Opinion
No. 36549.
February 19, 1964.
Appeal from the 34th Judicial District Court, El Paso County, William E. Ward, J.
L. Clayton Rivers, Jr., El Paso, for appellant.
Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and
Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for murder; the punishment, ninety-nine years.
The testimony of the state reveals that for a short time during the day the appellant had been in the bar where deceased was employed and he returned about 6:30 p. m., and began drinking beer. About 11 p. m., the deceased walked from behind the counter to a jukebox and placed some money in it. Appellant went to the jukebox, took the deceased by the arm, turned her around and, while they were talking as they faced each other, two gun shots were heard. Instantly, the deceased fell face down on the floor with two gun shot wounds in her breast, and she never spoke or moved again. No weapons were seen in her hands.
The witness Rosales testified that, immediately after the shooting, the appellant placed an object — "All I was able to see was the handle, but it was a pistol" — in his pocket, and then appellant left the building. Proof was made that the appellant purchased a .22 caliber pistol on the same day on which it is alleged that he shot the deceased.
The appellant was apprehended about 2 a. m. following the shooting at 11 p. m. When the officers approached the appellant, he pointed a pistol at them, and upon his failure to drop the pistol when they told him to do so, they shot him. From the ground near the appellant the officers picket up a .22 caliber pistol which had been recently fired, and they also found several .22 cartridges in his pants pocket. The autopsy surgeon removed from the body of the deceased two .22 caliber bullets, which the evidence shows caused her death.
The appellant did not testify, but called three witnesses. The first witness was a photographer, whose testimony and pictures of the bar reflected the location of the furnishings and what could be seen in the interior from different views. The other two witnesses saw the appellant in the bar, heard two gunshots, saw the deceased fall, but they never saw the appellant with a pistol.
The record contains no formal bills of exception, no requested charges, and no objections to the court's charge. The informal bills have been carefully examined and they do not show error.
The evidence is sufficient to support the verdict of the jury, and, no error appearing, the judgment is affirmed.
Opinion approved by the Court.