Lerma v. State , 149 Tex. Crim. 623 ( 1946 )

The offense is murder. The punishment assessed is confinement in the State penitentiary for a period of two years.

The record shows that appellant was indicted in Nueces County for the offense of murder, but upon his application the venue of the case was changed to the Criminal District Court of Bexar County, Texas, where he was tried.

There are no bills of exception to any matter of procedure, nor any objections to the court's charge. Consequently we need only determine the sufficiency of the evidence to sustain the conviction.

The State's evidence, as disclosed by the record, shows that appellant and deceased, Benny Vela, both resided in Corpus Christi; that about 8:30 P. M. on the 5th day of February, 1945, they met on the sidewalk in the business section of the city when appellant, without any apparent excuse, shot the deceased, who was in his shirt sleeves, unarmed, and leading a child with his right hand.

It is appellant's theory, supported by the testimony of his wife, that about two hours prior to the killing, the deceased came to her home carrying a pistol, where he made threats to kill appellant; that when appellant came home, she informed him of the threats; that he went into their bed room and then left immediately, going to the city.

There is not any evidence that the deceased, at the time of the killing, did any act or spoke any word which indicated an immediate intention to carry such threats, if any he made, into execution.

It will be noted from the foregoing recitation of the evidence that it is ample to sustain the conviction.

The judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.