Samaniego v. State, 08-81-00046-CR
| Decision Date | 21 April 1982 |
| Docket Number | No. 08-81-00046-CR,08-81-00046-CR |
| Parties | Raul Heredia SAMANIEGO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John T. Garcia, Luis C. Labrado, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., R. Bradford Stiles, Asst. Dist. Atty., El Paso, for appellee.
Before STEPHEN F. PRESLAR, C. J., and WARD and OSBORN, JJ.
A jury found the Appellant guilty of murder while committing a robbery, and his punishment was assessed at life imprisonment. We affirm.
On the evening of December 11, 1978, Armando Tarin, Jr. was shot once in the stomach while working at a small neighborhood grocery store in El Paso. He died about three hours later. On the evening of December 13, 1978, the occupants of a car were stopped on suspicion that they were suspects in a robbery committed that evening and the Appellant and three other males were arrested. A search of the car disclosed several weapons. Two days later, the Appellant gave the police a statement in which he confessed to having shot Armando Tarin, Jr.
The first ground of error contends the trial court erred in admitting into evidence the statement of the deceased as a dying declaration. The first officers to arrive at the grocery store testified when they arrived Mr. Tarin was on the floor in obvious pain from a wound. He told them, "They shot me, they robbed me." He did not identify who the offenders were.
Article 38.20, Code of Criminal Procedure, specifies the requirements to establish a dying declaration. The Appellant argues that the State did not comply with the first requirement which requires satisfactory proof "(T)hat at the time of making such declaration he was conscious of approaching death, and believed there was no hope of recovery."
At the time the statement was made, the declarant was on the floor bleeding from a gunshot wound. He appeared nervous and was in pain. He had difficulty breathing. His voice was rather weak. He died within three hours. It is not essential that the declarant state in specific terms that he is conscious of impending death. Moore v. State, 127 Tex.Cr.App. 637, 78 S.W.2d 189 (1934). One circumstance which is very relevant is the apparent character of the wound. 1A Ray, Texas Law of Evidence, Section 976 (1980). The wound in this case caused the declarant great pain; he clutched the wound and must have realized he was bleeding. He was lying on the floor doubled up and unable to breathe normally. The shot hit in an area where vital organs would be affected. He had to have several minutes to reflect on his condition before the police arrived. We conclude the evidence was admissible as a dying declaration.
If we be mistaken about proof of a dying declaration, the evidence was admissible as an exception to the "Hearsay" rule because it qualified as a spontaneous declaration of objective facts. The basis for the rule is set forth in 1A Ray, Texas Law of Evidence, Section 913 (1980), which states:
The basis underlying the admission of this class of evidence is a psychological one, namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood, and "the truth will out." The test to be applied in determining the admissibility of this class of evidence is the spontaneity or impulsiveness of the declaration.
Probably the two most frequently recurring types of declarations which gain admission under this rule are declarations made by persons injured in accidents, and those made by the victims of crimes of violence....
Also see: Cook v. State, 398 S.W.2d 284 (Tex.Cr.App.1965); McBride v. State, 121 Tex.Cr.App. 409, 51 S.W.2d 385 (1932); and Wilson v. State, 70 Tex.Cr.App. 627, 158 S.W. 512 (Tex.Cr.App.1913). Ground of Error No. 1 is overruled.
The second and third grounds of error contend the trial court erred in admitting into evidence State's exhibit 56 and the testimony relating thereto in violation of the "Hearsay" and "Best Evidence" rules. The officers testified that when they arrived at the store, the cash register drawer was open. The following day, Frausto Tarin, the deceased's uncle, prepared the store's "Daily Cash Check Out Sheet" which was admitted as State's exhibit 56. This exhibit reflects that at the closing on December 11, 1978, the cash register contained $75.00 in food stamps, $171.04 in checks and $272.22 in cash. The exhibit shows that the cash register reflected sales of $604.91, that it had $120.00 in cash to begin the day and that $62.18 was paid out for merchandise. This left a cash shortage of $144.47. The cash register tape which would reflect all transactions and each individual sale was lost and never offered in evidence.
The "Best Evidence" rule requires that to prove the contents of a document, the original document must be produced. 2 Ray, Texas Law of Evidence, Section 1561 (1980). In this case, exhibit 56 was an original document. That exhibit showed a summary of beginning cash, sales, cash paid out and food stamps on hand at the end of the day. This exhibit was offered as an original exhibit to show a summary of the day's activities and the cash shortage at the end of the day. Had a witness attempted to testify as to the figures on the daily sheet, then the "Best Evidence" rule would have been applicable. The missing cash register tape was not the best evidence of the compilation of figures shown on exhibit 56. The tape did not reflect a breakdown as to particular coins and bills found in the cash register, nor would the tape show the amount of cash missing. The State did offer "Daily Cash Check Out Sheet(s)" for a period of about one month, most of which included cash register tapes for each particular day, but those tapes do not reflect total daily sales; that figure is taken each day at closing directly from the cash register itself and recorded on the "Check Out Sheet." In addition, it must be noted that the rule requiring the production of original writings applies only where the purpose of the evidence offered is to prove the contents of the document. 2 Ray, Texas Law of Evidence, Section 1566 (1980). In this case, neither testimony nor exhibit 56 was offered to show the contents of the lost cash register tape.
Exhibit 56 was qualified as a business record under Article 3737e (Tex.Rev.Civ.Stat.). Armando Tarin, Sr., the owner of the store, testified that it was customary to keep "Daily Check Out Sheet(s)" and that they were made in the regular course of the business by store employees. He started to prepare the sheet on December 11, 1978, but was too upset with the shooting of his son, and he had his brother, Frausto Tarin, who operates one of the other stores owned by Mr. Tarin, complete the report the day after the shooting. The exhibit was admissible as a business record. Morgan v. State, 503 S.W.2d 770 (Tex.Cr.App.1974). As a business record, the exhibit qualified as an exception to the "Hearsay" rule. 1A Ray, Texas Law of Evidence, Chapter 21 (1980). Grounds of Error Nos. 2 and 3 are overruled.
The next ground of error contends the trial court erred in admitting into evidence the statement of Appellant because it was not made knowingly, willingly or voluntarily. The court conducted a full hearing as to the admissibility of the statement. The officer who took the statement testified concerning the Miranda warning given to the Appellant before the statement was taken. He said the statement was given voluntarily without use of any force, threats, promises or coercion. There was no testimony to the contrary. The statement was made by Appellant in Spanish, typed by the officer in English and then read back to the Appellant in Spanish. After the officer who interpreted into Spanish read the statement to the Appellant...
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...is very relevant is the apparent character of the wound. 1A Ray, Texas Law of Evidence, sec. 976 (Texas Practice 1980); Samaniego v. State, 633 S.W.2d 915, 916 (Tex.App.--El Paso 1982, no pet.). In the case at bar, the stab wounds of the deceased were very extensive; his eyes, chest, stomac......