Palafox v. State

Citation484 S.W.2d 739
Decision Date19 July 1972
Docket NumberNo. 44980,44980
PartiesFelipe Segura PALAFOX, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Moises Vincente Vela, Harlingen, for appellant.

F. T. Graham, Dist. Atty., Menton Murray, Jr., Asst. Dist. Atty., Brownsville, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder where the punishment was assessed by the court at 20 years following the jury's verdict of guilty.

The record reflects that the deceased, Elvira Rivera, was killed when struck by an automobile driven by the appellant.

Initially, appellant contends the court erred in overruling his motion for an instructed verdict because the evidence was insufficient to show an intent to kill, an essential element of the offense of murder.

The tragic sequence of events occurred at the Civic Center parking lot in Brownsville following a wedding reception dance on September 25, 1970.

The dance had been attended by many people, including the deceased and her husband, Anacario Rivera, Aniceto Saldivar and his wife, and Jose Luis Escobedo and his fiancee, Rosario Rios, a niece of the appellant's wife. The appellant and his wife, Maria Elena, were also there.

Rosario Rios revealed that at the dance she and Escobedo had an argument because of the way he was dancing and because he was acting 'silly.' Escobedo had been drinking beer, as well as apparently many of the others who were there.

At the conclusion of the dance, near midnight, and as these individuals were leaving the building, it appears that Escobedo inquired of the appellant why he had come to the dance when he had earlier said he would not. As the conversation developed, appellant reprimanded Escobedo for his neglect of Rosario Rios during the dance. Shortly thereafter, a fight erupted between the two. Upon the screams of the women, Rivera and Saldivar separated the pair. As the fight ended, the parties all moved to the parking lot.

Rivera and Saldivar and their wives then proceeded to the Rivera car. Escobedo walked with his arm around the appellant's neck towards appellant's Thunderbird automobile. There, the argument continued although there was some dispute about whether additional blows were struck. During the continued dispute, Rivera moved his car closer to the appellant's car to see what was happening. Rivera revealed the appellant and Escobedo were continuing to fight, and that the appellant made a motion and yelled something to him (Rivera). At this point, Rivera got out of his car and joined Escobedo at the door of appellant's car where appellant commenced to argue with Rivera. Although there was some dispute, some State witnesses indicated that Rivera pulled at the appellant's shirt.

While this was taking place, the deceased, Elvira Rivera, got out of the car in which she had been seated and advanced some distance toward appellant's car.

When appellant's car 'jerked' backwards wards for a short distance, Rivera, Escobedo and Miss Rios moved away and close to the concrete median in the parking lot. At this point, appellant's car engine was 'gunned,' tires squealed, and the car accelerated forward, jumping the median which was 4 high and 3 across, hitting both Escobedo and Rivera and knocking them down. The car then turned left sharply, and continued approximately twenty feet or more before striking, Elvira Rivera and passing over her body. The impact caused her death.

Brownsville City Patrolman Ortiz testified he was answering a disturbance call at the Civic Center and observed the incident in which the deceased was struck; that he gave chase, blowing his horn for appellant to stop, and the appellant stopped only after he pointed a pistol at the appellant. He testified that in his opinion the appellant was not intoxicated.

Ortiz testified that the brake lights of appellant's car did not come on until the final stop.

The Saldivars also testified they never observed any brake lights or any other action which might indicate the appellant was trying to stop.

Detective Tapia testified that his investigation revealed the lighting in the parking lot was sufficient to provide visibility up to 100 feet on the night in question; that he found no skid or black marks on the lot; that, upon examination at the police station, the brakes and brake lights of appellant's vehicle were operative, and he found no malfunction in his inspection of the Thunderbird automobile.

When asked if she heard the appellant say anything to Rivera when he was at the appellant's car, Rosario Rios stated, 'I only heard him say that they were going to pay for it because they had hit him.'

Sgt. Anduiza of the Brownsville Police, who was on the scene, testified he saw a man 'swinging' at the driver of the orange Thunderbird and that the car backed up and started forward and went over the median.

The record also reflects he testified:

'A Yes, it seemed to me, at the time, that this car went after those people that started running away.

'Q Then what happened?

'A He was following these people, going after them until I saw those four people that I distinctly remember. One was a clumsy woman running in front of the car. She was running clumsy--'

Testifying in his own behalf, the appellant testified that after he and Escobedo commenced the original fight, 'a bunch of guys' began hitting him, and that after he reached his car and started the motor, Escobedo thrust his body partially through the window and withdrew only when a police car passed by. He denied he yelled or motioned to Rivera so as to cause him to come to the car. He related that his car was already in reverse when Rivera began grabbing and striking him, and his wife tried to get Rivera's hands off of him. Then, appellant testified:

'. . . I had moved to the right and I had my foot on the pedal, the gas line pedal, and I think that is When it accidentally--on that moment is when I moved the lever from reverse to drive or low or whatever it is and then the car hit this levee here on top of here and then he got out quickly, instantly. Everything happened so instant (sic), so quickly, I couldn't understand it. That is all I remember from then on.' (Emphasis added.)

On cross examination, he stated he 'didn't realize that' the car had started forward until he had crossed the median. He acknowledged he could see out the windshield and managed to turn the car after it crossed the median. He was then asked:

'Q You never did look out to look and see what was in front of your car?

'A Everything was so instantly, that it happened instantly, so quickly.'

Appellant denied intending to hit or kill Elvira Rivera, or Rivera or Escobedo. He claimed he stopped when his wife told him he hit someone, not because of Officer Ortiz.

Appellant's wife, who was in the car with him, corroborated much of his story. On cross examination, she revealed the deceased was visible to her prior to the impact; that, at the time, her husband was in the driver's seat looking straight ahead.

The judge charged the jury on murder with and without malice as well as the defense of accident. The court also instructed the jury that it must find the appellant intended to kill the deceased, or that he intended to kill some other person, and, as a result, killed Elvira Rivera by accident, or mistake. See Article 42, Vernon's Ann.P.C.

Appellant contends there is little or no evidence that he intended to kill Elvira Rivera. The State does not contend otherwise, but urges its theory that he intended to kill Rivera and Escobedo and killed Mrs. Rivera by accident or mistake in such attempt. The State calls attention to the court's charge authorizing conviction under the provisions of Article 42, supra.

In 4 Branch's Ann.P.C.2d ed. § 2077, p. 385, it is written:

'. . . A person is chargeable with the intent with which he acted and the intended consequences of his act. If he shoots at one person with malice and kills a bystander or third person, he is guilty of murder with malice. . . .' . . ..'

See also, 16 Tex.Jur.2d Criminal Law § 43.

In Walker v. State, 440 S.W.2d 653, 657 (Tex.Cr.App.1969), wherein it was claimed the evidence failed to establish an intent to kill, the court said:

'Article 45, V.A.P.C., provides 'The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.' "The intent of the defendant may always be ascertained or inferred from the means used and the wounds inflicted by him.' 4 Branch's Anno.P.C., 2d ed., Sec. 2190, pp. 535--536.

'Further, the trier of the facts may infer intent to kill from any facts in evidence which to his mind prove existence of such intent to kill, as from use of a deadly weapon. Hall v. State, Tex.Cr.App., 418 S.W.2d 810. See also Sadler v. State, Tex.Cr.App., 364 S.W.2d 234 (intent to kill is either presumed or established by facts in murder prosecution).

"It is well settled that when the weapon used in effecting an unlawful killing is a deadly weapon, per se, the intent to kill is presumed as a matter of law.' Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558. See also 20 Texas Digest, Homicide, k145.'

While and automobile has been held not to be a deadly weapon, per se, so that intent to kill may be presumed, Brewer v. State, 140 Tex.Cr.R. 9, 143 S.W.2d 599, 602 (1940), such intent may be shown from all the circumstances surrounding the killing. See, Brewer v. State, supra, note 3; Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105 (1938); Cooper v. State, 171 Tex.Cr.R. 412, 351 S.W.2d 235 (1961); Lopez v. State, 162 Tex.Cr.R. 454, 286 S.W.2d 424 (1956); Johnson v. State, 153 Tex.Cr.R. 59, 216 S.W.2d 573 (1948). 1

Considering all the evidence in the light most favorable to the jury's verdict, we find the evidence sufficient to show an intent to kill either Escobedo or Rivera, or both,...

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