Opinion
No. 10-02-058-CR.
Opinion delivered and Filed on March 19, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the Criminal District Court No. 1, Dallas County, Texas, Trial Court # F00-01137-H.
Before Chief Justice DAVIS, Justice VANCE, and Senior Justice HILL.
OPINION
Jason Sean Damon appeals his conviction by a jury of the offense of aggravated assault. The jury assessed his punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division. He urges in two issues that the evidence is not legally sufficient to sustain his conviction and that the trial court erred in sustaining the State's objection to the defense argument about punishment alternatives. We affirm. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim. App. 1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Where the issue of self-defense is raised, this court must determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against the appellant on the defensive issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Emma DePriest testified that on the morning in question she was working as a prostitute in the Harry Hines area of Dallas when Damon approached her as she was talking with her girlfriends. She said she asked him if he wanted a date and he said he did. She indicated that Damon told her he had one hundred dollars. She stated that he followed her car in his car until she found a secluded parking lot. She described his clothing as a security uniform. She explained that when she went to the back of his car and asked him for the money, he indicated that he did not have any. She said that she told him he knew where he could find her when he found the money, and then walked away. She said that was the last thing she remembered before she was stabbed in the back of the neck. She stated that altogether she believes that she was stabbed five or six times. DePriest testified that at one point the knife was in her neck and she and Damon were struggling over it. She said she cut her hand very badly. She stated that the next thing she remembered was running to get away. She indicated that she ran out to the street seeking help. DePriest denied that Damon ever told her that he just wanted to talk to her or that she was too pretty to be doing that kind of work. She denied being mad because Damon had no money, indicating that such a circumstance was common. She acknowledged numerous convictions, including convictions for possession of a controlled substance, possession of stolen property, unauthorized use of a motor vehicle, prostitution, and public lewdness. Damon testified that he was employed as a security officer and was a military police officer in the Army Reserve. He indicated that he carried a knife with him to assist him in opening bags of money. He said the incident in question happened one morning as he was on his way to work. He stated that after he told DePriest that he had no money and he had put his wallet back in his pocket, he saw her with her hand up with a knife or pointed object, up near her shoulder. He indicated that she brought the object down like it was in her hair "or something." Damon testified that as DePriest was bringing the object down, she moved forward with her body, knocking him down. He said when that happened, he reached for his knife, trying to get away. He indicated she was on top of him. He stated that he thrust the knife in her general direction. He said that at that time he did not know if the knife contacted her. He related that he got away and stumbled to his car. Damon testified that after getting away he went home. He said that on the way home he realized that he had suffered a severe cut on his thumb. He indicated that he told his wife that "it was a prostitute" as paramedics were tending to his thumb injury. Damon acknowledged that he told the investigating officer that he did not know how he received the injury. He insisted that he was not attempting to hide or conceal anything from the police, having consented to the police searching his home to retrieve the security uniform he was wearing at the time of the attack. Damon testified that he told the investigating detective that his intention had been to talk to DePriest about why she was in that line of business, but acknowledged that his actual intention was to have sex with her. Damon insisted that at the time he used his knife he felt he was being attacked. He indicated that he did not use more than reasonable force because DePriest had a knife and was on top of him. He stated that he did not see how he could have cut himself with his own knife. Damon testified that he could not recall whether he told a police officer at his home that a prostitute had stabbed him. He acknowledged that all he could tell the police officer about what had happened was that he remembered driving home and being cut. He said he told detectives he had been attacked. He acknowledged, however, that he told Detective Dressler that he did not know who stabbed him or how his finger got cut. He indicated that he was unsure as to whether he or DePriest had cut his thumb. Vernell Howard testified that early on the morning in question he was sitting at his place of employment facing a parking lot when he saw two cars come together into the lot. He indicated that in three to five minutes he heard a lady screaming. He said he heard only about two outbursts of screaming when one of the cars left the lot. He stated that he started walking towards a lady whom he saw coming from his left. He related that a man in a truck asked him to stop traffic to keep it from hitting her while the man called for help. Howard said the woman was running and hollering, asking for help. He said she was bleeding very badly. Brett Chance, a firefighter paramedic for the Lake Cities Fire Department, testified that when he responded to a call relating to the injury to Damon's thumb, Damon told him he was stabbed by an individual off of Harry Hines in Dallas. He related that Damon told him he had pulled up to the side on Harry Hines to ask her why she did what she did for a living. Officer Joel Herrera testified that he responded to a stabbing call to Damon's residence on the morning in question. He indicated that he thought it odd that Damon kept staring at him while paramedics were treating him. He said Damon looked at his wife and told him that he was not going to do anything with the prostitute, just talk to her. He said that later, at the hospital, Damon told him he was talking to the prostitute, there was a struggle, he was stabbed, and then he drove home. Herrera indicated that when he asked Damon about abrasions on his knees, he said they were from "when we fell." Herrera said that when he asked Damon to repeat what he had said, he said he could not remember. Herrera recovered Damon's knife from the residence. Mark Davil, a fire rescue paramedic for the Dallas Fire Department, testified that upon responding to a call he found DePriest lying in the middle of the street in a pool of about two or three pints of blood. He indicated that when the left side of her neck was exposed, blood spurted out. He stated that an effort to take or palpate a blood pressure was unsuccessful. He said that her eyes dilated, which to him meant that she was not getting any blood to the brain. He related that at one point there was no electrical activity of her heart and she was not breathing. Wesley Popieluch testified that he is the branch manager of the security company by whom Damon was employed. He said that when he called Damon to find out why he had not come to work, Damon was very vague about what happened. He indicated that when he talked to him about a week later, Damon was still vague, and said something about how two guys had jumped a lady and he had tried to defend her. He related that Damon said several times that he was not a coward. Detective Dan Cannon testified concerning his unsuccessful effort to find a weapon at the scene of the assault. Keith Dressler testified that on the occasion in question he was a detective with the Dallas Police Department. He said that he went to the hospital where Damon was being treated for his thumb injury and talked to him outside his wife's presence. He indicated that Damon told him he had seen a blonde in a red convertible and did not think she should be out and about. He related that Damon said he wanted to talk to her. He said that Damon indicated that when the prostitute came up and asked him for the money, he told her he wanted to talk to her. Dressler stated that Damon told him that at that point he did not know what happened, but said he believed that his thumb could have been cut by a knife. Detective Dresser acknowledged that he had not preserved Damon's statements at the time in a notebook or report, but put them on the computer later in the day. Damon argues that the evidence is insufficient to support his conviction, urging that neither the absence of a knife at the scene or the State's plea for the jury to find DePriest more credible disproved self-defense. As Damon acknowledges, the State does not have the burden to affirmatively produce evidence to refute his theory of self-defense. Saxton, 804 S.W.2d at 913. Defensive evidence that is merely consistent with the physical evidence at the scene of the alleged offense will not render the State's evidence insufficient because the credibility of such evidence is solely within the jury's province, and the jury is free to accept or reject the defensive evidence. Id. at 914. A jury's verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Id. We hold that the evidence is legally sufficient to support Damon's conviction. We overrule issue one. Damon urges in issue two that the trial court erred in sustaining the State's objection to defense argument concerning the limits of the court's punishment options. Counsel for Damon argued to the jury at the punishment phase of the trial that "there is just no provision in Texas law in cases of aggravated assault for a defendant to come in and throw himself on the mercy of the court because in cases of deadly weapons our wise legislature has said only juries may consider these cases if a defendant applies for probation." The State objected on the basis that the Court could give him deferred adjudication. After a brief exchange between counsel, the trial court stated, "I'll allow the State to answer the argument." Damon's counsel resumed argument, stating, "Jason Damon could not come into this court and plead guilty with hopes of being found guilty and given probation by the Judge." At that point State's counsel objected, stating, "Again, that's a misstatement of the law. It's an entirely — it's entirely within your discretion." The trial court then sustained the objection. At that point, Damon's counsel replied, "Judge, you can't find him guilty and give him probation and that's clear in the law." The trial court then stated, "I'll overrule the objection. The State can answer the argument." Damon's counsel resumed argument again, saying, "Counsel is trying to break up my continuity because they know what I'm saying is true and the Court overruled his objection." Inasmuch as the trial court ultimately overruled the State's objection, the trial court did not reversibly err in initially sustaining the objection. Even if we were to assume that it was error for the trial court to initially sustain the State's objection, this did not affect Damon's substantial rights inasmuch as the trial court immediately thereafter overruled the objection. To the extent Damon is complaining of error in the form of the State's objection, nothing is preserved for review because Damon made no objection to the form of the objection at trial. TEX. R. APP. P. 33.1(a)(1). We overrule issue two. The judgment is affirmed. Affirmed