Orozco v. State
| Decision Date | 06 December 1967 |
| Docket Number | No. 40706,40706 |
| Citation | 428 S.W.2d 666 |
| Court | Texas Court of Criminal Appeals |
| Parties | Reyes Arias OROZCO, Appellant, v. The STATE of Texas, Appellee. |
Charles W. Tessmer, (on appeal only), Dallas, for appellant.
Henry Wade, Dist. Atty., Dallas, Charles Caperton, Tom F. Reese and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder with malice; the punishment, 10 years.
Trial was before a jury on a plea of not guilty. The state having waived the death penalty and the jury having found appellant guilty of murder with malice, the court assessed the punishment.
The facts necessary for consideration and disposition of the grounds of error set forth in appellant's brief, filed in the trial court, reflect the following: Appellant was seated in a booth near the front door of the El Farleto Cafe in Dallas with Hosea Miramontes and Joanne Parris when John Hugh Elliott, the deceased, came in and sat in a booth some six feet away. After eating his food and having some conversation with Joanne, the nature of which is not disclosed, the deceased left the cafe.
Shortly after the appellant and Joanne left, as did Miramontes. An argument ensued and deceased, who had gotten in his car and was driving away, pulled back into the parking place alongside of the Miramontes car and, according to the testimony of Miramontes, the deceased beat appellant about the face with his hands and called him 'Mexican Grease.' A shot was fired and Miramontes drove Joanne and appellant from the scene and, after letting appellant out, drove Joanne to the corner of Commerce and Akard and let her out.
James Ishcomer, referred to as an Indian man, and his companions, who left the cafe about ten minutes later, found Elliott, the deceased, slumped over the steering wheel of his car and thought that 'a little mickey' had been put in his drink and that he was drunk, but when they raised him up they saw a bullet hole; took him out of the car and attempted to revive him by mouth to mouth artificial respiration.
Patrolman J. W. Johnson, of the Dallas Police Department, testified that while on duty on the late night shift on January 5, 1966, with another officer, he noticed 5 or 6 persons standing on the sidewalk on the west side of Cedar Springs, where there was a car with the door open. When these people saw the squad car they began to wave, and he noticed that there was a man lying in the parking area with one leg inside a Ford station wagon. Those standing by said they thought he was drunk, but 'when we went to this gentleman laying on the ground and found he wasn't drunk but he had been shot * * * we called for an ambulance' and 'for a detective squad, supervisor and crime lab.'
Patrolman Jerry C. Scarbrough testified that he was one of the arresting officers; that Officer Stubbs rode with him and they with two Homicide detectives, one of whom was Charlie Brown and the other a detective he did not know personally, went to 'a private residence' on Lemmon Avenue arriving about the same time; that he went to the back of the house and the other officers went to the front; that he later went inside the house and was in the back room when the pistol was found in the washing machine.
We quote from the testimony of state's witness Brown:
'Q. Were you a police officer for the City of Dallas back on January the 5th, 1966?
'A. Yes, sir, I was.
'Q. Who was your partner on that day?
'A. Blessing was my partner.
'Q. What were your hours of duty that night?
'A. Working from six until twelve.
'Q. You're supposed to get off at twelve o'clock?
'A. Off at twelve.
'Q. Did you get off at twelve o'clock that night?
'A. No, we didn't.
'Q. What did you do that night?
'A. Well, we answered a call on McKinney, on Cedar Springs with a uniformed squad and I was working in the capacity as a plain-clothes officer with Mr. Blessing.
'Q. All right, was that at the El Farleto Cafe?
'A. Yes, sir.
'Q. Where did you go, if anywhere?
'A. We walked from that location, we went to Parkland Hospital and viewed the body at that location.
'Q. Whose body did you view there?
'A. It was a man that was a white man that's supposed to have gotten shot there and the ambulance had left and we left the El Farleto.
'Q. That's John Hugh Elliott's body?
'A. Yes, sir.
'Q. Was he alive or dead when you--
'A.--dead when we got to Parkland.
'Q. Where did you go from there, sir?
'Q. Was that James Ishcomer?
'A. Yes, sir.
'Q. Did you talk to him?
'A. Yes.
'Q. Where did you go after that?
'A. We took him to another apartment and talked to the people there and then took him home from that location.
'Q. Okay, then where did you go, if anywhere?
'A. We found out who this other man was that was with the Defendant, where he lived, and we went to his home in Oak Cliff.
'Q. Was that Hosea Miramontes?
'A. Yes.
'Q. From his house where did you go?
'A. Came by town and came up Commerce and Akard and was going to show us where he let a girl out.
'Q. That was Hosea Miramontes that you had in your car at that time?
'A. That's right.
'Q. From this location, did he show you a location?
'A. Yes, he did on Lemmon Avenue.
'Q. Okay, then what did you do after that?
'A. We took him, after he showed us the house, we took him over to the City Hall and booked him for investigation of murder, then we returned to the location on Lemmon Avenue that he pointed out to us.
'Q. (By Mr. Caperton) At this time you didn't go into the house the first time you went there, is that right?
'A. No, sir, drove by that location.
'Q. Did you go get a warrant?
'A. No 'Q. All right, when did you come back to the house?
'A. Miramontes.
'
'Q. About what time of day was this?
'A. That I talked to him?
'Q. Yeah.
'A. That was around, well, after four o'clock, it was around four o'clock, give or take thirty minutes.
'Q. Okay, now, what did you say, if anything, to him besides 'What's your name?'
'A. Yes, I don't recall all the conversation, I asked him his name and he told me and I asked him if he had been out to the El Farleto that night.
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