Martinez v. State, 20163.

• Decision Date: 17 May 1939
• Docket Number: No. 20163.,20163.
• Citation: 140 S.W.2d 187
• Parties: MARTINEZ v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W.2d 187

MARTINEZ v. STATE.

No. 20163.

Court of Criminal Appeals of Texas.

May 17, 1939.

Rehearing Denied May 22, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

Ascension Martinez, alias Chon Martinez, was convicted of murder, and he appeals.

Affirmed.

Ramon L. Longoria, of McAllen, and Kennedy Smith, of Raymondville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

This is the second appeal of this case, the opinion in the first case being found in 134 Tex.Cr.R. 180, 114 S.W.2d 874. In each instance the penalty was death.

In the latter part of December 1934 the decomposed body of a man was found stranded in the Rio Grande River, with a cover for a Model T Ford transmission case tied to the body by means of a rope. This man's name was not known, but the body evidenced a death by violence, as shown by bruises and fractures of the skull, as well as numerous wounds on the body. There were certain tattoo marks over the body which, together with his height, weight and other characteristics, finally made up the allegations in the indictment relative to his identification, which was never made more definite. Appellant was not apprehended for about two years thereafter, it appearing from the record that he had changed his residence from this State to Mexico, and was undoubtedly a fugitive.

Upon the trial of this case it was shown that this deceased person and a woman, presumptively his wife, were temporarily present in a house belonging to a woman named Teresa Chapa, and were last seen alive by this Chapa woman, when one Placido Handy came to her home and took this man and woman away with him in a car. These unknown persons seemed to be desirous of crossing out into Mexico, and, as shown by the testimony, Placido Handy, together with five others of Mexican extraction, one of whom was appellant, had previously entered into a conspiracy for the purpose of robbing and killing this man and woman, and disposing of their bodies. The conspiracy was carried out, if the testimony is to be believed, in a most brutal manner. The woman was raped nine times, despite her pleas to be killed rather than to be thus treated. The man was beaten, shot, cut and stabbed; the woman, after she had satisfied the lust of these conspirators, was killed by them by beating, shooting and cutting her, and both bodies, weighted with pieces of an old automobile engine, were thrown into the Rio Grande River. Some six weeks thereafter the man's body was found lodged in the river with its weight still attached, but so far as this record shows the river still keeps its secret as to where the woman's unsepulchred body lies.

The record is voluminous and contains many bills of exception that evidence great diligence and labor on the part of appellant's attorneys in their presentation of this case in both the trial court and this court. The questions presented can be finally relegated, however, to practically a few propositions, which we will proceed to discuss.

The first proposition relates to a change of venue, which was asked in a motion properly filed, and at a hearing thereof a large amount of testimony was adduced. This motion was by the trial court overruled, and his action thereon is brought before us for review in bill of exceptions No. 1, which occupies a major portion of the transcript. This bill of exceptions and the testimony adduced thereunder is identical with bill of exceptions No. 1 in the case of Placido Handy v. State, 138 S.W.2d 541, opinion handed down on April 19, 1939, the same testimony being offered in that case and this instant one. We wrote at length in that case and endeavored to analyze this testimony in a synopsis form, to which opinion we here refer.

It seems in this case that eighty-nine prospective jurors were interrogated, thirty-one of whom were excused because of having formed an opinion; the State used eleven of its peremptory challenges, and the appellant exhausted all of his challenges and was by the court allowed two extra challenges, which were exercised. It seems from the record that no talesmen were required, the jury being finally selected from the original venire. We see no good reason for further going into the matters complained of in this bill, and, in the interest of brevity, we refer the interested reader to what we said, relative to the motion for a change of venue, in the companion case of Handy v. State, 138 S. W.2d 541, for our views in this matter, and on the strength of that case as authority we overrule this bill of exceptions No. 1.

Bill of exceptions No. 2 presents the following question for our review: The court in its charge to the jury properly embodied therein a fair and legal charge relative to a confession purportedly made by appellant wherein he implicated himself in this homicide, and which to a large degree was corroborative of the testimony given by one Jose Rodriguez, a self-confessed accomplice, who testified fully relative to these gruesome details. There was an objection leveled by appellant's attorneys at such charge, and in place thereof appellant requested the giving of the following charge: "You are instructed as a part of the law of this case, that there has been admitted in evidence a written statement made by the defendant while under arrest and in the custody of officers. In this connection you are instructed that unless you find and believe from the evidence, beyond a reasonable doubt, that the written statement was made by the defendant of his own free will and accord, without any force, threats or coercion on the part of anyone, and not as a result of any fear of bodily harm, and unless you further find and believe from the evidence, beyond a reasonable doubt, that before such statement was made, the defendant was warned by the officers before whom such statement was made that he did not have to make any statement at all, and that any statement made by him may be used in evidence against him on the trial of the offense with which he stands charged, then you must acquit the defendant and say by your verdict `not guilty.'"

The basic difference between such paragraphs in the court's charge being the fact that the court charged the jury that unless they believed that such confession was freely and voluntarily made, under no persuasion nor promises, and after a proper warning, then they should disregard same, and went no further therein. However appellant's requested charge went further, and, had same been given, it would have directed the jury, in the event that they found such confession to have been improperly made by appellant, that they should acquit him, and say by their verdict not guilty. This element of an acquittal was based upon the proposition, as alleged by appellant's attorneys, that there was no corroborative testimony of any kind or character in this case as to the self-confessed accomplice's statement except the confession of appellant, and if the same was not considered by the jury under the court's instruction relative thereto, then appellant was entitled to an acquittal, because there was no corroboration of the accomplice's testimony.

We confess this proposition has caused us some concern. Our attention has been called to the case of Ball v. State, 118 Tex. Cr.R. 579, 39 S.W.2d 619, wherein it appears that this court held, in substance, the doctrine laid down by appellant in this bill of exceptions; and that is where a confession has been introduced in evidence, which confession was claimed to have been involuntarily made, and the question relative thereto has been submitted to the jury, and there being no further corroboration than the confession of the testimony of an evident accomplice, the court should instruct the jury to acquit, in the event they found the confession to have been improperly obtained. We find that such a proposition has also been laid down in Melton v. State, 127 Tex.Cr.R. 399, 77 S.W.2d 243. We do not think, under the circumstances of this case, that such is a sound proposition of law. In the first place, we notice that the court correctly instructed the jury upon the law of accompliceship; that the witness Joe Rodriguez was an accomplice, and that it was necessary not only that his testimony be believed to be true, and that it showed appellant's guilt, but also that there should be other and further testimony tending to connect the appellant with the commission of the offense, and unless they thus found, that they could not convict the defendant, and that finally they should acquit the appellant unless they believed him guilty beyond a reasonable doubt. The court also charged that they should discard the purported confession of appellant, and not use the same for any purpose, unless they believed same to have been voluntarily made without coercion of any kind, and not even then unless they found other separate and independent evidence outside of and independent of such statement corroborative thereof in some material matter tending to connect the defendant with the killing, if any, and under the facts and charges thus given, unless the contrary be shown, we think it may be presumed that the jury obeyed the court's instructions therein.

We are further impressed with the thought that the court should not have singled out this one special thing and framed his charge thereon to the effect that a failure to consider one portion of the testimony should result in a verdict of acquittal upon the jury's part. Such an instruction, we think, would have been upon the weight of the testimony. Suppose the testimony relied upon as a corroboration of the accomplice had been given by the witness A.B. Would the court have been justified in instructing the jury that unless they believed the witness A.B., they should acquit the appellant. Carrying the illustration still further, suppose corroborating testimony was given by both A.B....