Opinion
NO. 12-11-00206-CR
04-30-2012
ARLETTRA TYSHA BARNETT, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 145TH JUDICIAL DISTRICT COURT OF NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Arlettra Tysha Barnett of aggravated assault with a deadly weapon. The trial court assessed Appellant's punishment at imprisonment for five years. The trial court suspended the sentence of imprisonment and placed Appellant on community supervision for five years. In two issues, Appellant contends that the evidence is insufficient to support her conviction and that the State failed to prove venue. We affirm.
BACKGROUND
Appellant and the victim, M.C. Anthony Williams (M.C.), had dated for five or six months. On July 11, 2010, in an apparent effort to talk to Appellant, M.C. followed Appellant's car, and when Appellant parked her car, M.C. parked his vehicle behind Appellant's.
According to M.C., he went to the driver's side door of Appellant's car. Appellant opened her car door. He put his hands on the top of the car door and leaned down to say something to Appellant. Before a word was spoken, M.C. felt Appellant hit him in the chest. "Actually, it hurt quite a bit," he testified. He reacted by trying to hit her back, but his shoelaces were untied and he slipped. He fell with his knees on the concrete and his body partially on top of Appellant. A melee ensued, but M.C. did not believe he actually struck her. He felt a painful blow or scraping across his head. He backed away from Appellant's car, wiped his brow, and discovered that he was bleeding profusely from a head wound. Appellant jumped out of her car and stood between M.C. and his vehicle yelling "it was self-defense." He managed to get to his Toyota Forerunner and drive to the hospital.
At the hospital, M.C. was found to be bleeding badly from a six inch cut in his forehead, which had severed a small artery. He had a deep cut on his arm and a small cut on his finger. He also had a long shallow cut across his chest, apparently inflicted when he thought Appellant had hit him.
Appellant inflicted the injuries with a box cutter. There is no evidence that Appellant was injured.
The defense called Stephanie Reeves, who testified that M.C. came by her apartment looking for Appellant. She called Appellant to tell her that M.C. was looking for her. She testified that when M.C. heard Appellant (on speaker phone) say she was with another man, M.C. said, "I'm fixing to go kill that whore." When M.C. left her apartment, Reeves called Appellant to tell her "to get out 'cause he was on his way." Shortly thereafter, she saw Appellant's car and M.C.'s truck pull up in her driveway. Reeves claimed that "before [Appellant] could get the door open, [M.C.] jumped in on her and started beating her." The defense also called Shirley Handy, Stephanie Reeves's daughter, who watched the incident from the same vantage point. She did not notice that M.C. was bleeding when he left. Her testimony closely mirrored that of her mother.
Appellant testified that as she was trying to open her car door, "he had swung the door open, grabbed my cell phone, threw it against the brick wall, and started jumping on me." She told the jury that she was afraid for her life and that if she had not gotten him off her when she did, he could have probably strangled her.
SUFFICIENCY OF THE EVIDENCE
In her first issue, Appellant claims the evidence is insufficient to support her conviction, because the State failed to disprove self-defense beyond a reasonable doubt. Standard of Review
In reviewing the sufficiency of the evidence, the appellate court must determine whether, considering all the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 560 (1979); Brooks v. State, 323 S.W. 3d 893, 899 (Tex. Crim. App. 2010). Considering the evidence "in the light most favorable to the verdict" under this standard requires the reviewing court to defer to the jury's credibility and weight determinations, because the jury is the sole judge of the witnesses' credibility and the weight to be give their testimony. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 899. "A court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not appear affirmatively in the record-that the trier of fact resolved any such conflicts in favor of the prosecution. . . ." Jackson, 449 U.S. at 326, 99 S. Ct. at 2793. Applicable Law
Subject to certain exceptions not pertinent here, "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." TEX. PENAL CODE ANN. § 9.31(a) (West 2011). The actor's belief that the force was immediately necessary as described by subsection (a) is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:Id. If the issue of self-defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted. TEX. PENAL CODE ANN. § 2.03(d) (West 2011). Discussion
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
Appellant argues that her testimony and that of Stephanie Reeves and Shirley Handy show that M.C. attacked her in her car. According to Reeves and Handy, M.C. was enraged when he discovered Appellant was with another man, and he announced his intention to kill her. According to Reeves, she called Appellant to warn her of danger telling her "to get out 'cause he was on his way" looking for her. Appellant emphasizes that, of the four persons present, only M.C. testified that she struck the first blow.
According to M.C., she struck him first as he opened her car door. Apparently that was a blow with a box cutter that slashed M.C. across the chest. Although the police and nurses described M.C. as a bloody mess when he arrived at the hospital, Handy did not notice he was injured when he left the scene. Reeves and Handy were obviously friends of Appellant. None of the three-Reeves, Handy, or Appellant-called the police. Although Appellant and her friends described a violent assault on her by M.C., she apparently emerged uninjured, still threatening M.C. with the box cutter as he tried to get to his vehicle.
It was not unreasonable for the jury to discount the testimony of Appellant and her two friends. It is the province of the jury to assess the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts in the evidence. The evidence is sufficient to support the jury's implied finding that the State disproved Appellant's self-defense claim beyond a reasonable doubt. Appellant's first issue is overruled.
VENUE
In her second issue, Appellant contends the State did not prove venue beyond a reasonable doubt.
Unless proof of venue was disputed in the trial court, or unless the record affirmatively shows that venue was not in the county of trial, the court of appeals must presume that venue was proven. TEX. R. APP. P. 44.2(c); Wooten v. State, 331 S.W.3d 22, 23 (Tex. App.-Amarillo 2010, pet. ref'd). The State need only prove venue by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 13.17 (West 2005); Estrada v. State, 148 S.W.3d 506, 508 (Tex. App.-El Paso 2004, no pet.). A plea of not guilty does not raise the issue of venue for purposes of avoiding the presumption on appeal that venue was proven in the trial court. Cunningham v. State, 848 S.W.2d 898, 901 (Tex. App.-Corpus Christi 1993, pet. ref'd).
The record does not show that Appellant raised the issue of venue in the trial court, nor does it affirmatively show that venue was not proper in Nacogdoches County. M.C. testified that the attack occurred in Nacogdoches County. Venue was proven. Appellant's second issue is overruled.
DISPOSITION
The judgment is affirmed.
BILL BASS
Justice
Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.