Martinez v. State, 50925

• Decision Date: 11 February 1976
• Docket Number: No. 50925,50925
• Citation: 533 S.W.2d 20
• Parties: Cruz MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 20

533 S.W.2d 20

Cruz MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 50925.

Court of Criminal Appeals of Texas.

Feb. 11, 1976.

Norman Arnett, Rotan, for appellant.

Frank Ginzel, Dist. Atty., Colorado City, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment is imprisonment for 11 years.

In several grounds of error the appellant asserts that reversal of the judgment is required because: (1) the evidence is insufficient to sustain his conviction; (2) the court erred in refusing to admit a statement made by Faustino Chapa before his death; (3) there was jury misconduct.

The appellant argues that peritonitis resulting from improper medical care was a concurring and intervening cause of the deceased's death; therefore, the evidence is insufficient to show beyond a reasonable doubt that the deceased's death was caused by a knife wound inflicted by the appellant.

The jury was instructed that:

'A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient.' See V.T.C.A. Penal Code, Sec. 6.04(a).

Further, this instruction was applied to the facts of this case. A part of that instruction was that:

'. . . and that conduct, if any, of Cruz Martinez, Jr. in cutting and stabbing the said Faustino Chapa with a knife, if he did, was clearly insufficient to produce the death of Faustino Chapa, or if you have a reasonable doubt thereof, then you should find the defendant not guilty of the offense of murder . . .'

As evidenced by its verdict, the jury failed to find support in the evidence that peritonitis resulting from improper medical care was clearly the cause of the deceased's death and that the knife wound inflicted by the appellant was clearly insufficient to cause the deceased's death. We are unable to say that the jury's verdict is not supported by that evidence.

The evidence shows that Faustina Chapa was stabbed by the appellant at about 11:45 p.m. on Saturday, February 9, 1974; Chapa was taken to a hospital, and he died four days later.

Dr. C. M. Callan testified that the cause of the deceased's death was '. . . acute peritonitis, and shock, from infection, as a result of a stab wound that penetrated the bowel.'

Dr. Callan also testified 'Q. Then as I understand it, sir, and your testimony there appeared to be a knife wound in the colon, and that ultimately caused his death?

'A. Right.'

Dr. Bill G. Brooks, a forensic pathologist, testified he performed an autopsy on the body of the deceased to ascertain the cause of death. He further testified:

'Q. All right. Thank you, Doctor. Doctor, can you tell us, and the jury here, the cause of death of Mr. Faustino Chapa, in sequence?

'A. . . . Now, we had a healthy man to start with. And he received stab wounds, one of which was inflicted in the right lower quadrant of the abdomen which penetrated the bowel. The patient then received medical care, and was operated upon. And, apparently, complications therefrom were fairly extensive. Now you have to appreciate the fact that once the bowel is penetrated, that the bacteria and the inconsequential organisms, provided they are obtained inside the bowel, escape into the abdominal cavity, and the result is called peritonitis--or irritation of the abdominal cavity, which can kill, and does. And it would appear to me that is what happened in this case: That the patient had a penetration of the bowel, this was treated unsuccessfully medically, and the patient died of peritonitis.

'Q. Doctor, would this be--this peritonitis, under these conditions--would this be a natural consequence of such a stab wound as you found here?

'A. Yes, sir.'

We find that the jury's verdict is supported by sufficient evidence.

We next consider the appellant's contention that the testimony of Hortencia Yanez was erroneously excluded from evidence.

The witness Yanez visited Chapa in his hospital room between 6:00 and 7:00 p.m. on Sunday. Her testimony was: he was under medical treatment--he had tubes in him--Chapa was not delirious--he recognized me--he looked bad--said he felt bad and was thirsty--he didn't talk about pain--I asked him who had cut him--he told me it was Anasticio Campos and not Martinez. Yanez again visited Chapa in the hospital on Tuesday between 5:30 and 6:00 p.m. There was blood all over the linen, the pillow, and his gown; his feet were hanging off the bed. Chapa died between 1:00 and 1:30 a.m. on Wednesday.

The appellant argues that Yanez's testimony that Chapa told her he had been cut by Campos and not Martinez was admissible as an exception to the hearsay rule because it was either a dying declaration or a res gestae statement. We disagree.

The requirements for the admission of a dying declaration are statutory. Article 38.20, V.A.C.C.P. This statement does not qualify as a dying declaration under the provisions of the statute because the evidence does not show that at the time the alleged statement was made Chapa was conscious of approaching death and believed there was no hope for recovery. Cf. Munoz v. State, 524 S.W.2d 710 (Tex.Cr.App.1975).

Declarations...