De La Rosa v. State, 13-82-378-CR

• Decision Date: 10 November 1983
• Docket Number: No. 13-82-378-CR,13-82-378-CR
• Citation: 660 S.W.2d 642
• Parties: Roberto DE LA ROSA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 642

660 S.W.2d 642

Roberto DE LA ROSA, Appellant, v. STATE of Texas, Appellee.

No. 13-82-378-CR.

Court of Appeals of Texas,

Corpus Christi.

Nov. 10, 1983.

James Lawrence, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and BISSETT and YOUNG, JJ.

OPINION

BISSETT, Justice.

Appellant was indicted for the murder of John David Rodriguez. Following a jury trial, he was found guilty of the offense of voluntary manslaughter and punishment was assessed at 10 years in the Texas Department of Corrections.

In his first ground of error, appellant challenges the sufficiency of the evidence. The undisputed facts are as follows: In October 1981, appellant's daughter was shot and killed by Joe Lee, her common law husband. Two months later, on December 19, 1981, appellant entered the Astros Lounge in Corpus Christi and fired one or two shots at Joe Lee. A friend of Lee's, Juan Mata, grabbed appellant's pistol and fired some shots at appellant. During the gun fire, John David Rodriguez (John David), a small child was shot and killed. Joe Lee was also killed and the appellant suffered two gunshot wounds. Testimony concerning the number of shots fired, when they were fired, and who fired them is disputed. Although a number of witnesses were in the bar at the time of the killing, no one actually saw who shot John David Rodriguez and, therefore, this case rests on circumstantial evidence.

Melba Ramos, John David's twenty-five year old cousin, testified that she took John David to the Astros Lounge and that he was selling tamales to raise money to buy Christmas gifts. Joe Lee and Juan Mata were already in the bar when Melba and John David arrived. Melba had known Joe Lee for about two years and chatted with him. As John David sold tamales, Melba ordered a beer. Shortly thereafter, Melba sat John David on a bar stool and went into the women's restroom. While she was in the restroom she heard somebody shout, "You have to die." She then heard "shots" but she couldn't remember how many or whether there was more than one. She came out of the restroom and saw John David "standing close to a table where they were passing out the numbers." John David then "fell in my arms." Melba said she saw "a man standing on the door with the gun in his hand." Her testimony does not reveal who this man was, but when asked by police officers who had shot John David, she said she wasn't sure. At the trial, although Melba could not positively identify appellant as being in the bar when the shooting occurred, she said appellant looked "something like the man who was on the floor." Melba put her foot on this man's face and said, "You better die." The State did not further develop Melba's testimony and neither did the appellant.

Juan Mata testified that he was in the Astros Lounge when the shooting occurred. According to Mata, he and Joe Lee arrived at the bar around 1:00 p.m. The appellant was in the bar drinking beer but left shortly thereafter. By the time Melba and John David arrived at the bar, Juan Mata was making numbers for a "boxing pot." Joe Lee sat down and talked to Melba. Mata further testified that he did not remember seeing Melba go to the restroom but that he saw appellant walk to the bar, pull out a gun, and shoot. He said John David was "around with me here." Mata said that no words were spoken before the shooting, and that there was one shot and then "right away" another one. Mata then approached appellant. He did not know who, if anyone, had been hit by the shots. Mata then struggled with appellant but was hit hard and knocked down. When he recovered from the blow, appellant and Joe Lee were struggling for the gun. Mata pulled the gun out of appellant's hand and then Joe Lee "got up and came down" and said, "That's it with me." At that point, appellant got under the pool table and Mata "went under" and fired two shots at appellant, trying to shoot appellant in the head. Mata then came out, fired a shot, and then put the gun to appellant's head but, "it wouldn't go, just click, click," so Mata hit him with the gun on the head. According to Mata, appellant then said, "This is the way I want it, now they can charge you with the boy's death."

Mata further testified that "when we were struggling right here I saw Melba with a cue stick. She was yelling to appellant, 'You hit my little boy, you hit my little boy'." Mata further testified that appellant "shot about three shots, I guess." On cross-examination, Mata said he didn't know which shot hit the child and didn't know where the child was during the episode.

Antonio Mendoza testified that he was in the Astros Lounge when the shooting started. Mendoza said he was sitting in the bar watching a football game when appellant entered the lounge, walked to the bar, and started shooting. When the first shot was fired, Mendoza ducked and he saw Mata "moving towards Robert" (the appellant) and "that little boy was going down also."

Mendoza testified that he heard one shot, and then a few seconds later, another shot. He was unable to say, however, who fired the first shot, where it originated, or where it struck. When he ducked behind the pool table, "I saw Juan Mata moving up, you know, and that little boy was falling." When Mata, Lee, and appellant began struggling for the gun, Melba was already pulling John David towards the back door, and Mendoza went out the front door. Mendoza heard more shots after he was outside the bar, maybe two.

Nueces County Medical Examiner Joseph C. Rupp performed an autopsy on the body of John David Rodriguez. Rupp testified that the bullet which killed John David entered the child's back 14 1/2 inches from the top of the head and 2 1/2 inches to the left of the mid-sternal line, just below the level of the left nipple. Rupp described this as a through-and-through gunshot wound. The bullet was discovered in the clothing of the body. Since the entrance and exit wounds were exactly the same height, Rupp opined that John David was standing upright when shot. Rupp stated that if the child had been on the floor when shot there would have been "more blood" running out of the front of the wound. Likewise, he said, if the child had been down on the floor, the bullet would not have exited but would have remained in the body and produced a gigantic bruise.

On cross-examination, Rupp further testified that the bullet removed from John David's clothing had "significant distortions" in contrast to the...