Macal v. State , 160 Tex. Crim. 610 ( 1954 )

WOODLEY, Judge.

Appellant was indicted in Starr County, Texas, for the murder of Rumaldo Garza. Venue was changed to Hidalgo County and upon trial he was found guilty and assessed a term of 28 years in the penitentiary.

It was the contention of the state that the fatal shot struck the deceased in the back; whereas appellant, claiming self-defense, testified that he did not shoot Garza in the back, but that Garza was “over me” — was coming at or toward appellant — was following appellant with a knife in his hand when appellant shot the deceased and that he did not know where the deceased was hit.

By his Formal Bill of Exception No. 1, appellant complains that the witness J. D. Chastain, Chief Chemist and Toxicologist for the Texas Department of Public Safety, was permitted to testify that the bullet entered from the back and that the point of exit was in the front of the body of the deceased, basing his testimony upon an examination of a shirt purported to be that worn by the deceased Garza at the time of the killing.

It is shown that Gilberto Garza took the clothing off the body of his brother, the deceased. Gilberto testified that he could identify the shirt if he saw it, but it is not shown that he was given the opportunity to do so.

Mr. Chastain testified that he supervised the examination of a shirt which came to the laboratory following the receipt of a letter from Hon. Homer Dean, then district attorney of the 79th Judicial District, advising that he was sending it. The shirt was referred to in questions addressed to Mr. Chastain as the shirt “allegedly worn by Rumaldo Garza who was shot in Star County in 1952.”

Mr. Dean did not testify and we find no evidence which may be construed as identifying the shirt examined in the laboratory as that worn by the deceased.

The testimony of Mr. Chastain based upon his examination of the shirt was upon a material matter, and his answer supported the state’s theory and contradicted in a measure the testimony of appellant. If the shirt was that worn by the deceased at the time he was shot and killed, it was the duty of the state to establish such fact.

The toxicologist should not have been permitted to express an opinion as to the point of entrance and exit of the bullet in the body of the deceased based upon his examination of such an unidentified shirt.

The admission of the testimony mentioned requires that the conviction be set aside.

The judgment is reversed and the cause remanded.