Ruiz v. State
| Citation | 579 S.W.2d 206 |
| Decision Date | 21 February 1979 |
| Docket Number | No. 55691,No. 2,55691,2 |
| Parties | Joe RUIZ, Appellant, v. The STATE of Texas, Appellee |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Michael Anthony Maness and Ernesto Valdes, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Stu Stewart, Asst. Dist. Attys., Houston, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for capital murder. The court, after the jury responded negatively to the second special issue presented under Article 37.071(b)(2), V.A.C.C.P., assessed the penalty at life imprisonment. See Article 37.071(e), V.A.C.C.P.
The evidence presented by the State in its case in chief showed clearly that the appellant, accompanied by two other individuals, entered the Crescent Food Market in Houston on June 22, 1974, at approximately 5 p. m., armed with handguns. One of the employees working in the rear area of the store testified that the appellant approached him with a drawn handgun and ordered him to the front of the store and to lie down. The appellant then took this employee's wristwatch and wallet. He identified a photograph of the appellant taken the following day as being representative of how the appellant appeared on the day of the offense. He testified that the appellant had a moustache, khaki pants, and a red shirt on at the time. He also identified two other photographs as representing the other two individuals who accompanied the appellant. After lying on the ground, the witness was stomped on the back of the head several times and did not observe any other incidents. Immediately following his hearing someone state, he heard two shots. After inquiring and determining the robbers had left, the witness raised himself and discovered that the son of the owner had been shot in the right shoulder and a customer had been shot and killed in the store.
A cashier at the store during the time of the robbery testified that she noticed one of appellant's companions near the front door with a gun and as she turned around the other companion was in front of her with a gun. Immediately previous to this confrontation she observed the appellant go to the rear through a nearby aisle. She testified that the appellant came to the front of the store and took the bag with the money in it, but that she did not see both his hands and did not see any weapon at that time held by the appellant.
A second cashier at the food market testified that she was in another counter area with the son of the owner who was subsequently shot. One of the appellant's companions stood before them with a gun and ordered them to get down. This cashier did not see anyone other than this one robber and kept her head down throughout the incident.
The stockboy who was in the counter area with the second cashier testified that he was also ordered to get down on the floor, but looked up as the three robbers were leaving. He was told to get down and was then shot. He testified that he described his assailant as "kind of fat" with medium length hair, long sideburns and "possibly a moustache." He could not remember the color of the clothing worn by the assailant.
Police photographs taken the day following this incident of the three participants reflect that the appellant is the only individual with a moustache.
After the State and the defense stipulated that the weapon introduced into evidence as State's Exhibit No. 7 was the same weapon used in the robbery of the Crescent Food Market, used to kill the victim during the robbery, and recovered the next day from one of the participants in the robbery, direct testimony was adduced relating to the arrest of the individual from whom State's Exhibit No. 7, the murder weapon, was recovered. The owner of Early Roberts Famous Foods all night cafe testified that at approximately 3 a. m. on June 23, 1974, a buzzer rang in his office which indicated a robbery was in progress. As he exited his office he observed a plainclothed, off-duty police officer holding the robber up by the wall. It was at this time that State's Exhibit No. 7 was seized from Bernadino Sierra, Jr., one of the three participants in the robbery of the Crescent Food Market.
Three police officers then testified to the recovery of State's Exhibit No. 8, a .22 caliber pistol, which appeared similar to that used during the robbery of the Crescent Food Market by one of the participants, and State's Exhibit No. 11, a wristwatch taken off the employee of the Crescent Food Market during the robbery. It was shown that these items of evidence were obtained by a cellmate of the three participants in the Crescent Food Market robbery from the Vargas household at 515 Wichmann.
The State then introduced evidence of two extraneous aggravated robberies committed prior to the arrest of Sierra referred to above. The first of these was committed at a Stop and Go convenience store between 2 and 2:15 a. m. when a man wielding a gun, identified as the appellant, ran into the store and announced that it was a holdup. He ordered the cashier to open the register and back up. The cashier testified that the appellant pushed him, tried to strike him on the head with his pistol and tried to knee him in the groin. He was then ordered into the back room to open a safe which he could not open and was then forced into the walk-in cooler of the store and to lie down on the floor with other customers. The witness testified that the appellant carried a long-barrel revolver similar to State's Exhibit No. 8. He identified the other male individual as Bernadino Sierra, Jr. A customer in the store at the time of the robbery testified and corroborated the cashier's testimony.
Testimony was then adduced that at approximately 2:20 a. m. the appellant approached two customers as they were beginning to enter a U-totem store, wielding a gun and ordering them inside. The appellant was accompanied again by an individual identified as Bernadino Sierra, Jr. The appellant was wielding a long-barrel pistol, while Sierra was holding a snub-nosed pistol similar in characteristics to a .38 caliber. The witness was ordered to the floor and his wallet was taken.
A third extraneous offense was admitted into evidence. Guadalupe Garza testified that on May 28, 1974, she approached a young Latin American male, later determined to be Gilbert Moreno, in a Houston lounge and requested a ride home. Moreno agreed and drove Ms. Garza and her companion, Bernadino Sierra, Jr., to a location designated by Sierra on Brady Street. When they arrived at the Brady Street residence, Moreno was invited in by Sierra to drink some beer. The three entered the apartment and Ms. Garza and Moreno began talking on the living room couch while Sierra entered the bedroom. Shortly afterward, the appellant and one or two other individuals arrived at the apartment and entered the bedroom. Sierra then asked Moreno to come into the bedroom, at which time the witness heard a scuffle and a plea from Moreno telling the others to take his money but leave him alone. Ms. Garza entered the room and...
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