Gregorio Cortez Appeals: 1902-04

Efforts to win Cortez's freedom attracted support on both sides of the border. Well-organized appeals by the law firm of Atkinson & Abernathy earned Cortez's first reprieve on January 15, 1902, when the Texas Court of Criminal Appeals overturned his conviction in the Schnabel case. The appellate court ruled that the trial court should have waited to hear testimony from a state witness who had been unavailable due to illness. The missing witness was a deputy who had accompanied Sheriff Glover as he approached Cortez on the eastern side of the Roblero house. The appellate court noted that Cortez could not possibly have killed Schnabel, who was shot at close range beside a barn on the opposite side of the house.

There were other irregularities. A state witness whose command of Spanish was so weak that he could not distinguish between the words for "house" and "barn" had taken an alleged confession. The court also ruled that the jury should have scrutinized more closely an alleged voluntary statement elicited by three armed sheriffs who attempted to get Cortez drunk in his cell.

The court declined to weigh part of the appeal that may have explained Schnabel's death. The defense learned that the posse had been drinking whiskey while riding to the Roblero ranch and that surviving deputies later discussed whether they had been drunkenly shooting at each other. There was conflicting testimony over who started the gunfight. The defense held that the posse had attacked without warning. The appeals court did not settle these issues. It did, however, fault the trial court for not instructing jurors that Cortez could be found innocent if he had lawfully fired in self-defense while resisting an illegal arrest. This was a possibility, for Sheriff Glover had not obtained a warrant. With so many errors in the Schnabel case, the state's prosecution of Cortez collapsed.

Six months later, the appellate court examined Cortez's conviction for killing Sheriff Morris. Prosecutors characterized Morris's warrantless haste to arrest Cortez as an act any man "who knows the character and habits of treacherous Mexicans" would have performed. They denied that any prejudice existed in Karnes City to have merited a change of trial venue. The appeals court disagreed, noting that no Karnes County lawyer would take Cortez's case and that dozens of influential citizens had contributed to an arrest fund that assumed his guilt.

The court acknowledged that the mare over which Morris had mistakenly attempted the arrest was Cortez's legal property, but added that this was beside the point. Morris had erred by not identifying himself as a law officer, compounding the mistake by simply announcing to Cortez that he was under arrest without informing him why. The court ruled that Morris had sufficient time to obtain a warrant, implying that no valid evidence had ever existed to justify such an authorization. Therefore, the attempted arrest was illegal.

Deputy Choate and Cortez's wife offered conflicting testimony over which man drew his gun first. The appeals court found this issue less relevant than the fact that the trial court did not instruct jurors that any case involving a deadly act of self-defense explicitly merited a manslaughter charge, not murder. For this and because of the prejudiced proceedings against him in Karnes County, Cortez's conviction was overturned on June 24, 1902.

Yet the decision did not end the Morris case. If Cortez's gunshots were a response to the sheriff wounding his brother and then shooting at him during an illegal arrest, Cortez had committed no offense under Texas law. This, the ruling said, was an issue to be decided in any subsequent manslaughter trial, not by an appellate court. State prosecutors immediately re-indicted Cortez, but the theory that he had acted in self-defense in the face of an unauthorized arrest endured. He was eventually acquitted in Corpus Christi on April 30, 1904.