Tellez v. State, 27902
| Decision Date | 14 December 1955 |
| Docket Number | No. 27902,27902 |
| Parties | Joe B. TELLEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Mike Beard, Waco, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Appellant was convicted of murder and assessed punishment at confinement in the penitentiary for 35 years.
The State's testimony shows that the killing occurred on the night of February 2, 1952, at a place known as the Red Front in the City of Marlin in Falls County, Texas.
According to the State's witnesses, appellant shot the deceased, Robert Rivaz, while he (deceased) was engaged in a fight with one, Torribio Vasquez, and a boy by the name of Soto. In giving their version of the shooting, the witnesses testified that after Vasquez and Soto started the fight, the deceased picked up a chair and while holding it in front of him, backed away; that after he had dropped the chair, Vasquez hit him on the head with a beer bottle, and while the deceased was still backing away, the appellant shot him.
Appellant, as a witness in his own behalf, testified that on the day of the shooting he came from Waco to Marlin to see his girl friend, in company with his companion, Vasquez, arriving there around noon; that the two frequented several beer joints during the afternoon and drank beer; that during the middle of the afternoon at one of the places, he saw the deceased, who at that time pushed him in the back and wanted to fight. He further testified that about a month before the shooting the deceased had threatened to kill him. In describing the shooting, appellant testified that the deceased started the fight with Vasquez, and after the deceased had broken a bottle and tried to cut him, he (appellant) told him to stop; that he reached in his pocket and tried to pull his gun, and that as he pulled the gun out, the deceased kicked it; that he did not know what happened, but he did not try to shoot the deceased.
Appellant's companion, Vasquez, corroborated his testimony relative to the facts surrounding the shooting.
Appellant insists that the evidence is insufficient to support the conviction because the State failed to prove the cause of the death of the deceased, and bases such contention upon the fact that no witnesses positively testified that the death was caused by the gunshot wound inflicted by the appellant.
In homicide cases, the cause of death does not necessarily have to be established by direct evidence but may be proved by circumstances. 22 Tex.Jur. p. 726, sec. 172; Jennings v. State, 154 Tex.Cr.R. 211, 226 S.W.2d 126; Branch's Ann.P.C. sec. 1851.
Under the State's testimony, it is shown that the deceased was alive before being shot by the appellant, and that after the shooting he was dead at the scene with a bullet wound in his chest. There is no evidence of any other cause for the death of Robert Rivaz, than the shot fired by the appellant. Proof of such circumstances was sufficient to establish that the cause of the death of the deceased was the gunshot wound received from the gun fired by the appellant.
By Bills of Exception Nos. 2 and 3, appellant complains of certain statements made by the prosecuting attorney in his argument to the jury.
Bill No. 2, as originally presented to the trial court, states that the State's attorney said:
'That they (the defense) were going to show these people from Falls County that they (the defense) could come into Falls County and put something over on those ploughboys here.'
Upon appellant's objection thereto, the court instructed the jury not to consider the statement. The court, in qualifying the bill, certifies that the State's counsel, in answer to the argument made by appellant's counsel, stated that the defense counsel, with such weak argument, must think 'they could come into Falls County and put something over on these plow boys.'
We do not think that the statement complained of, as made under the circumstances shown in the court's qualification of the bill, was of such prejudicial character that the harmful effect thereof could not be removed by the court's instructions. Under the court's...
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Whitehead v. State
...being shot by appellant and after the shooting was dead at the scene has been held by this Court to be sufficient in Tellez v. State, 162 Tex.Cr.R. 456, 286 S.W.2d 154. We find no merit in appellant's objection to the court's charge on the ground that it failed to require the jury to find t......
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Defenses and special evidentiary charges
...Littleton v. State , 91 Tex.Crim. 205, 239 S.W. 202 (1922); Byler v. State , 106 Tex.Crim. 570, 294 S.W. 205 (1927); Tellez v. State , 162 Tex.Crim. 456, 286 S.W.2d 154 (1955). Cause of death may be shown by circumstantial evidence. Johnson v. State , 15 S.W. 647 (Tex.Crim.App. 1890). Exper......
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Table of cases
...947 S.W.2d 698 (Tex. App.—Fort Worth 1997, pet. ref’d) 1:380 Teague v. State 864 S.W.2d 505 (Tex. Crim. App. 1993) 6:400 Tellez v. State 286 S.W.2d 154 (Tex. Crim. App. 1955) 3:490 Tenery v. State 680 S.W.2d 629 (Tex. App.—Corpus Christi–Edinburg 1984, pet. ref’d) 4:180 Teniente v. State 53......