*1 112 Relators, hand, corpus Pre- on the other contend that
tion for habeas writ of thereof, up special judge therein the election of the was au- siding Judge setting by statute, official illegally that of their thorized that the acts of were restrained lawful, County by liberty special judge and that the Sheriff of Duval improper upon part bad faith or virtue motive of an order of commitment made relators, county. any, The of the if Judge the District of said was and .immaterial contempt. to could not constitute granted writ was and made returnable present day this the first Court on of the questions appear to be by our term. A has been made motion civil in nature. ap- Attorney State’s dismiss relators’ to plication, motion accompanying above, and said of ap- view we deem it propriate is an Duval say that, affidavit the sheriff of in the event of a time application recites that at further cor- writ habeas pus by the writ not in granted was relators were vаlidity relators attacking custody by of-any commitment, order virtue written this Court will exercise County. jurisdiction of the only upon District Court of Duval its a showing that An examination of the record the civil courts pass reveals declinéd to Judge made order of the legality District an oral of the confinement of relators commitment, сontempt the relators surrendered under the decree. re- deputy
themselves and sheriff ' Applications for writs corpus of habeas quested place jail, him them in that the are dismissed. application presented writ was Court, Judge bail Presiding' of this released; granted, was relators this, the Following Judge signed District judgment finding guilty relаtors of con- them,
tempt committing there-
after each them was arrested made
sheriff each bond. ALCORTA, Appellant, Alvaro is the settled law of this State Judge authority
that- a District has no v. person for commit a constructive con Texas, Appellee. The STATE of tempt parte verbal Ex on a mere order. No. 28080. 97, Eager, Tex.Cr.R. 79 S.W.2d McMurray, Tex.Civ.App., v. Harbison Appeals Court Criminal of Tеxas. 680, cases there S.W.2d cited. May 30, 1956. Rehearing Denied Oct. 1956. application Since the for the writ corpus prematurely of habeas made application granted, will be dis parte Jonischkies, Ex
missed'. 88 Tex.Cr. 129, 224
R. S.W. 109.2. contempt predicated decree is conduct, theory relators’ includ- special judge, of a elеction
ing the regular order of the
violation judge time for’the
providing sessions during the court term. *2 Roy Green, Atty., Jr.,
Hubert W. Dist. Antonio-, Barrera, Atty., R. San Asst. Dist. Austin, Leon Douglas, Atty., B. State’s the State.
WOODLEY, Judge. murder; pun-
The conviction is ishment, death.
Appellant admittedly killed his wife stabbing and her with a knife. cutting At the deceased time of the homicide the was seated in of her an automobile front house, company Nati- with one appellant appeared vidad Castilleja, when with began knife in to cut and hand and though stab her. He his assault continued Castilleja attempted car and started the off, throw him rocks then kicked and threw Castilleja away at him until ran with his knife.
Appellant charge Castilleja’s then took deceased, away car and drove final- with the ly dragging de- the car and positing County. in a it creek Atаscosa in that Thereafter he abandoned and, traveling after to Laredo and Valley, Rio returned several Grande days he ob- later Antonio where to San pay and cashed his last check. tained day apprehended following He was traveling from San Antonio he was north Boerne. toward par- Apрellant were the and the deceased sep- been of three children. had ents for several months. arated killing Appellant reason for gave as his that, drunk, he was saw wife the fact his Natividad, and kissing knew men going with and was not other , .proper the children. He taking care of justification to no lawful1excuse the.killing, gave the reasons indi mitigating circumstances. cated - fpr appel- E. P. shows State’s Antonio, appel- Lipscqmb, San. ev-id.ence peace under placed bond lant. had been lant skull, ex- complaint earlier deceased, and that were no wounds on the cept face.” threats those the-day had made before mentioned on of the homicide to kill her. expressed opinion Dr. McMahon *3 though causes, death was multiple and exception, There is but one bill of there were the vital enough wounds in re ground which is to claimed show her, structures have that would killed versal. is addressed the were vital so lacerations had no photographs (5) large in evidence “Five of structures punctured been she would defendant, such the of the of deceased wife anyway. died showing photographs in the and taken nude body of thirty the stab on (32) two wounds Appellant be- took the his own stand in deceased.” and, half though admitting stabbing and the wife, accuracy killing of questioned the that such exception The bill shows of of the testimony that had been offered objec- the photographs over were admitted nn the State. prej- inflammatory and tion that were bearing case. direct udicial and the On am had no on examination he testified “I trying guy accuse this (Natividаd the bill qualification The trial court’s Castilleja) trying, my of kill certifies, however, exception that: “said of anything, but I know he her with a hit were allowed to introduced be rock on her size head. The the rock was in bearing the question on of malice the cantaloupe of a and she must have'had bearing question case and further as on the ** * injury to the her head ducked I of of the defendant that denial .the rock and I saw that rock hit her and body in deceased were of the forward, back; fell then and she 'went represented by medi- number and as why legs hanging that’s her out’ testi- represented cal officer and the door when I took out and in the car mony in case of the officer witnesses open.” (Emphasis the door was supplied.) making a fact issue on a material material * * issue in On testified: cross-examination . “How could I stabbed 32 times fully sustains the court’s record speed going zig-zag- with the car full and qualification. in the-State’s case chief On * * * ging and being drunk and аll? . testimony to "that 32 there was the effect say times; didn’t I stabbed that’s n cutsand stab wounds and bruises were * got what *\ (cid:127)*. here. I did stab body. found maybe so, 9 times or but exaggerated. You can’t sit- stab a woman McMahon, Jr., David Assistant Dr. T. ting running in a zig-zag Officer, Bexar- Health who made yourself running on the board with .and .embalmed, autopsy .body after times (in- a knife stab her 32 from here -25 or 30 sewed testified that there dicating) to her head.” face, chest, neck, thighs lacerations over legs, varying from one-half to four Also on cross-examination length; in lacerations over vital inches pants tified that blood on his “came including two in neck' structures hit from where the rock wife in the and оver "the in the chest heart and several up because her head was laying head here punctured which lungs, one of heart (indicating).” side on the kings, and-one" the neck others Upon the photographs rebuttal com- jugular the left external vein. severed plained were offered admitted. further “the skull was ex- the nude deceased He show after burial, completely minutely externally prepared it had and clearly amined
H5 overruled, testimony of they approve introduc- illustrate the correctness of tion in one, knife wounds. evidence State’s witnesses as of—not five— deceased, photographs the absenсe the nude also show proba- would numerous shown wound on the head such as wounds are bly tending any way struck solve have resulted had she been any disputed issue large in the case. rock. Now let us examine the facts: in the brief Authorities cited are to both the State and the presentation testimony, of its *4 which, light in photographs effect that chief, proved detail, by in some state arriving in whole aid witnesses, thirty-twO' twelve or thirteen matter, illus at the truth serve to body stab wounds and their location on the question, or point some trate some or solve of the deceased. with the light upon connected shed matters testimony There was line of аdmissible, proper are solution of the case any person testimony directly attacking the serve only photographs and it is where the of those witnesses. purpose calculated legitimate no and are jurors seriously inflame the minds of the All the that deceased showed more them to return a and tend tо cause by the by came to her being stabbed for or facts call onerous than the verdict appellant denied with a knife. No witness photographs excluded. justify such are fact, appellant that in his admitted it 582, 223 State, S. Tex.Cr.R. Gibson v. 153 confession. State, 625; Tex.Cr.R. v. 155 W.2d Mouton State, 645; 156 450, v. 235 Cantrell S.W.2d Testifying as a witness direct ex- 387; Griffin v. 329, 242 Tex.Cr.R. S.W.2d aminatiоn, appellant admitted killing de- 587; 27, State, 198 S.W.2d 150 Tex.Cr.R. ceased, wife, who by stabbing was his 12, 266 Ray State, S.W.2d 160 Tex.Cr.R. v. with a knife. At no time in his direct tes- 124. timony challenge he the state’s witnesses as to the fact that he the evidence rule stated and Under the by killed deceased stabbing her with a knife him, not err court did the trial before or as to the number and location of and the bill of photographs, admitting the wounds inflicted. no qualified shows error. exception as affirmed. judgment Appellant’s is testimony showed facts that
mightNauthorize punishment. mitigation imposed. No other defense was asserted or DAVIDSON, Judge (dissenting). issue, facts, of this court There was no under these long has It' appellant’s guilt deceased or or as to the fact that he pictures of that knife; stabbing killed her with body are not admissible his only appellant. such fact was admitted become so when evidence disputed in the issue to establish tend existing when That the situation 139, State, 49 Tex.Cr.R. v. Willis case. See over the state took cross-examination of 1100; State, Gibson v. 153 Tex. 90 S.W. appellant. 582, 223 S.W.2d Mouton v. Cr.R. State, 235 Tex.Cr.R. S.W.2d 645. thing counsel for The first the state had rule, exception and not the It is identify signature do was to his itself, that authorizes the rule which the state to the confession offered in pictures. such In that confession evidence. ad- brethren, by stabbing his wife here, mitted that killed holding of Under effectually “any number of times” with a longer and is knife. no exists rule that in the con- challenge He did statement the state these facts that tended, such a agree, confession. brethren appellant’s guilt material issue as to cross- grueling After an extended and case as the evidence examination, proceeded state’s counsel then in evidence introduction of replies from interrogate and receive this, face of was warranted —and to the number of wounds appellant’s not and testimony that he did body, as follows: wounds, him- could have counted the self, of de- “Q. or that he examined Did hear the Doctor ceased, position know tify 30 stab that he were 25 to Yes, the number of wounds. your wounds on ? A. wife’s I heard that. ap- in the Did The sole issue case was: A. Yes. [******] “Q. The Doctor testified 25 to 30? uncontradicted facts so show. Whether pellant a knife ? He admitted that he did kill by stabbing her with *5 thirty-two wounds killing the resulted from them? “Q. the officer counted And necеssary or from a fewer number was not standing on A. You can not do that or to to be determined in order to convict going running the board and the appellant’s guilt. fix zig-zagging and— that’s a lie. the the tive she was hit with the rock. fy that there were 32 stab wounds on wound on or wound on her head. it didn’t your tify “Q. “Q. “Q. [*] “Q. is; testified head, body? that he counted 32 wife’s I betcha say anything In addition to that wound on Is That’s Did did A. She didn’t have no to. you body? you head because framed hear Officer Saenz (sic) frame-up? hear the officer testi- A. about the n stab wounds up? That amI [*] A. Sure is A. got injury what posi- the n He on purpose wounds on the the state’s cross-examination how she came the in evidence. authorize the introduction of the issue or that. lant. could not have been the semblance of of wounds on not rogated appellant, their I can reach no other conclusion but that As above It must be purpose go location Up into the testimony until securing pointed remembered the was determining question the body; the in the case which would not mentioned out, death, time the state number of wounds of the deceased or the there was not and as to the but state, the was appellant number of itself, pictures not number for the appel- inter- any for did did contradicting as a basis get- for “Q. There weren’t 32 stab wounds pictures ting evidеnce —but body? A. them, on I didn’t count which it could not be done. The state how times I stabbed her. sought to do indirectly that it which could “Q. You could have stabbed her 32 directly. not do many; A. 32 is too times? them, places impossible any that’s If there were issue as to the number wounds, way happened; everything too state made the issue and dеveloped standing do that issue; can not on the the facts to show run- such going and the car ning zig-zag- state, then, board did not do so. The way ging contradictory she was. relies facts which it impossible.” developed That is its testimony. own I can pur- brought A which is no conviction about state by the action to that ascribe prejudiсe, of passion issue result aroused a fictitious create than to pose other engendered minds of getting purpose of sole testimony, per- not ought inadmissible not to be otherwise could jury, which before mitted to stand. lawfully be done. Moreover, on appellant's know, when For I may all this Latin-American anаlyzed, is found it deserve the penalty stabbing cross-examination of wife to hugging number death when he found not referring he is kissing another But is not man. such witnesses state’s wounds for me to determine. the deceased body of upon the finding thirty-two inflict not he did fact that my duty It is appel- to determine whether challenge the He did thereon. This, lant had a fair trial under the law. body. thirty-two wounds existence (cid:127)am convinced, he was not accorded. know witnesses state’s The I dissent. testify that could therefore body. thirty-two wounds inflicted Motion, On instance, for Rehearing first .then, apparent it isSo contradiction really no MORRISON, Presiding Judge. witnesses. the state’s testimony of nude showing pictures, form the basis five *6 n positions ghast- appeal, for this have been in various the deceased described — they are —were horrible, as ly ghastly . . and horrible. a sense this calculated any inflammatory picture true of upon highly preju- perpetrator acts of have been violence against arousе committed. The They were them. portrayed pictures who viewed these those dice of had been cause, cause, and lay prone cleaned on a clearly hospital calculated bed. But penalty. death not taken at the jury inflict scene of evidence, crime, weapons no bloоd or their were vis assessed opinion ible. We concluded originally —in that an issue —would appellant’s penalty. made as to number of wounds he had in place speculation is no as to There flicted of the deceased, to appellant by injury to the introduction gether with his Castilleja about pictures in evidеnce. (cid:127)of the injury having an inflicted to her To head. writer it is immaterial this issue pictures admissible in evi- raised cross-examination. It was respect only dence. out the defendant’s testimony. n deadthat incorporate pic- I do not those opinion. n Now return to a in this tures description pictures. opinion herein Our is nоt to be could, length, at some discuss the rea- necessarily construed as authorizing the in- son back of which rests the rule pictures at troduction taken the scene of forbidding the evidence of use in pools lying blood, the crime but we body of the deceased showing do hold here that such as these thereon in a murdеr case unless disputed which tend. to solve issue are disput- tend to solve some material and admissible, especially when taken against my- ed issue but I will content possible inflammatory the least background. self, here, by calling attention to the fact by jury contemplates Appellant’s trial motion for rehearing fair trial is over- law, passion prejudice. -under the without ruled.