Lopez v. State

• Decision Date: 30 March 1983
• Docket Number: No. 04-81-00278-CR,04-81-00278-CR
• Citation: 651 S.W.2d 830
• Parties: Gregorio LOPEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 830

651 S.W.2d 830

Gregorio LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00278-CR.

Court of Appeals of Texas San Antonio.

March 30, 1983.

Richard Langlois, San Antonio, for appellant.

Bill White, Dist. Atty., E. F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, for appellee.

Before CADENA, CANTU and TIJERINA, JJ.

OPINION

CANTU, Justice.

Appellant was convicted for the attempted murders of Hipolito Canales, (79-CR-0282), and Belinda Guerra (79-CR-0283), and for an aggravated assault on Leo Rodriguez (79-CR-0284). All three indictments alleged two prior felony convictions for enhancement under Tex.Penal Code Ann. § 12.42(d) (Vernon 1974). The enhancement counts were waived in 79-CR-0283. The jury sentenced appellant to 99 years in Cause No. 79-CR-0282, 20 years in Cause No. 79-CR-0283; and the jury finding the appellant to have been finally convicted in two prior felonies in Cause No. 79-CR-0284, the court then assessed punishment at confinement in the Texas Department of Corrections for life.

The incidents giving rise to these convictions, referred to in the local media as the "courthouse stabbing spree," ¹ occurred in the Bexar County Courthouse in downtown San Antonio, Texas. Hipolito Canales, an assistant Bexar County District Attorney, Belinda Guerra, a probationer and acquaintance of appellant, Leo Rodriguez, a court bailiff, and several others were waiting for Judge Al J. Klein to call the probation docket in the 224th District Court on the morning of January 26, 1979. Appellant entered the courtroom accompanied by Belinda Guerra, with whom, the testimony shows, he had just exchanged hostile words in the elevator. The two sat down on a bench in the rear of the courtroom. Judge Klein testified that he then saw appellant rise and deliver a blow to Guerra's solar plexus. As Guerra doubled over bleeding, the appellant ran from the courtroom and the judge ordered his bailiff, Rodriguez, to follow him.

Rodriguez testified that he chased appellant down the crowded hallway where appellant attempted to back into a crowded elevator while fending him off. When Rodriguez tried to grab the crouching appellant, appellant struck at him with a knife and cut him on the wrist and elbow.

Assistant District Attorney Canales, testified that he was sitting at counsel table preparing written stipulations when he glanced up and saw appellant strike Guerra and run out of the room. Canales followed appellant and Rodriguez out of the courtroom to the elevator. Thinking Rodriguez was just behind him, Canales approached appellant who was crouching in the elevator. Canales tried to grab appellant's lapel and then, in his own words; "I didn't see a knife, but I felt a blow to my chest here. And, I looked down and saw blood coming from my shirt. And I stepped back and he ran away."

Appellant ran down the stairs located near the elevators and made good his escape. Appellant was apprehended in the morning hours of the next day after taking several hostages captive at a local pawn shop.

Appellant urges sixteen (16) grounds of error in his appeal. In grounds of error 2, 3, 4, 5, 6, 9, 13A and 13B, appellant raises various contentions concerning the nature of the weapon used and alleged errors committed by the trial court in regards thereto. We, therefore, reiterate the pertinent evidence.

Although no one saw the knife when appellant struck Guerra, her treating doctor testified that she suffered a puncture wound to her abdomen and that she spent a week in the hospital recuperating from the wound. The doctor also testified that such a wound as Guerra suffered would be made by a blade or a sharp knife. A circumstantial evidence charge was given in the Guerra stabbing.

Rodriguez testified that he saw the knife he was cut with. He said the knife was 5 or 6 inches long. The knife penetrated Rodriguez's arm from front to back. Rodriguez's treating doctor stated the wound was 1 inch wide at the point of entry and 2 inches deep. The treating doctor also testified that the instrument used would cause impairment of the use of Rodriguez's arm. A bystander testified the appellant had a knife 4 to 6 inches long.

Canales did not see the knife, but saw blood spurting from his chest. Canales' treating doctor testified that the knife penetrated the pleura, pericardium, and the heart. The State introduced a photograph taken during the emergency surgery performed on Canales wherein the doctor displays Canales' heart, pointing out the puncture wound on the left ventricle.

The same doctor testified that the weapon used to stab Canales was capable of causing death or serious bodily injury.

In ground of error six, appellant challenges the sufficiency of the evidence to show the weapon used to stab Rodriguez was a deadly weapon. Viewing the evidence, and the inferences arising therefrom in the light most favorable to the verdict, we reject his challenge. The jury heard Rodriguez testify that the knife was 5 or 6 inches long at the time he was stabbed. Canales' doctor testified that the instrument injuring Canales was capable of causing death or serious bodily injury. All three stabbings occurred within seconds of each other. None of the witnesses testified that they saw appellant discard the knife he stabbed Guerra with. No knife was ever recovered and consequently no knife was introduced into evidence.

The jury was justified, from the evidence and testimony adduced, to conclude that the same knife was used in all three stabbings. There is therefore, sufficient evidence to show the weapon used in all three stabbings deadly. Cf. Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980). Ground of error six is overruled.

In grounds of error two and three, appellant contends that the trial court committed reversible error by failing to give a circumstantial evidence charge in the Rodriguez and Canales cases because there is no direct evidence as to the nature of the weapon involved.

The trial court is required to charge on the law of circumstantial evidence only when the State's case depends entirely upon circumstances for conviction. LeDuc v. State, 593 S.W.2d 678 (Tex.Cr.App.1979); Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979), cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980).

However, when the facts are in such close relationship to the main fact to be proved as to be equivalent of direct testimony, a charge on circumstantial evidence is not required. Rodriguez v. State, 617 S.W.2d 693 (Tex.Cr.App.1981).

Both the Rodriguez and Canales cases did not depend entirely upon circumstantial evidence. The fact that Canales, as the victim, did not see the knife used would not alone render all other proof on the nature of the weapon circumstantial, particularly when other witnesses directly viewed it. Nor would appellant be entitled to a circumstantial evidence charge merely because that element of the State's case rested upon circumstantial evidence if there is otherwise direct evidence in support of the factum probandum.

There is direct evidence that both Rodriguez and Canales were struck by appellant and that as a result of the blows each suffered serious wounds producing severe bleeding. This testimony constituted direct evidence of the assaults (the stabbings) upon both complainants. Flores v. State, 372 S.W.2d 687 (Tex.Cr.App.1963); Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404 (1952).

As to Rodriguez, the evidence was entirely direct since he testified that he saw the knife used by appellant to inflict his injuries. The assault upon Canales took place seconds after the assault upon Rodriguez. There is nothing in the record suggesting that anyone other than appellant was the actor. Cf. Deason v. State, 128 Tex.Cr.R. 581, 82 S.W.2d 672 (1935).

If we should be in error that the evidence as to the Canales assault did not constitute direct proof obviating the need for a circumstantial evidence charge, nevertheless, we believe the present case to fall within the rule of close juxtaposition, likewise dispensing with the need for such a charge. See Smith v. State, 161 Tex.Cr.R. 620, 273 S.W.2d 623 (1954), cert. denied, 349 U.S. 944, 75 S.Ct. 871, 99 L.Ed. 1270 (1954); Rodriguez v. State, supra. Appellant's second and third grounds of error are overruled.

In grounds of error four and five, the appellant contends that the charge concerning the aggravated assault on Rodriguez authorized a conviction for an offense not pled in the indictment and incorrectly applied the law to the facts. Appellant points out that the indictment alleges that appellant stabbed Rodriguez with a weapon "that in the manner of its use and intended use is capable of causing death and serious bodily injury." Tex.Penal Code Ann. § 1.07(a)(11)(B) (Vernon Supp.1981). The charge included the two definitions of deadly weapon contained in Tex.Penal Code Ann. § 1.07(a)(11) (Vernon Supp.1981).

Appellant objected to the portion of the charge now complained of in the following manner:

The defendant objects to Paragraph Number Two of the Court's charge because it is ambiguous, uncertain, misleading, contradictory, confusing and fails to correctly state the law applicable to the facts in evidence ... The defendant objects to Paragraph Number Three of the Court's charge because it is ambiguous, indefinite, misleading, contradictory, confusing and fails to correctly state the law applicable to the facts in evidence.

Article 36.14 Tex.Code Crim.Pro.Ann. (Vernon 1982) in pertinent part provides:

Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. [Emphasis supplied.] * * * *

The burden of bringing the court's attention to an alleged error in the charge is on the accused. Sattiewhite v State, 600 S.W.2d 277 (Tex.Cr.App.1980). Objections to a jury charge must be specific...