Pena v. State

456 S.W.2d 934, 1970 Tex. Crim. App. LEXIS 1431

• Court: Court of Criminal Appeals of Texas
• Decided: July 22, 1970
• Docket: No. 43066
• Status: Published

Opinion

OPINION

ONION, Judge.

The offense is assault with intent to murder with malice; the punishment, eight years.

All five of appellant’s grounds of error relate to the sufficiency of the evidence to sustain the conviction.

Phyllis Gutierrez, an employee of the El Patio Club in Robstown on May 14, 1966, testified that around 1:30 a. m. on that date she and other employees were in the kitchen of the club, which had closed for business, when the appellant and three or four other men appeared at the door seeking a person named “Chicken” (Delia Rodriguez). When assured that such person was not present, appellant and his companions began to demand that Leopoldo Rocha, another employee and the complaining witness, get them some beer and were informed Rocha did not have a key. An argument ensued and the door was broken in. The witness Gutierrez fled to a nearby bedroom. From a window she saw Rocha run across the patio, attempt to climb a wall only to be knocked down by two of the men who had entered the premises and stabbed with a knife by one of them. She was unable to identify the two assailants. Later Rocha was brought into the bedroom where she saw blood and observed he was “cut in the stomach.”

Andrea Garcia, another employee, related she also fled to her bedroom when the appellant and his companions broke into the kitchen. From a window she observed one Danny Perez out in the patio hand a knife to the appellant and she indicated the manner in which he (the appellant) was using it while bending over Rocha who yelled out “They got me, they got me.” The witness Garcia then screamed “The cops are coming” and the appellant and his companions left. Rocha was dragged to a bedroom. She testified that Rocha was “cut up real bad” in his abdomen and was bleeding “so bad” that she took her sweater, “tore it off” and placed tourniquets on him.

Leopoldo (Apollo) Rocha testified that on the occasion in question he was stabbed eight times and stayed in the hospital two weeks. He was unable to say which one of the four men stabbed him as he had poor eyesight and his glasses were broken prior to the stabbing.

Testifying in his own behalf, appellant denied participating in the assault upon Rocha. He admitted that he had been drinking beer and had gone to the club to look for “Chicken.” He testified that when one of the employees closed the door Domingo Rodriguez kicked the door in and entered with Danny Perez but he remained outside and later he saw Rodriguez with “a big fish knife” covered with blood. At this point he claimed he went home.

Considering all the surrounding facts and circumstances and viewing them in the light most favorable to the jury’s verdict, we deem the evidence sufficient to sustain the conviction. Flores v. State, 169 Tex.Cr.R. 2, 331 S.W.2d 217, 219; Hernandez v. State, Tex.Cr.App., 375 S.W.2d 285; see also Hall v. State, Tex.Cr.App., 418 S.W.2d 810.

The judgment is affirmed.