Garza v. State , 149 Tex. Crim. 359 ( 1946 )

The motion for rehearing herein complains of the holding of this court on the sufficiency of the evidence, and presents the contention that there is no evidence to warrant the jury's finding: First, that the person who shot deceased was the same person who was riding in the back seat of appellant's automobile prior to the time of the shooting; second, that the person doing the shooting was the same person who walked from appellant's car to the implement shed at the side of the hardware store; third, that he was the same person who entered the appellant's car after the shooting; together with other facts necessary to connect appellant with the commission of the offense.

The man who did the killing and the deceased were Mexicans, as is the appellant. The circumstances of the case, as revealed by the evidence, and the lack of motive on the part of the killer, are unusual. The facts proven are not completely satisfactory. Yet, careful reconsideration of the evidence leads us to the conclusion expressed in the original opinion. The hardware store, in which the killing took place, was separated from the cafe owned by J. M. Jones, the constable, by a shed in which implements were stored. Jones' testimony is to the effect that he had noticed appellant driving the car, with his brother in the front seat and a stranger in the rear seat. They had passed in front of the hardware store and were looking towards it. They then parked on the opposite side of the street, along the railroad right of way, in front of the store. The man in the back seat got out, walked across the street and into the implement shed at the side of the hardware store. Only a few minutes elapsed before he heard the shooting and, upon coming to the front of his cafe, a man coming out of the hardware store ran against him, went across the street, jumped in the car with appellant, who was at the wheel with the engine running and the door to the back seat open. This is the controverted point and we quote from Jones' testimony as follows: "Pedro Garza, Jr., the defendant sitting over there, and Nicholas Garza were in that car that man got into after he bumped me, and Pedro Garza, Jr., the defendant, was driving the car. After this man got into the car, they just took off, is all I can say; took off very fast. The defendant here was under the wheel, driving the car, and the man that was running and knocked me down got in the back seat. I noticed that the door to the back seat was standing open before he got to the car, and I noticed that the motor of the car was running at the time he got in." This man was not recognized by the witness.

The above evidence, considered with that of all the witnesses to the shooting who said that the killer came in the side door and left by the front door, would justify the jury in concluding that the party whom Jones saw get out of appellant's car and walk to the shed immediately before the shooting was the same man who entered the store. The fact that he emerged from the front instantly after the shooting, under all the circumstances described, and entered the car, justifies the further conclusion that the man who re-entered the car was the same individual. The evidence to the effect that appellant was driving the car before the shooting, remained at the wheel with the engine running and the door open, indicates that he understood and expected the killer's return, and is evidence of his aid in escaping from the scene.

The original opinion properly discusses the law, with appropriate authorities. As additional authority for the conclusion reached, we refer to Bass v. State, 127 S.W. 1020; Coffman v. State, 103 S.W. 1128; and Grimsinger v. State,69 S.W. 583.

Appellant's motion for rehearing is overruled.