Gregorio Cortez Appeals: 1902-04

Appellant: Gregorio Cortez
Crime Charged: Murder
Chief Defense Lawyers: R.B. Abernathy, with Samuel Belden Jr. (1902) and J.R. Wooten (1904)
Chief Prosecutors: J.V. Vandenburg, Robert A. John (1902); Howard Martin, S.L. Green, S.H. Hopkins (1904)
Judges: W.L. Davidson, John N. Henderson, M.M. Brooks
Place: Austin, Texas
Dates of Decisions: January 15, 1902; June 24, 1902; June 15, 1904
Verdicts: In favor of appellant (both 1902 cases); guilty verdict affirmed (1904)
Sentence: Cases dismissed (1902); life imprisonment (1904)

SIGNIFICANCE: Gregorio Cortez's trials stemmed from an act of self-defense that made him a well-known Mexican-American folk hero.

On June 12, 1901, Gregorio Cortez and his brother Romaldo heard a surrey roll into the farmyard they shared in Kenedy, Texas. Their visitors were Karnes County Sheriff W. T. Morris and deputy D. P. Choate, who were investigating a horse theft. The Cortez brothers were innocent of any crime, but the language barrier between the farmers and the lawmen resulted in tragedy. Gregorio Cortez's misunderstood answers to the sheriff's questions erupted into gunfire that left Morris dying, Romaldo wounded, and Gregorio leading pursuers on a 10-day chase that became one of the great legends of the border country.

Gregorio Cortez first fled north on foot toward Ottine, stopping at a ranch owned by friends, the Roblero family. Acting on a tip, a posse stormed the Roblero house. Sheriffs Robert Glover and Henry Schnabel were killed in the resulting gunfight. Cortez then rode south, eluding his pursuers in the rough scrub. The exhausted fugitive was finally captured near Laredo on June 22. Because of the furor over Morris's death in Karnes County, he was jailed in San Antonio.

Cortez was charged and tried separately for murdering the three sheriffs. His trials were rarities in an era when any Mexican American accused of killing a Texas law officer stood little chance of living long enough to appear in court. When he was tried in Gonzales for killing Schnabel, a deadlocked jury reduced the charge to second-degree murder before agreeing on a conviction. While he was in the Gonzales jail, a mob, tried unsuccessfully to lynch him. He was transported to Karnes City, where he was convicted and sentenced to death for murdering Morris. A third trial in Columbus ended with a life sentence for killing Glover.

Appeals Challenge Convictions

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.

Convictions Upheld in Glover Shooting

Cortez still remained in jail for killing Sheriff Glover at the Roblero ranch. When his attorneys returned yet again to the state court, his luck ran out. The court found that Glover's intention to arrest Cortez without pausing to seek a warrant was lawful and prudent because of the sheriff's knowledge of the Morris killing. Allowing deputy Choate to testify about the Morris incident in the Glover trial was accepted as unpredjudicial and pertinent to the posse's motive. A statement Cortez made in jail when he was told that the Robleros were blaming the killing on him was ruled admissible as a confession.

The court dismissed most of the remaining defense challenges to the trial court's decisions and upheld Cortez's life sentence on June 15, 1904. Ironically, the ruling implied that the appeal might have been successful had it been based on the fact that the Glover incident resulted from Sheriff Morris's unlawful arrest attempt. Because the defense had chosen to appeal the sentence on other grounds, however, the court was precluded from judging the matter in this way. Cortez began to serve his sentence at Huntsville penitentiary.

Clemency requests for Cortez continued and were even supported by his jailers. On July 14, 1913, Cortez accepted a conditional pardon from Governor Oscar B. Colquitt and was released. He never apologized for defending himself and his family. His courage and legendary flight were celebrated in a popular border song, "El Corrido de Gregorio Cortez," which was sung for decades on both sides of the Rio Grande. His story was also told in a 1983 film, The Ballad of Gregorio Cortez.

—Tom Smith

Suggestions for Further Reading

The Texas Criminal Reports, Cases Argued and Adjudged in the Court of Criminal Appeals of the State of Texas: Vol. 43, Reported by John P. White. Austin: Gammel-Statesman Publishing Co., 1903. Vol. 44, Reported by John P. White. Austin: Gammel-Statesman Publishing Co., 1904. Vol. 47, Reported by Rudolph Kleberg. Chicago: T. H. Flood and Co., 1908.