Ortegon v. State, 43128

• Decision Date: 21 October 1970
• Docket Number: No. 43128,43128
• Citation: 459 S.W.2d 646
• Parties: Baldomero ORTEGON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 646

459 S.W.2d 646

Baldomero ORTEGON, Appellant, v. The STATE of Texas, Appellee.

No. 43128.

Court of Criminal Appeals of Texas.

Oct. 21, 1970.

Rehearing Denied Dec. 2, 1970.

M. Gabriel Nahas, Jr., King C. Haynie, Houston, for appellant.

Carol C. Vance, Dist. Atty., James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is murder with malice; the punishment, assessed by the court after a verdict of guilty, 20 years.

The State's evidence reflects that the appellant shot and killed the deceased, Alfredo Castillo, in Ray's Lounge in the city of Houston on June 8, 1968. The two men apparently did not know each other and saw each other for the first time on the occasion in question. The cause of death was shown to be a gunshot wound of the chest.

Felix Beltran, manager of the lounge, testified he saw the appellant in the lounge around 9 a.m. some 45 minutes or so before the killing; that he observed that appellant had a pistol stuck under his belt which he later pulled and pointed at Beltran and grinned. Beltran related he left the lounge and called the police from another business establishment and returned to the lounge. When the police did not arrive, he called them again. Upon his second return, he saw the appellant, who had been pointing the pistol at other customers, walk towards the restroom while checking the pistol or putting bullets in it. After the appellant emerged from the restroom, he stood near the juke box. The deceased, who had entered the lounge only minutes before, then asked him in Spanish 'What is wrong with you?' Whereupon the appellant shot the deceased, who was only three feet away. The other customers then struggled with the appellant, attempting to disarm him which resulted in one of them, Santos Hernandez, Jr., being shot in the hand. The appellant was disarmed and the pistol was recovered by the police, who took the appellant to a hospital as a result of the injuries received in the struggle.

There was other testimony corroborating Beltran's testimony.

The appellant, testifying in his own behalf, admitted he had a gun in his possession on the night in question but stated that after playing pool in the lounge he went to the bar to order a beer and that someone struck him in the head, rendering him unconscious--in which condition he remained until he awoke in the hospital the next morning. He denied shooting anyone.

Appellant contends the conviction cannot be sustained since there is no evidence of malice. We do not agree.

'Under the decisions of this court, proof of the intentional shooting of one with a gun is sufficient to authorize a jury to find that the shooting was actuated by malice. Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123; Bell v. State, Tex.Cr.App., 398 S.W.2d 133. Malice does not require any specific length of time for its germination or growth but may be formed immediately before the act is committed and can arise instantly. Johnson v. State, Tex.Cr.App., 401 S.W.2d 837.' Sloan v. State, Tex.Cr.App., 409 S.W.2d 412.

The facts and circumstances proved were sufficient to sustain the jury's verdict.

Next, appellant complains the court erred, despite his timely objection, in failing to charge on the issue of murder without malice.

The appellant testified he was knocked unconscious and did not shoot anyone, and we have searched the State's evidence and find nothing to support the submission of such a charge. The appellant does not call our attention to any testimony in the record which would justify such a charge.

In 29 Tex.Jur.2d, Homicide, Sec. 279, p. 514, it is written:

'If evidence raises the issue, the defendant is entitled to an instruction on the law of murder without malice. But a charge of murder without malice need not...