Morales v. State
| Decision Date | 31 December 1970 |
| Docket Number | No. 43357,43357 |
| Citation | 466 S.W.2d 293 |
| Parties | Israel MORALES, Brijido Pena and Juan Morales, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Pena, McDonald & Gutierrez, by L. Aron Pena, Edinburg, for appellants.
Oscar B. McInnis, Dist. Atty., Edinburg, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from convictions in a joint trial for murder. The punishments were assessed by the jury with Israel Morales receiving thirty years, Brijido Pena, twenty years and Juan Morales, ten years.
The facts are undisputed that Israel Morales killed Juan Ayala by stabbing him with a knife. It is contended that the evidence is insufficient to show that Brijido Pena and Juan Morales were principals and that the murder was with malice.
The record reflects that the appellants Israel and Juan Morales are brothers, and they with another brother Esequiel Morales and the appellant Brijido Pena were riding together in an automobile around Weslaco. At approximately 7:30 p.m., some thirty minutes before the killing they drove to a corner where three boys were singing some Spanish songs and made some remarks in an apparent attempt to provoke a fight. When the singers did not take offense, the appellants drove away.
At approximately 8:00 p.m., Juan Ayala (the deceased), an eighteen-year-old boy, was standing in a street talking to Maricela Rodriquez, his fourteen-year-old girlfriend, and her thirteen-year-old sister, Elma, when appellants drove by and yelled something at Ayala and the girls. Some ten minutes later they approached again and one of them yelled, 'Hey, you with the yellow shirttail,' to Maricela who was wearing a yellow shirt. Appellants then drove down the street and two of them got out and walked with two other girls for some six blocks.
Later the appellants returned to Juan Ayala and the Rodriquez girls, and one of the occupants of the car stated, 'You have too many girls,' and all of them started to alight from the automobile. Ayala said, 'Look, you guys, this is my girlfriend and this is my sister.' One of the appellants said, 'I don't care,' and the three of them started an unprovoked attack upon Ayala. Brijido Pena kicked and Juan Morales hit Ayala with his fists. Israel Morales stabbed Ayala with a fishing knife which had a three and a half inch blade, causing a puncture in the right wrist and one in the heart from which he died. 1
Maricela went to call the police and the appellants fled.
The officers did not learn the identity of the appellants until several days later. Appellants' automobile in which the group had been riding was found in Reynosa, Tamps., Mexico, where it was being prepared to be painted another color.
Israel Morales testified that he stabbed Ayala with the fishing knife. The other appellants did not testify. Wives of two of the appellants testified at the penalty stage of the trial that their husbands were good providers and had not been convicted of other offenses.
In the first ground of error, it is contended that the trial court erred in overruling the motions of Brijido Pena and Juan Morales for a severance to be tried separately from Israel Morales. Each alleged that a joint trial would be extremely prejudicial, because the defenses would be conflicting, and that confessions made by each would, if admitted, be prejudicial. It was also alleged that the actions of Israel Morales were independent of the others, and that the degree of guilt, if any, of the defendants would be diverse.
Article 36.09, Vernon's Ann.C.C.P., provides:
'Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.'
No statutory provision was violated because of the joint trial. No previous conviction against any of the appellants was offered in evidence. The allegation that their defense were conflicting was not borne out by the record. The question of whether Israel Morales was acting independently of the others was a fact issue submitted to the jury. The jury found all three guilty.
The appellant Israel Morales testified that he killed Juan Ayala with the knife and apparently attempted to take all the blame for the killing.
The grounds for severance relied upon were addressed to the sound discretion of the trial judge. Thornton v. State, Tex.Cr.App., 451 S.W.2d 898.
No abuse of discretion has been shown. The first ground of error is overruled.
In the second ground of error, complaint is made that the court refused to have a separate hearing before admitting into evidence oral confessions of the appellants.
No confession of either of the appellants was introduced or offered into evidence over objection.
The following testimony was introduced without objection. An officer went to the home of Israel Morales and, upon finding that he was not there, stated that A. C. Gonzales, Chief of the Edinburg Police Department, wanted to talk to Israel. Sometime later Israel and Brijido Pena went to see Chief Gonzales. Gonzales told Israel that he was checking on the car about which he had received some information. Israel told Officer Gonzales that he knew what he was talking about and that he was in the fight at Weslaco. Officer Gonzales told him not to say anything else and advised Israel about his right to remain silent and right to counsel by reading from a card. Israel said he understood his rights and then told the officer, 'We did it,' and when asked what he meant he said, 'The boy outside and me.'
Officer Gonzales testified that he also warned Brijido Pena. A justice of the peace testified that he also warned these two appellants about their rights.
No request for a hearing on the voluntariness of any confession was made until after the above testimony was introduced. 2
It appears from the record that an officer found the knife as a result of a conversation with Israel Morales but no statement of Israel Morales was introduced.
If the court erred in admitting the testimony about the officer finding the knife, it was made harmless when Israel Morales testified that he stabbed and killed Ayala with the knife and that he and the others left, and he threw the knife into a canal (where it was found by the officers). He also testified that Pena tried to stop him from stabbing Ayala and that Juan Morales did not get out of the car. No objection to any of this testimony was made and nothing is presented for review. The second ground of error is overruled.
Complaint is made in the third ground of error that the court erred in charging the jury on the law of principals. It is contended that the court assumed a common plan or design in his instructions. Upon the law of principals, the court charged the jury as follows:
'All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts, or encourage by words and gestures, those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders and may be prosecuted as such.
'You are further instructed that all persons who advise or agree to the commission of an offense and who are present when the same is committed are principal offenders whether such persons aid or not in the illegal act. Mere presence alone does not constitute one a principal.
'When two or more persons agree to commit an unlawful act, each is responsible as a principal, if present, for everything done by those who have entered into such common design as one of its probable and natural consequences and which might have been and should have been contemplated would result from the execution of the original design even though it was not intended as a part of the common plan.
V.
'Now if you find from the evidence beyond a reasonable doubt that ISRAEL MORALES and BRIJIDO PENA entered into a common plan and design to assault Juan Ayala and that in the execution or attempted execution of such assault, if any, ISRAEL MORALES on or about the 27th day of February, A.D. 1969, in the County of Hidalgo and State of Texas, voluntarily and with malice aforethought killed Juan Ayala by cutting and stabbing him with a knife, and that the Defendant BRIJIDO PENA was then and there present and acting together with the said ISRAEL MORALES in the execution or attempted execution of such assault, if any, and that the death of the said Juan Ayala followed immediately in the execution of such common design, if any, as one of its natural and probable consequences and the said death of Juan Ayala might have been and should have been foreseen by the said Defendant BRIJIDO PENA as one of the natural and probable consequences which would result from the execution of said common design, if any, you will find the Defendant BRIJIDO PENA guilty of murder with malice aforethought.
'You are further instructed that if you find the foregoing facts beyond a reasonable doubt except that you find from the evidence, or have a reasonable doubt thereof, that in cutting and stabbing Juan Ayala the said ISRAEL MORALES was acting outside of the common design of ISRAEL MORALES and BRIJIDO PENA, and that ...
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