Medrano v. State

• Decision Date: 11 December 1985
• Docket Number: No. 08-84-00340-CR,08-84-00340-CR
• Citation: 701 S.W.2d 337
• Parties: Jose Estrada MEDRANO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 337

701 S.W.2d 337

Jose Estrada MEDRANO, Appellant, v. The STATE of Texas, Appellee.

No. 08-84-00340-CR.

Court of Appeals of Texas El Paso.

Dec. 11, 1985.

Charles Mallin, El Paso, for appellant.

Steve Simmons, Dist. Atty., El Paso, for appellee.

Before WARD, OSBORN and SCHULTE, JJ.

OPINION

WARD, Justice.

This is an appeal from a conviction of murder. The jury assessed punishment at ninety-nine years confinement in the Texas Department of Corrections. We reverse and remand.

The sufficiency of the evidence is not challenged and the facts will be referred to only with the discussion of the grounds of error. Appellant's first ground of error complains of the action of the trial court in overruling his motion to quash the indictment, in that the indictment failed to allege the instrument used to stab the deceased and that Appellant was not given notice of the particular offense with which he was charged. The relevant part of the indictment in this cause stated that the defendant "did then and there unlawfully, intentionally and knowingly cause the death of an individual, NICHOLAS MOTA by stabbing the said NICHOLAS MOTA with a sharp instrument, ...." As to this portion of the indictment the Appellant, prior to trial, filed a motion to quash the indictment complaining that the indictment failed to allege in plain, intelligent language the instrument alleged to have been used to stab Nicholas Mota and therefore failed to inform the defendant of the nature of the accusation against him. The motion to quash was overruled by the trial court.

The traditional rule was that a murder indictment was required to charge the means employed in the commission of the offense and that an indictment which charged that the accused killed the deceased with a sharp instrument without charging the kind or character of the instrument used was insufficient. If the means used to commit the offense was unknown, then that must be stated in the indictment and it must be then alleged that the nature of the instrument was to the grand jury unknown. Gentry v. State, 172 Tex.Cr.R. 345, 356 S.W.2d 793 (1962). The extreme was reached, of course, in Northern v. State, 150 Tex.Cr.R. 511, 203 S.W.2d 206 (1947) where the kicking and stomping indictment was held fatally defective as it omitted the allegation that the act was by the defendant's feet.

A fair reading of Vaughn v. State, 607 S.W.2d 914 (Tex.Crim.App.1980), which "overruled" the Northern case, compels one to believe that the manner and means requirement will no longer be stretched to the point that it previously reached. The indictment before us sets forth the manner of death as stabbing and the means used as being a sharp instrument. We hold that a sharp instrument is sufficient and that the further allegation that the sharp instrument was unknown to the grand jury was unnecessary.

Our opinion is strengthened by Bowen v. State, 640 S.W.2d 929 (Tex.Crim.App.1982). There, the court was discussing an allegation in a murder indictment that the accused beat the victim with his hands and fists and if that allegation constituted an allegation of an act clearly dangerous to human life under Tex.Penal Code Ann. sec. 19.02(a)(2). There the court stated: "[i]t is sufficient simply to allege the elements of the offense without specifying the manner and means used to commit the murder." What is required then is contained in Article 21.11, Tex.Code Crim.Pro.Ann.

An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; ...."

Appellant's Ground of Error No. One is overruled.

In Appellant's second ground of error, he asserts that a statement made by the deceased was inadmissible as hearsay and did not fall under the dying declaration exception. Article 38.20 of the Texas Code of Criminal Procedure states four preconditions which the State must prove before a hearsay statement will be admissible as a dying declaration. The Appellant challenges only one of these conditions which states:

That at the time of making such a declaration he was conscious of approaching death, and believed that there was no hope of recovery.

The hearsay statement was entered into evidence through Officer Menchaca of the El Paso Police Department. He testified that the deceased was conscious, excited, and "in a lot of pain". He further testified that the victim insisted on seeing his wife and children, and that a priest gave the deceased his last rites. Dr. Sippo, the attending physician, stated that at 1:50 a.m. on June 10, 1984, when the deceased was admitted to the hospital, he was covered with mud and blood and was in a serious condition. Although at that time Dr. Sippo believed the deceased would survive, he died the next day at 11:30 p.m.

It is not essential that the declarant state in specific terms that he is conscious of impending death. Moore v. State, 127 Tex.Cr.R. 637, 78 S.W.2d 189, 193 (1935). One circumstance which is very relevant is the apparent character of the wound. 1A Ray, Texas Law of Evidence, sec. 976 (Texas Practice 1980); Samaniego v. State, 633 S.W.2d 915, 916 (Tex.App.--El Paso 1982, no pet.). In the case at bar, the stab wounds of the deceased were very extensive; his eyes, chest, stomach and back all had serious wounds and there were fifteen to twenty wounds on his arms and hands. In addition there were major wounds to the neck, at least one of which entered into the trachea. This, coupled with the facts that he was in great pain, asked for his wife and children and received last rites, indicates that the deceased was in fear of impending death. Appellant's Ground of Error No. Two is overruled.

In Appellant's Grounds of Error Nos. Three and Four, he claims that it was improper for the State to call Christina Cadena to the stand, and that it was improper for the trial court to allow her to testify because she was Appellant's legal wife and incompetent to testify under Article 38.11, Tex.Code Crim.Pro.Ann. Article 38.11 reads in part:

The husband and wife may, in all criminal actions be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution.

The State maintains that it would be against public policy to allow the Appellant to utilize Article 38.11 since Appellant married Christina Cadena, the principal witness to the murder, five days in advance of the trial. The State contends that it was the Appellant's intent to marry the principal witness to preclude her from testifying. It is a settled rule that the intent for the marriage or time of the marriage is irrelevant. So long as the accused is married to the witness at the time of trial she is incompetent to testify. Cole v. State, 92 Tex.Cr.R. 368, 243 S.W. 1100 (1922); Moore v. State, 45 Tex.Cr.R. 234, 75 S.W. 497 (1903); Miller v. State, 37 Tex.Cr.R. 575, 40 S.W. 313 (1897).

The State further contends that Appellant cannot utilize Article 38.11 because he was married to Carmen Ramirez Medrano. If Appellant was already legally married at the time of his marriage to Christina Cadena, then the second marriage was void and Christina Cadena was competent to testify. Johnson v. State, 122 Tex.Cr.R. 224, 54 S.W.2d 140 (1932); Young v. State, 49 Tex.Cr.R. 207, 92 S.W. 841 (1906).

It is clear that the State proved that the Appellant was married to Carmen Ramirez Medrano. Carmen Ramirez's brother testified that his sister and Appellant were married. He stated that he recognized a marriage license as belonging to his sister and Appellant. This marriage license was in the name of Julian Ramirez and Carmen Ramirez and showed that they were married on June 17, 1983. The brother also testified that his sister and the Appellant had two children and that he had their custody at the time of trial. Martina Mota, a friend of the Appellant and Carmen Ramirez Medrano, testified that she accompanied the Appellant and Carmen Ramirez Medrano when they were married. She further testified that the Appellant told her that he was married to Carmen Ramirez Medrano. Since the marriage license in question was in the name of Julian Ramirez and Carmen Ramirez, the State called Allan Keown, a handwriting expert, who testified that the signature on the marriage license, standing in the name of Julian Ramirez, was signed by the Appellant. The State then called Rebecca Mesa, the El Paso County Deputy District Clerk, who testified that no record existed of either Julian Ramirez or Carmen Ramirez having obtained a divorce since the beginning of 1983 in El Paso County.

No evidence was...