Rodriguez v. State, 39365

• Decision Date: 09 March 1966
• Docket Number: No. 39365,39365
• Citation: 399 S.W.2d 818
• Parties: Adam RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 818

399 S.W.2d 818

Adam RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 39365.

Court of Criminal Appeals of Texas.

March 9, 1966.

Wm. H. Hamblen, Edna, for appellant.

Wiley Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is murder; the punishment, life imprisonment.

It was undisputed that appellant killed the deceased by shooting him with a pistol, the homicide being committed in a bar in the city of Edna which was referred to in the testimony as the Twist Club and Sanchez's Place.

Ralph Sanchez, operator of the bar and a witness to the killing, testified that on the evening in question the deceased came into the place around 7 p. m. An hour later, appellant and a companion, Eugene Salinas, entered the place. The deceased was sitting at a table, drinking beer. Appellant and Salinas joined him at the table and began drinking. The witness Sanchez then joined them at the table. Sanchez testified that he went to the restroom and when he returned to the table appellant and the deceased were discussing who was the better man. In the discussion, after each stated that he was a good man, the deceased said, 'no, I am a better man,' and appellant replied, "I am a better man than you are." Appellant then reached back, pulled out a pistol, and, after saying, "I'll show you I am a better man than you are," fired the gun in rapid succession six or eight times. The witness testified that the deceased made no movement of any kind before the first shot was fired and after the first shot the deceased stood up and fell backwards.

The testimony further shows that when the officers arrived upon the scene the deceased was lying on the floor with six entrance bullet wounds in his body. One was in the forehead, three were in the chest, one in the left side, and one in the left arm. Appellant was also present and when policeman Sample entered the place appellant said to him, "Sir, this is what I shot him with, sir," and handed the officer a .25 calibre semi-automatic pistol. At such time appellant appeared to be drunk.

Testifying as a witness in his own behalf, appellant stated, in substance, that he shot the deceased in self-defense. He related that while they were seated at the table, drinking beer, the deceased bragged that he was a better man and said that he was going to hit the appellant; that when the deceased hit him with a beer bottle and advanced upon him he fired the pistol toward the table; that as the deceased continued to advance he fired several more shots until the deceased fell. Appellant stated that he was in fear of the deceased, knew that he was a dangerous man, and had known of the deceased carrying brass knucks and having fights with others. He further stated that the deceased had the reputation of winning the fights.

The court submitted the issue of appellant's guilt to the jury upon a charge on the law of self-defense.

Appellant predicates his appeal upon seven bills of exception but, in oral argument before this court, agrees with the state's contention that no reversible error is presented in his bill of exception #4.

Bill of exception #1 complains of the court's action in excusing a special venireman on objection of the state.

The bill of exception merely certifies that the venireman was excused, over appellant's objection, but does not certify that an objectionable juror was forced upon appellant. In the absence of injury being shown in the bill, no error may be predicated thereon. 5 Tex.Jur.2d 419-422, Sec. 248; Luttrell v. State, 116...