*1 In this аppeal, appellant complains of the refusal of the trial court to submit a GAMBOA, Appellant, Gardenas Manuel a charge Such timely requested in writing by appel- filed objections lant who also written and to thе court’s exceptions complain- No. 50020. omission of the ing of the Appeals of Texas. of Criminal charge. The evidence showed that abrupt had an 14, 1969, on June separation and that she the children and went took live with sister-in-law, G. Although the deceased. the children subse- returned to live with quently appellant, his family wife remained with the of the de- 30, 1969, June ceased. On without being dis- charged, where he had been receiving heavy for an injury. medicаtion old back After a at the home of his stop appellant went to the deceased’s home sought he once more where unsuccessfully his wife to persuade return to him. arrived at deceased’s house аround 30. The evidence conflicting, but there was some mony that four of deceased’s children were asleep in the room at the time. De- child, Rosalinda, eldest ceased’s was awake in a darkened bedroom of the house. Jane Rivera arrived at shortly deceased’s house Rosen, Houston, Woody & for after but left fifteen minutes la- “patting down” ter after her brother and Vance, Atty., Dist. James C. Carol S. ascertaining that he was unarmеd. Rivera Stewart, Brough Attys., and Stu Asst. Dist. speaking softly Houston, Vollers, Jim D. Atty., State’s pleading his wife to come back to McAngus, Asst. Aus- Atty., David S. State’s left, him. Moments Rivera Rosalinda tin, State. testified she gunshots. heard four stepped quickly to a dining She in the OPINION unclе, where she could see her appel- room ROBERTS, Judge. herein, placing a not see her mother from appeal is an from a conviction for This position, nor could she murder with malice remember if offense of afore- sisters, mother, her brothers and thought under Arts. 1256 and V.A. beside was tried before a wife were in the living P.C. punishment at thirteen assessed at the time. She testified that imprisonment. ripped off the wall and years’ *2 room, juxtaposition proved In the both to the main fact to be house. the equivalent to direct testimony dead to be obvi- Minnie Gamboa were found as charge need for a on ating the circumstan- wounds. of Farris v. 496 S.W.2d tial evidence. to p. аppellant returned Around Rivera, who house the is reversed and the cause time that the first noticed remanded. gathered all his children a in a truck he had stolen placed them DOUGLAS, ap- Judge He was (dissenting). for Coloradо. departed time later. a short prehended majority reverses conviction be- did not jury the court instruct the cause trial, witness Gam- the Rosalinda. At the depending upon was a case circum- that this identify the .22 caliber unаble to boa was stantial pistol as into evidence the introduced pistol in his on placing pocket uncle saw her she the The court instructed that before say shootings. She could of the night the beyond it must a rea- сonvict find it could plac- she saw her uncle pistol the only that doubt that with malice sonable white handle and a ing aforethought unlawfully voluntarily barrel, the one in but like a gun. Gamboa with black killed Minnie kept similar-looking a jury “[ujnless mоther also the you her also instructed that doubt, The witness Rivera beyond you in the house. or if pistol so find thereof, you had had a that if doubt will a reasonable testified have question, the date in 11:30 m. on the defendant.” acquit to рrior him- noticed it. have would she the that “the The court in evidence that the self testified presumed to be innocent until is defendant owned, he had but resembled by legal established evidence guilt is same one. sure if it was the not be doubt, you and in ease beyond a reasonable Sillivan, expert, a ballistics Randy doubt as to the defend- a reasonable have from probably bullets came fatal the that guilt considering all the evidence ant’s bеen unable to deter- .22, that he had instructions, you and these will you, before the bullets had come that mine judges the him. You exclusive acquit are weapon in evidence. credibility proved, weight given their and the to be witnesses thus against appellant was The evidence ” testimony. . . . While the circumstances circumstantial. suggested guilt, strongly adduced charge on circum- the last few In pro- of the factum evidence no direct required by this has been evidence stantial fire the one saw No bandum. before. Now it than ever more evidence was there direct Nor shots. fatal majority considers a circum- that pears killed the deceased which the bullet charge sacrosanct unless evidence stantial weapon later taken every to element testifies eyewitness an circumstances, Tex- such Under majority now hold in a Would the case. charge on circum- that а requires eyewitness law an as case that unless Ann. given. 4 Branch’s be evidence the bullet fired a de- stantial he saw fies ed., p. 357. The State P.C., charge Sec. deceased a on cir- 2d hit the fendant however, are in contends, given? must be cumstantial they amount juxtaposition usually today are educated. charge on therefore a to consider the evidence such able They are needed. evidence is not circumstantial judgе having to case without in this us, pull we that no one saw before them of the record tell basis On the trigger. were in such close facts think the do failure give
Unless the would few minutes later. Rosalinda result, error, a different any, elevеn-year-old cause if daughter Minnie, Let harmless. us look to the awake in the bedroom waiting to take giving to see if the this case heard appellant a bath. She walking and would have caused Aunt Maria in the living *3 jury to have rеached a room. then heard different result a shot and immedi- jumped up and ran ately and found to where she guilty. see into the room. On the way she alleged The victim in the indictment was several shots. Immediately heard after thе wife of fired, Manuel, shots were she saw her Uncle Maria brother. putting appellant, Her killed in the same room at was the same sitting was in mother a chair. He then by time three shots from a .22 caliber turned, started to leave but he back, Minnie Gamboa was over tele- pulled cord and receiver loose at the time she was phone Appellant shot. and then left. in put immediately after six away About blocks house, was the last shot fired. Two small children appellant robbed William Thompson of a sleeping in the room where the two gun point. truck at This was a McCane- were killed. There was no women Sondock, burglar alarm company truck, struggle part оn the women. No equipped two-way with a radio. Appel- in weapon was found the room. lant’s children arrived at Janie Rivera’s Appellant wife, Maria, and his had five just house in a taxicab ahead of appellant. children. Minnie Gamboa and Maria and He took the children in the truck and said children went to a dance and did not going to Colorado. Appellant ran a until around return two o’clock in the morn- roadblock that officers had up set near ing. Appellant and argued about pursued Officers Stafford. him and shot separated this and 1969. Maria the tires of the truck. Appellant stopped and her children went to live with Minnie. and let all of the сhildren go except one later, days appellant, A few with Maria’s who was three age. He abandoned permission, took the children to live with Sugar truck near Land. A Dodge Dart him. belonging Rosell, Jr., to T. C. which was shooting, Prior to the appellant went to Sugar stolen in Land during the early pain from old morning July 1, 1969, hours of was recov- injuries to his back. appellant, On June near the Rivera ered residence in Houston. being discharged, without covered his fаce Appellant returned to the Rivera home at paper with a and left the hospital. put He 4:00 a. m. about and threatened Janie paper padding his bed to make it Flores, daughter of Mrs. with a appear that he was in it. A nurse saw him Janie pistol. Flores called the police. leaving and asked him to return get was arrested that night he He refused. He release. went to his sis- fully loaded .22 caliber got ter’s house and his children and then twеnty-six rounds of ammunition. nephew his niece and a get started to Joseph A. Jachimczyk, Dr. chief medical ready trip for a to Colorado. His children County examiner of Harris whose qualifica- stayed at the house and he wеnt to the stipulated, tions were testified that Minnie home of Minnie where Maria was staying. and Maria Gamboa each died Rivera, appellant’s Janie three .22 caliber wounds to the called to the house Minnie. Janiе ar- head. He related that the shots in the head 10:55 p. rived about m. of 'Minnie Gamboa were fired at a distance urging Maria to come back to him. She approximately inches or less. The go Janie Rivera left to rеfused. to work a that killed Maria shots Gamboa were fired about four inches to a distance of harmful. See Articles through 36.16 36.19, inches. twenty V.A.C.C.P. This Court should follow mandate. at the pistol taken an inex- apparently arrest was time something.of It should take at least sub- type. Ballistics tests run pensive or inferior to reverse a conviction. stance Mark me in the house of the slugs found on the dissenting to frivolous, reversal on such a evidentiary or no were of little deceased ground. far-fetched value. should be affirmed. that he did not re- leaving hospital going MORRISON, Judge (dissenting). or seeing house on Sherman Street Minnie’s whole, including The record as a an ante He stated that he did nоt re- the truck. *4 argument, presence cedent until after he was locked anything murder, possession scene issue of self was no defense or up. There gun by appellant immediately after shots showing anyone There is no accident. heard, subsequent flight by appel killed, who were the two women majority opinion, not mentioned in the were in children small the facts in this case are of a shows were fired. the fatal shots when least, charаcter. At positive jury have reached a different Would the such a are of character as to circumstances that no one if the court result close proximity pull trigger and that saw fact as to render a to the main killing? evidence of the was no direct there unnecessary. See knew what the was and State, Allen v. 36 Tex.Cr.R. 37 S.W. so told the court. not have to be did 429. stupid. not be considered should must instructed the it to the reversal of this conviс- I dissent beyond a reasonable doubt that believe tion. and killed Minnie Gamboa. shot
pellant in this case there is no the evidence
From probability that someone other killed Minnie Gamboa.
than juxtapo- are in such close
Where evidence, no to amount
sition re- been
charge on direct has v. See Eason 315 S.W.2d
quired. CLANTON, Appellant, Henry Wade Where facts are in such (Tex.Cr.App.1968). to each other as to amount to relation no direct State, required. Riggins v. No. S.W.2d suggestion Appeals is no reasonable of Texas. Criminal Court of else could have committed 15, 1975. Gamboa at a distance of Minnie except appellant, her head inches majority reverse this convic- why does
tion? provided this Court Legislature has not reverse a conviction
should charge unless the error in a court’s
errors