Hernandez v. State , 1963 Tex. Crim. App. LEXIS 825 ( 1963 )

WOODLEY, Presiding Judge.

Appellant was tried upon an indictment alleging that he made an assault upon Hig-inio Gutierrez, Jr., with the intent to murder him. The jury found him guilty as charged and assessed the minimum punishment of one year in the penitentiary.

The evidence, including the testimony of Gutierrez and the testimony and the confession of the appellant, shows that the appellant stabbed Gutierrez with the instrument introduced in evidence.

The instrument is described as a Japanese letter opener. The blade is a bit more than }4 inch wide at the handle; is 2⅞ inches long and has a sharp point. The sheath is 3¾ inches in length and when the blade is inserted in the sheath the instrument is 614 inches long.

According to the state’s evidence, the appellant who was involved in an argument or difficulty with some other boys, pushed or bumped into Gutierrez as he was reaching into the back of an automobile to get a package of cigarettes. According to appellant’s testimony he did not push or bump into Gutierrez.

Gutierrez testified that it was a surprise to him that someone was pushing- him and that he pushed him away and told him to “cut it out”; that the appellant attacked him and stabbed him in the left side of the abdomen; that after he was stabbed all he did was “reach out and grab his right wrist with my left hand, and got him by his collar with the right hand, and I pushed him back against another car, I’d say six to eight yards, and I hit his hand on the fender of the car ’til he dropped the weapon, and I saw it was a knife, or rather one of those Japanese letter openers.”

Appellant’s statement to the sheriff, introduced without objection, and which appellant testified was correct except for the part about his hitting or pushing Gutierrez, contains the following confession:

“My name is Julian Hernandez, Jr., and I am seventeen years old. I was born in San Ignacio, Texas, and I consider San Ignacio my home. On the 17th of August of 1962, I arrived at Villarreal’s Place, which is a half mile north of the town of Zapata, Texas. In this place there was a dance going on. We were near where the musicians play and started to play, Refugio Jasso, Jorge and Juan Gonzalez. They pushed me, and I hit that boy, I believe him to be Higinio, and there is where the fight commenced. He threw me down. I got up, and that is when I stabbed him. They took the knife away, but I don’t know who. Immediately, I was arrested by a Deputy Sheriff and brought to the Courthouse in Zapata, Texas.”

Dr. Cigarroa, physician and surgeon, who treated Gutierrez at Mercy Hospital in Laredo, described his wound as “a penetrating wound of his abdominal cavity * * * in his left lower quarter of the abdomen * *

The doctor testified that Gutierrez was administered a general anesthetic and a surgical incision was made into the abdominal wall which was necessary in order to determine the extent of the injury and to attempt to repair it. He testified:

“ * * * the instrument or instruments that were used to cause his injury went through the skin, went through the muscle, went through the fat, went through the interlining of the abdominal wall, and went inside the abdominal cavity, into what we commonly call the belly, and such an instrument or instruments could cause injury to one of the pieces of intestine or to a major vessel or it could cause injury to the fat that covers the in- • testines, that we call the omentum, that is a layer of fatty apron that covers the intestines, and that can also be injured. He also had to be operated upon because with such a penetration, the wound would have to be thoroughly cleansed, irrigated, and so that risk of peritonitis and infection can be minimized, in order to do everything possible to save his life."

He also testified:

“Q. Will you tell the Court and the Jury, Doctor, what his condition was when you operated on him, when you made the incision, in other words ?

“A. He had considerable amount of blood inside of his abdominal cavity, and this was due to the fact that he had sustained a laceration or a cut by this instrument or instruments in what we call the omentum, that is, the fatty apron that covers the intestines, and he also had a laceration of the lining of the intestinal cavity, the abdominal cavity, the peritoneum, from which he was bleeding, in addition to bleeding from the muscle, bleeding inside the abdominal cavity. * * *»

On cross-examination he stated: “It’s far more dangerous to be struck in the belly with a knife than to administer a general anesthetic with the equipment we have nowadays.

“Q. But even with the general anesthetic there is danger of death?

“A. Even with the general anesthetic.”

Shown the letter opener, Dr. Cigarroa testified that in his opinion it was such an instrument as may have caused the wound, and that a penetrating wound with such type of weapon can be • calculated to produce death.

The evidence shows that Gutierrez had been recently discharged from the Army; was 26 years old and weighed some 160 pounds and had lived all his life in Zapata; that appellant was 17 years of age, weighed about 134 pounds, and was a life long resident of- San Ignacio, in Zapata County; that "the appellant and Gutierrez were not acquainted and had not previously met, nor had there been any ill feeling between them prior to the day in question.

The appellant testified that he had no intent to kill Gutierrez and that he acted in self-defense. He filed application for suspended sentence and offered evidence of his good reputation as a peaceful and law abiding person.

The jury rejected the appellant’s claim of self-defense and his application for suspended sentence and found against him on the issue of intent to kill.

The principal ground upon which claim for reversal is presented is the contention that the evidence is insufficient to sustain the jury’s finding that appellant made the assault upon Gutierrez with the intent to kill him.

The prosecution was for the offense defined in Art. 1160 Vernon’s Ann.P.C. which provides a punishment of not less than one nor more than three years for the offense of assault without malice, with intent to murder.

Malice not being alleged, and not being an essential element of the offense charged, the fact that the appellant may have acted under the influence of sudden passion aroused by an adequate cause would not be a defense. It was necessary, however, that the state prove that the appellant made the assault with the specific intent to murder him. Rodriguez v. State, 146 Tex.Cr.R. 206, 172 S.W.2d 502.

The rule appears to be that when the evidence, though meager, is such that from it the jury could logically draw the conclusion that the accused committed an assault with the intent to murder, this Court would not be authorized to hold the evidence insufficient. Daugherty v. State, 153 Tex.Cr.R. 8, 216 S.W.2d 222.

Applying such rule this Court affirmed the conviction in Moseley v. State, 158 Tex.Cr.R. 623, 259 S.W.2d 225; Bradshaw v. State, 167 Tex.Cr.R. 469, 320 S.W.2d 833; and Sadler v. State, Tex.Cr.App., 364 S.W.2d 234. See also Caballero v. State, 172 Tex.Cr.R. 140, 354 S.W.2d 940, and cases cited.

We are unable to agree that the record herein is wholly barren of facts or circumstances from which the jury could reasonably conclude that the appellant intended to kill Gutierrez. There was evidence from which they could find that the letter opener, in the manner of its use, was a deadly weapon and that the stab wound inflicted was a serious injury.

There was also evidence that this was not the only wound which the appellant attempted to inflict upon Gutierrez. He testified that he attempted to stab Gutierrez several times. We also point out that Gutierrez testified that he forced the knife from the hand of the appellant. Had he not done so, there is nothing in the record to indicate that the appellant would not have continued his assault.

The remaining ground for reversal presented relates to the court’s charge, for failure to insert “and not in his own self-defense, as herein defined,” in the paragraphs of the charge applying the law to the facts from the standpoint of the state.

Later in his charge the court gave an unrestricted charge on self-defense. Ekern v. State, 150 Tex.Cr.R. 319, 200 S.W.2d 412; Huntsman v. State, 140 Tex.Cr.R. 62, 143 S.W.2d 587; and Griffin v. State, 150 Tex.Cr.R. 27, 198 S.W.2d 587, are authority for overruling appellant’s claim of error in the charge.

The judgment is affirmed.