*1 264 There (Tex.Cr.App.1969). 842
S.W.2d fore, present case was objection CRUZ, Elias Appellant, B. State, supra; v. made too late. See Jones v. State, supra. v. Martinez STATE of Texas, Appellee. The record stated
Although the court No. 44898. at the was made objection should show Appeals of Court of Criminal Texas. appel- because apparently opportunity, first May 24, 1972. confron- of the informed lant had not been support tation, not record does July 26, Rehearing Denied Therefore, statement, earlier. as discussed pre- error, properly any, if not served. Deputy of
Likewise, admission describing Mrs. Worth- testimony
Russell’s not appellant was
an’s confrontation with a
error, make in of the light failure testimony
timely objection to the earlier The
concerning the confrontation. same been admitted having earlier
same evidence appel overruling of objection,
without a objection does not warrant
lant’s second reversal, State, Younger v. 457 S.W. g., e. State, v. (Tex.Cr.App.1970);
2d Merx 67 Ap (Tex.Cr.App.1970).
450 658
pellant’s grounds error first and second
are overruled. error, ground appel
In his third Russell’s Deputy
lant further contends that
testimony concerning Gayle Worthan’s improperly
bond office identification was
admitted, rule, being a violation State, Lyons
as stated v. 388 S.W.2d prohibits a (Tex.Cr.App.1965), which party corroborating
third from a witness’
testimony of an identification. out-of-court undisputed, testimony
Where such objection
record reflects that no
ground made to the admission
testimony. elementary It is that an may objec
lant rely upon ground
tion which he has not raised State,
the trial court. Golden v. 475 S.W. State,
2d 273 Hinkle v. (Tex.Cr.App.1971); Cork (Tex.Cr.App.1969);
442 S.W.2d
(Tex.Cr.App.
1962). judgment is affirmed. *2 sufficiency of evidence is chal-
The lenged. Guerra, and Onesimo Donias
Rodolfo Fer- deceased, walking down San were aft- Antonio sometime in San nando Street They 16, 1969. midnight August er house brown of a small in front walked it. parked near Chevrolet with a 1959 Don- to house called persons at the Three three Two the deceased. ias and and approached appellant) (including cursed cursing. The started appellant. cursed and Donias Guerra what understand to appeared not Guerra companion on, and going was for- go and appellant “to back finally told companion and his get it.” began and Guerra and Donias did leave briefly two to again. They talked walking the car Then boys they met. young house the brown front of parked “going Guerra them fast.” toward came street, him near- placed crossed car car. The passenger side est the out of jumped stopped and someone Donias. fighting started back seat and and Guerra heard some shots Donias then had saying he street back across came to went back been shot. Donias’ assailant said, him “Let’s finish and car someone peo- only three Donias testified off.” who never car: ple driver were front out, got who side, out got whoever and passenger on the Don- fought him. While of the back and await- kneeling the deceased ias near Wier, Garland Antonio, ap- G. San running for men police, three ing he saw pellant. ar- police until the He hid toward him. rived. Ted Butler, Atty. Dist. and Antonio G. Cantu, Antonio, Atty., Dist. Asst. and and San that he testified Gonzales Joe John Vollers, Atty., D. Austin, State’s the street walking down were Paul Guerra Jim
the State. peo- question and saw four time in arguing. He iden-
ple, were two whom the two. being tified Donias OPINION up a car broke argument Shortly after people inside called Gon- up, the came DOUGLAS, Judge. per- go because zales, he but refused gun. had a passenger This is the front side jury an from a son on conviction gun of murder testified with malice. later The court assessed Gonzales asked where punishment years. pistol. He was at fifteen .22 caliber left, legal competent and evi- went, must then car There be boys two identifying defend- pertinently shots. dence heard some stopped Gonzales constituting the being the transaction appellant as ant with identify the He did not charged against him.” either or involved. offense cousin, Lopez, appellant’s testi- *3 appel shows that the The record of Chev- that he the driver a blue fied was shortly prior to lant cursed the deceased He said the question. at the time in rolet offense, only one was identified as the the him the next to on sitting was gun possessing (a pistol), a in the car .22 brother, (or passenger side and his Jurado only person the in the car on the and was Lopez, back He Gerando) the seat. the deceased was located side where when brother he nor his testified that neither shot. Besides the and the driver appellant did have one. gun, a but the had (on opposite side the of the car the from He heard shots. some only occupant other out deceased) fighting side the car with Donias when Hernandez of the Paul Pete San Officer shots find the evidence were heard. We Department received a call Antonio Police every reason to exclude other sufficient scene shooting about a and arrived on the hypothesis except appellant’s able that of talking a After few minutes afterwards. a guilt jury to to conclude to allow alive, with was still Hernan- Guerra who certainty ap and moral reasonable put a call white and dez out for a 1959 pellant shooting. did the blue Chevrolet “three Latin American with weapons occupants.” male He found no Appellant’s ground of error is second on the deceased or at scene. closely to the He contends related first. should Court treat the case Lopez, pathologist, Dr. assistant testified showing one reasonable doubt as matter gunshot that the deceased died from a of His based on the fol- law. contention is causing He sent bullet that wound. lowing rule: police. wound to the San Antonio Lt. Joe Depart- Morales of the San Antonio Police circumstantial relied “Where evidence ment identified the bullet received from weak, by prosecution obviously Lopez Dr. aas caliber bullet. .22 and where the record on affirma- tively only not that testimo- error, In shows ground his first ny which would cast additional have contends the evidence was insufficient to light on the facts was available to the connect him with the commission of the prosecution, prosecution but also that the crime. The properly charged trial court did not introduce such other evidence or jury regard- circumstantial evidence satisfactorily ing account for its failure to commission of the of- so, appellate do court will treat fense. showing case as one reasonable doubt of The rule expressed in this State is in 4 sufficiency sup- of the evidence to Ann.P.C.2d, 2053, Branch’s page Section port Tex.Jur.2d, the conviction.” 24 Ev- 363: idence, 745, page Section (1961). 427 State, See also Tex.Cr.App., Anders v. “To sustain a conviction circum- [on 167; State, 445 Williams S.W.2d v. stantial it should only ap- not evidence] Tex.Cr.App., 503; 429 Ramirez S.W.2d pear charged an offense as has been 163 Tex.Cr.R. 289 S.W.2d committed, but there should also be proof degree certainty to a greater
than a probability suspi- mere or strong
cion tending to party establish that Appellant claims other witnesses charged person was the who committed were available to whose testimo State it participant or was a in its ny light upon commission. would have shed additional theory upon trial not deference said it could the facts. The State case, appellant’s studious counsel tried credibility of these witnesses vouch holding distinguish this attempt I will court them the trial call and moved to have majority on by the from the reached the motion was as its witnesses. While State, 163 Tex. rehearing Ramirez v. overruled, the State satisfacto- we believe 251, upon which he for, needed, rily if its failure to Cr.R. accounted relies. call these witnesses. Ramirez, contested issue In the crucial Appellant further claims that intoxicated whether the defendant sufficiently question did one of State A accident. the time an automobile witnesses, Lopez, appellant’s its opinion in his an toxicologist testified cousin, apparently as to whether showed that analysis of blood accused’s lant was person who shot deceased. physician, A who was intoxicated. accused *4 Lopez prior by Two written statements hospital, stated appellant at the examined pistol. said shoot that did the not in- opinion accused was that in his the by These were introduced the statements testimony, to- conflicting toxicated. This hearing- appellant’s State at the on motion conflicting evidence con- gether with other attempted only for a new trial. State collision, Ramirez an ob- cerning the made Lopez’s by did establish and establish upon the viously It was back- weak case.
testimony in the that on ground of that this Court these facts car, passenger front side that rehearing conviction because reversed gun, gun, lant had that no else one had a highway question two the State failed to Lopez and that heard shots. to es While proximi- patrolmen also in close who were corpus tablish in a delicti murder case shortly the acci- ty to the defendant after agen State show must the defendant’s of intoxica- about state dent act, cy in gener commission of see tion, testimony being other available their ally Ann.P.C.2d, 2066, 4 Branch’s Section have cast additional testimony which would page 376, necessary it was not for light on the facts. try by State to this to establish rath direct However, bar, unlike case at Ra- er than circumstantial evidence under the mirez, only supra, appellant was facts and circumstances of this case. The placed one at the of the crime with a scene appellate rule that the court will treat only gun and is to be the one in a shown case as showing doubt reasonable position to deceased. There is shoot the where the State has failed to introduce seriously testimony on these no inconsistent available which evidence would cast have points. crucial light additional applies only the facts where the State’s circumstantial evidence case, If additional testi- a weak case is “obviously weak.” Nilsson v. mony by Lopez may have been Tex.Cr.App., 477 n. 1. valuable but since there was sufficient evi- The circumstantial evidence in the dence to with the connect case is obviously weak. crime, testimony, given, his was suffi- cient.
No error is judgment shown. The af- firmed. Likewise, testimony other wit- not called subpoenaed
nesses who were unnecessary sufficient since there was MORRISON, Judge (concurring). Additionally, inculpatory evidence. I operable only have concluded when there that Ramirez becomes was not a showing weak and, is a circumstantial evidence is a weak and there case case therefore, testimony agree majority opinion with the record is “other there addi- have cast affirming However, out of which would the conviction. [available] it facts. In Ramirez light tional on the testimony high-
was evident case In the
way was relevant. patrolmen in- bar, vital showing is no what
at there con- could have these witnesses
formation the motion note that at
tributed. We (or
new trial it was shown Jurado Lopez, in the back seat Gerando) who was shooting, time car prior homicide unconscious to the
knocked
and, therefore, not have testified could the actual surrounding
the circumstances
shooting. stated,
For the reasons the rule inapplicable to case
appellant relies is I
before us and concur the affirmance. *5 FLOWERS,
James Appellant,
The STATE of Texas, Appellee.
No. 45093. Appeals
Court Criminal of Texas.
June 1972.
Rehearing July Denied Bruder, Barry Helft
Melvyn Carson P. appointed appellant. (Court appeal), B. Atty., Henry Wade, Dist. James Dallas, D. Scott, Atty., and Asst. Dist. Jim Hut- A. Vollers, Atty., Robert State’s Austin, for tash, Atty., Asst. State’s State.