Morales v. State

767 S.W.2d 207, 1989 Tex. App. LEXIS 870, 1989 WL 34372
CourtCourt of Appeals of Texas
DecidedFebruary 22, 1989
DocketNo. 04-87-00453-CR
StatusPublished
Cited by2 cases

This text of 767 S.W.2d 207 (Morales v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morales v. State, 767 S.W.2d 207, 1989 Tex. App. LEXIS 870, 1989 WL 34372 (Tex. Ct. App. 1989).

Opinion

OPINION

CHAPA, Justice.

Appellant, Jorge Garcia Morales appeals a jury conviction for the offense of Voluntary Manslaughter Felony II wherein his punishment was assessed at confinement for seven years and a fine of $1,000.00. We affirm.

The issues before this court are:

1) whether the evidence established self-defense as a matter of law;
2) whether the trial court committed reversible error by not charging sua sponte on lesser included offenses;
3) whether appellant is entitled to reversal because he was deprived of a complete record in spite of his alleged diligence;
4) whether the trial judge committed reversible error in not allowing defense counsel a reasonable time to examine the court’s charge and object thereto; and [209]*2095) whether appellant was deprived of a fair and impartial trial because of actions of the prosecutor which “probably resulted in an improper verdict of guilty.”

Initially, appellant contends that the evidence establishes his defense of self-defense as a matter of law. We disagree.

This point of error is controlled by the application of the principles set out in Escamilla v. State, 464 S.W.2d 840 (Tex.Crim.App.1971), in a case very similar to the case here. In Escamilla, supra, the court stated:

There is no presumption in law that when one person shoots and kills another that he acted in self-defense. The burden is on the defendant to prove the same. Dover v. State, 102 Tex.Cr.R. 113, 277 S.W. 675.
The testimony shows that no weapon was found on the deceased or around his body, however, the deceased was advancing on appellant and the appellant testified deceased had a knife in his hand. There was positive testimony from three witnesses that they did not see a knife or other weapon on deceased before or after the killing. The testimony raises a issue on self-defense. The court fully charged on self-defense.
The jury rejected this defensive issue.
For there to be self-defense as a matter of law, the rule is as stated in Parkman v. State, 149 Tex.Cr.App. 101, 191 S.W.2d 743:
In making this contention, he recognizes the controlling rule to be that in order for a reviewing court to hold, as a matter of law, that a defendant in a homicide prosecution killed in self-defense, the evidence must be uncontradict-ed and no issue thereon presented for the jury’s determination. Parker v. State, 138 Tex.Cr.R. 478, 136 S.W.2d 229; Patton v. State, 129 Tex.Cr.R. 269, 86 S.W. 2d 774.
There being a fact issue present, the third ground of error is overruled.

In the case before us, the testimony of the appellant and the ex-wife of the deceased revealed that the deceased, at the time he was shot, was advancing in their direction with his hand in his pocket with something “shiny.” Other testimony clearly established that no weapon was found at or near the body of the deceased in spite of a thorough search immediately after the incident. Appellant vehemently testified he did not intend to shoot the deceased and his gun “instinctively” went off once without aim and in an upward direction. The first police officer on the scene found the deceased staggering with the right eye out of its socket as a result of a gun shot wound. Appellant testified that at the scene he was primarily concerned about the safety of the deceased’s ex-wife because of the violent nature of the deceased, and that he was sure he had missed the deceased when he had fired. However, he also testified that after leaving the scene he immediately returned, left the deceased’s ex-wife alone to pick up her car, and immediately left to a friend’s house to go across the border to the red light district. Further, although appellant insisted he was sure he had missed the deceased and felt only responsible for illegally discharging a firearm, he nevertheless disposed of the gun, which was never recovered, in a sewer gutter. We conclude as in Escamilla, supra, that the evidence raised a fact issue on self-defense to be decided by the jury. The point is overruled.

Appellant next contends that the trial judge committed reversible error in not charging sua sponte on several lesser included offenses.

Ashworth v. State, 418 S.W.2d 668 (Tex.Crim.App.1967) controls here. The court stated:

In her ground of error # 2, appellant insists that the court erred in failing to charge the jury on the lesser degrees of culpable homicide, including assault with intent to commit murder, pursuant to the requirements of Articles 37.08 and 37.09 of the Code of Criminal Procedure.
No request was made by appellant that the court charge on any lesser included offense and no objection was made to the court’s charge on such ground. In the [210]*210absence thereof, appellant is in no position to complain.

Id. at at 670.

The record here reflects that appellant did not object to the charge nor submit any requested issues in writing or orally. TEX. CRIM.PROC.CODE ANN. § 36.14 (Vernon 1988). Therefore the appellant is in no position to complain. The point is overruled.

Appellant next argues he is entitled to a reversal because he was deprived of a complete record in spite of his alleged diligence. He suggests that simply because he requested and was granted a court order at the commencement of the trial that a complete record be made, he was relieved of any responsibility for diligence thereafter during the trial. We disagree.

In Walthall v. State, 594 S.W.2d 74 (Tex.Crim.App.1980) the court stated:

It is the responsibility of counsel to advise the trial court if he desires to have the proceedings or any part thereof reported. Art. 40.09, V.A.C.C.P.; Taylor v. State, 489 S.W.2d 890 (Tex.Crim.App.1973). While appellant had requested that the trial proceedings be recorded, it was nevertheless incumbent on him to object if the bench conferences were not held within the hearing of the reporter or recorded by her. Appellant did not object during the trial, nor did he object to the record after being notified of its completion. See Art. 40.09, Sec. 7, V.A.C. C.P. Moreover, appellant has neither shown nor alleged that anything pertinent to this appeal took place in the unrecorded bench conferences. Reversible error is not presented.

Id. at 81.

Appellant further complains because the record does not include some of the bench conferences. We note, however, that in registering his complaint, appellant fails to allege that he objected to the charge, that he submitted requested instructions, or that he insisted on the court reporter being present at the bench conferences.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Christopher Lozano v. State
Court of Appeals of Texas, 2007
Parra v. State
935 S.W.2d 862 (Court of Appeals of Texas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
767 S.W.2d 207, 1989 Tex. App. LEXIS 870, 1989 WL 34372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morales-v-state-texapp-1989.