Ruiz v. State
| Decision Date | 11 June 1975 |
| Docket Number | No. 49739,49739 |
| Citation | 523 S.W.2d 691 |
| Parties | Rafael RUIZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Abel Toscano, Jr., Harlingen, for appellant.
Fred Galindo, Dist. Atty., Peter C. Gilman, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
Our prior opinion is withdrawn. This is an appeal from a conviction for the offense of murder; the jury assessed the appellant's punishment at imprisonment for fifteen years. The appellant complains that: evidence of an extraneous offense was erroneously admitted; the jury was improperly instructed concerning the purpose for which the extraneous offense was admitted; there was a failure to instruct the jury at the guilt-innocence stage of the trial on the definition of murder with malice, murder without malice, and on specific intent to kill.
The extraneous offense about which complaint is made is the appellant's alleged rape of the deceased's daughter. During the cross-examination of the appellant he denied that he had raped the deceased's daughter. During the State's rebuttal the daughter testified that the appellant had raped her when she was sixteen years old, and that this had caused her to run away from her home where the appellant was living with her mother.
The appellant was indicted and tried for the offense of murder with malice of Sara Castillo who he testified 'was my woman.' The offense was alleged and proved to have been committed on August 4, 1973. While he was lawfully married to another woman the appellant lived with Sara Castillo for over five years; then he and Sara Castillo separated about one year before her death. The appellant by his testimony implied that his separation from Sara Castillo was caused by her having an affair with Napoleon Ruiz. The appellant testified that between 6:00 and 7:00 a.m. on the morning of her death he saw Sara Castillo leaving the office of Napoleon Ruiz clothed in a kimono. He saw Ruiz get in his pickup and drive away and Sara Castillo get in her vehicle and drive away. The appellant followed Sara Castillo; when he drove alongside of her car she rolled the window down and shouted: 'If you don't like it, you dumb ass,' and then laughed. The appellant testified this made him feel tense and 'I lost my feeling and then I took out the gun and I shot her just to scare her so to speak.' The appellant also testified that Sara Castillo's daughter had told him that her mother had been seeing Napoleon Ruiz.
This testimony concerning his reason for the separation and the relationship between the parties was admissible to show the appellant's state of mind at the time he shot the deceased. See Art. 1257a, Vernon's Ann.P.C. From the evidence offered by the appellant, not all of which has been summarized, it appears he was either seeking an acquittal on the defense of insanity or a reduction of the punishment by showing that the alleged murder was committed without malice. The appellant was attempting to show that his act in shooting the deceased was done in sudden passion or while he was rendered insane by the deceased's affair with Napoleon Ruiz. The rule applicable to the complained of testimony has been well stated as follows:
(Numerous citations omitted.) 4 Branch's P.C.2d ed. 558--559, Sec. 2201.
It is the State's theory supported by the deceased's daughter's testimony that Sara Castillo separated from the appellant because he raped her daughter, and that his act in shooting the deceased was deliberate and in revenge for 'throwing him out of the house.' This testimony of the daughter was admissible and the cross-examination of the appellant was legitimate to rebut the testimony the appellant offered to show his relationship with the deceased and his state of mind at the time the deceased was shot. Art. 1257a, V.A.P.C and see Sherman v. State, 428 S.W.2d 338 (Tex.Cr.App.1968). The complained of evidence was admissible even though it showed an extraneous offense. Since the admission of the evidence was proper to rebut that offered by the appellant, there was no need for a charge limiting the jury's consideration of the testimony. The error in giving a charge limiting the jury's consideration of the testimony to impeachment purposes was an error against the state and the appellant is therefore in no position to complain. See Sherman v. State, supra. During the trial the appellant asked the Judge to limit the jury's consideration of the testimony and a limiting instruction was given, and then the court submitted a written limiting instruction. The appellant's objection to such charge did not indicate why he thought it was defective. No error is shown.
Next we will consider the appellant's complaint that the trial court refused to charge the jury at the guilt-innocence stage of the trial on the definition of malice aforethought and murder without malice. The court did charge the jury on murder with and without malice at the punishment stage of the trial. In Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App.1973), it was said:
See also Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.1973), and the cases there cited. Cf. Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974); Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974); Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App.1974). The court did not err in refusing to instruct the jury on the law of murder with and without malice at the guilt-innocence stage of the trial.
We will now consider the appellant's remaining complaint that the court erroneously refused to charge the jury on specific intent to kill. When a weapon deadly per se is used in a deadly manner and death results, even though the defendant testifies that he did not intend to kill the victim, there is no need to give a charge on specific intent to kill or aggravated assault. Art. 45, V.A.P.C.; 1 Hadnot v. State, 110 Tex.Cr.R. 109, 7 S.W.2d 566 (1928); Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322 (1943); Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967); Schulz v. State, 446 S.W.2d 872 (Tex.Cr.App.1969); Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Gamblin v. State, 476 S.W.2d 18 (Tex.Cr.App.1972); Stills v. State, 492 S.W.2d 478 (Tex.Cr.App.1973); Hargrove v. State, 501 S.W.2d 878 (Tex.Cr.App.1973).
In Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558 (1948), it was said:
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