Zamora v. State

• Decision Date: 05 November 1952
• Docket Number: No. 26005,26005
• Citation: 158 Tex.Crim. 85,253 S.W.2d 277
• Parties: ZAMORA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 277

253 S.W.2d 277

158 Tex.Crim. 85

ZAMORA v. STATE.

No. 26005.

Court of Criminal Appeals of Texas.

Nov. 5, 1952.

Rehearing Denied Dec. 10, 1952.

M. C. Gonzales, Joe F. Brown, San Antonio, for appellant.

Austin F. Anderson, Criminal Dist. Atty., James C. Onion, Asst. Criminal Dist. Atty., San Antonio, George P. Blackburn, State's Atty., Austin, for the State.

DAVIDSON, Commissioner.

Under an indictment charging the offense of assault with intent to murder and two prior felony convictions, appellant was convicted of the offense of aggravated assault and his punishment assessed at a fine of $1,000 and two years in jail, being the maximum punishment affixed to that offense under the provisions of art. 1148, Vernon's Ann.P.C.

The difficulty out of which this conviction arose occurred about 3 o'clock on the morning of September 15, 1951, outside of and near a beer tavern. All the parties had been drinking. It appears that appellant's automobile was parked in such manner as to block the exit or passage of the automobile of Meyers, the injured party. Meyers honked the horn of his car, seeking thereby to have appellant move his car. Instead of moving his automobile, appellant told Meyers to drive around him. In attempting to do so, Meyers' car slid in a ditch and bogged down in the mud. This angered Meyers, for he blamed appellant for the situation. An argument between appellant and Meyers terminated in Meyers hitting appellant with his fist and almost knocking him down.

Thereupon, appellant drew his pistol and, as he did so, Meyers 'took off running' with appellant pursuing and firing at him. According to the testimony of Meyers, seven shots were fired at him at three different intervals, one bullet striking the back of his head and inflicting what a doctor in his testimony described as a 'linear scalp wound.' According to Meyers, after he had been struck by the bullet appellant overtook him and snapped the pistol in his face, threatening and saying that he was going to kill him and at the same time kicking him with his feet.

Appellant admitted firing some shots, but testified that they were fired into the air and not at Meyers. He denied any intent to kill, though admitting that he struck Meyers and knocked him down and also that he kicked him.

The testimony of Meyers authorized the jury's conclusion that appellant was gulity of aggravated assault not only by the use of a deadly weapon but also by the infliction of a serious bodily injury.

Bills of exception appear complaining in various ways of the receipt in evidence of the testimony as to the prior convictions. It is not necessary to discuss these in detail because, under the charge of the court and the finding of the jury, the prior convictions passed out of the case when the trial court expressly instructed the jury that in no event could same be considered upon the issue of appellant's guilt. As the jury acquitted appellant of the felony offense of assault with intent to murder, the prior convictions were not applied to the offense of aggravated assault as enhancing punishment.

Complaint is made of the overruling of a first motion for a continuance because of the absence of the witness Foster, by whom appellant asserted he could have corroborated his defensive theory. The motion, upon its face, shows that the witness was beyond the jurisdiction of the court and in a distant state with no fixed or permanent residence. There is nothing in the record to indicate that the attendance of the witness could be secured by a continuance of the case at some future time.

We are unable to conclude that, in view of the circumstances stated, the trial court abused his discretion in overruling the motion for a continuance...