No. 05-02-00164-CR
Opinion issued August 15, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-50398-JI. AFFIRMED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice BRIDGES.
Henry Coney appeals his conviction for aggravated assault. Appellant waived a jury trial and pleaded not guilty. After finding appellant guilty, the trial court sentenced him to seven years' confinement. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We will affirm.
Background
At trial, it was uncontested that on June 20, 2000 at approximately 4:20 p.m., appellant fired a .380-caliber automatic firearm at Vernon Chalmers, striking Chalmers in the back of the neck and left leg, and appellant struck Chalmers on the head with the gun several times. Chalmers sustained broken bones in his left leg and several head wounds that required closure with surgical staples. Appellant claimed he fired the gun because Chalmers attacked him with a knife. Chalmers testified that although he lived across the street from appellant, he had no contact with appellant due to an incident in 1999 when appellant notified police that Chalmers had shot appellant's dog with a rifle. On June 20, 2000, Chalmers and Johnny Foley, who lived down the street from Chalmers, left Foley's house at 4:00 p.m. to go to a convenience store located in a strip shopping center a few blocks away. As they drove down the street, Chalmers saw appellant sitting on the back of his car at appellant's house. When they arrived at the shopping center, Foley parked his truck in front of the store. Chalmers testified that when he got out of Foley's truck, Chalmers became aware that appellant was also there. As Chalmers walked toward the store, appellant walked behind Chalmers and tried to hit him. Appellant said he was going to kill Chalmers, pulled out a gun, and shot Chalmers in the leg. Chalmers hopped around the truck, and appellant pursued him. When Chalmers tried to run to the front door of the store, appellant grabbed Chalmers around the neck, hit him on the head with the gun several times, then shot Chalmers in the back of the neck. Chalmers stumbled through the front door of the store. Chalmers testified neither he nor Foley had a knife or any type weapon, and he did not chase appellant with a knife at any time. Foley testified that before he and Chalmers reached the store, he noticed appellant was driving behind him. Foley parked his truck, got out, and went inside the store. A few moments later, Foley heard a gunshot. Foley looked toward the front door and saw appellant with a gun. Appellant fired the gun at Foley, sending a bullet through the door glass and a display of carbonated beverages in the center of the store. When Foley saw Chalmers on the ground in front of the store, Foley pulled out a pocket knife, ran outside, and swung the knife at appellant. Appellant ran toward his car. Foley further testified he was the only person with a knife, he never saw Chalmers with a knife, and neither he nor Chalmers chased appellant with a knife before the shooting. Veronica Berell testified she left her children in her van while she went into the store. After shopping for five minutes, Berell heard yelling outside and then a gunshot. Foley came into the store and yelled for the owner to call the police because "someone was outside fixing to kill someone about a dog." Berell testified she saw Chalmers on the ground near the front door, and a man whose face she could not see stood behind Chalmers. The man had his hand behind Chalmers's neck and was hitting Chalmers on the head with a gun. Berell testified she felt a "pinch" in her leg when glass came through the front door at the same moment she heard another gunshot. Foley ran outside and hit the man with what Berell thought were keys because she heard keys rattling. The man ran away from the area. Berell further testified she never saw anyone with a knife. Clyde Carter, Berell's seventeen-year-old son, testified he was sitting in the van with the younger children while his mother was in the store. After a few minutes, Carter heard a gunshot. When he looked out the window, he saw Chalmers hopping around the truck to get away from appellant. Carter ducked down moments before he heard more gunshots. When he looked out the window again, he saw Chalmers on the ground in front of the store's door and saw appellant with a gun. Then Foley come out of the store and chased appellant. Carter testified he heard three or four gunshots, and he never saw Chalmers or Foley with a knife or chasing appellant before the gunshots. Appellant testified both Chalmers and Foley had harassed him in the past by name calling, cursing, and fighting with him. Appellant said he purchased the gun from a man on the street, and he carried it with him because both Chalmers and Foley had "jumped" him on a previous occasion. Appellant testified that on June 20, 2000, he drove to the store to buy cigarettes. When he saw Foley's truck park in front of the store, he waited a few minutes in his car because he did not want any trouble. As appellant approached the store, Chalmers got out of Foley's truck and cursed him. According to appellant, he tried to go to a pay telephone to call police, but Chalmers hit him and they began fighting. Chalmers pulled out a knife and advanced toward him. Foley then got out of the truck and also pulled out a knife. Appellant pulled out his gun and fired three shots in a row. Foley ran inside the store, and Chalmers ran around the back of the truck and toward the driver's side. Appellant testified he believed Chalmers was going to get a rifle, so he grabbed Chalmers and hit him on the head with the gun. Appellant backed away from Chalmers and hit his hand on a no parking sign which caused appellant to drop his gun. Then a heavyset, bald man picked up the gun and walked away. Appellant testified he never had Chalmers on the ground in the front of the store because Chalmers moved around to the back of the truck when appellant pulled out the gun. Appellant also testified that he fired two shots at Chalmers and one at Foley, who was standing inside the store, but he did not know Chalmers had been hit by one of the bullets because Chalmers did not act like he had been shot. Lamont Johnson testified he came out of a store four doors down the street and saw two men trying to "get" appellant with a knife. When Johnson saw appellant stumble, he assumed appellant had been stabbed. Johnson identified Foley as the man he saw stab appellant with a knife. Johnson heard three or four gunshots when appellant stumbled backward. Richard Eaton testified he came out of a barbershop located two doors down the street and saw two men fighting in front of the convenience store. Eaton testified he did not see a gun, but he heard two or three gunshots. Eaton did not see anyone holding a knife, but he saw a knife on the ground near a man who had gunshot wounds. Eaton never saw anyone pick up a gun from the ground. Applicable Law
A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. See id. § 9.31. In reviewing a challenge to the legal sufficiency of the evidence to support the jury's rejection of a defense, we view all of the evidence in the light most favorable to the verdict and determine whether any rational fact finder would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the findings and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The State is not required to affirmatively produce evidence to refute a defendant's self-defense claim, but must prove its case beyond a reasonable doubt. See Saxton, 804 S.W.2d 910 at 914. The issue of self-defense is an issue of fact to be determined by the fact finder, and the fact finder is free to accept or reject the defensive evidence. See id. at 913. A verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. See id. at 914. Discussion
Appellant argues the evidence is legally and factually insufficient to support a finding against his self-defense claim. Appellant argues the evidence shows both Chalmers and Foley came toward him with knives, appellant fired a gun at them in self-defense, and the State did not affirmatively prove appellant did not act in self-defense. The State responds the evidence is legally and factually sufficient to support appellant's conviction, and that by finding appellant guilty, the trial court implicitly found against appellant's self-defense claim. It was uncontested that appellant shot Chalmers and hit Chalmers on the head with a gun. The only question was whether appellant was justified in doing so. Appellant testified both Chalmers and Foley attacked him with knives. Berell and Carter testified they never saw anyone with a knife or anyone chasing appellant with a knife. Foley testified only he had a knife; Johnson testified he saw only Foley with a knife; and Eaton testified he did not see anyone holding a knife, but did see a knife on the ground after appellant left the scene. Appellant also testified he shot Chalmers and hit him with the gun while they were near the back of the truck and not at the front of the store. However, all of the witnesses to the shooting testified it occurred on the sidewalk in front of the store, and three shell casings from a .380-caliber firearm were found near the front of the store. Appellant testified he grabbed Chalmers and hit him on the head to prevent Chalmers from getting a rifle from Foley's truck. Carter testified Chalmers was trying to get away from appellant after Chalmers was shot in the leg, and appellant put Chalmers in a "choke hold" and hit Chalmers on the head while they were standing in front of the store. Berell also testified that when she saw appellant hold Chalmers around the neck and hit Chalmers in the head with the gun, appellant and Chalmers were standing on the sidewalk in front of the store. At trial, there were conflicts in the evidence regarding whether either or both Chalmers and Foley had a knife and confronted appellant first. Reconciliation of the conflicts was within the exclusive province of the fact finder. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Reviewing all of the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support the conviction. See Saxton, 804 S.W.2d at 914; Zuliani, 97 S.W.3d at 594; see also Reaves v. State, 970 S.W.2d 111, 118 (Tex.App.-Dallas 1998, no pet.). Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.