a threat made by deceased had been communicated to him; and that when he went up to the bar the deceased turned and said, 'I am going to cut you'; whereupon, he shot the deceased.
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