Opinion
No. 06-03-00146-CR
Submitted November 24, 2003.
Decided November 26, 2003. DO NOT PUBLISH.
On Appeal from the County Criminal Court 10 Dallas County, Texas, Trial Court No. MA0123934-L. Motion for Rehearing, Overruled.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Geoffrey Beiser appeals from a misdemeanor conviction for assault. He was found guilty by a jury, and the trial court assessed his punishment at 300 days' confinement in county jail, probated for eighteen months, and a $500.00 fine. Beiser raises one issue on appeal: the sufficiency of the evidence to support the jury's rejection of his self-defense theory. The evidence in this case comes from a single witness, Sharon Hackler. She was (and is) Beiser's fiancee. Her testimony in response to questions by the State was that they had an argument, but did not remember what it was about. She testified that, during the argument, she came up to him and grabbed him by his shirt and threw her rings at him and that, at one point, he knocked her to the ground, causing her pain, and that he had his hands around her neck. She testified that she then made a telephone call to her daughter to try to get him to leave and that, while she was on the telephone, he packed his belongings. Hackler testified that he asked who she was talking to, that she told him it was none of his business, and that he responded he might make it his business, that she told him to hurry up and get out or she would call the police. She then called the police. Beiser left before they arrived. On cross-examination, Hackler testified that Beiser would not have gotten physical with her had she not attacked him, that he did not use his hand to smash her head against the floor, and that they both fell to the floor together while his hands were around her neck. She testified that she felt that he had defended himself from her and that she was the one that was more angry and telling him to get out. On redirect, Hackler admitted that she had not attacked Beiser with her fists, or scratched him and that as they went down, she hit her head. On recross, Hackler agreed that she did attack Beiser and stated that she had not so informed the police, and that her head hurt that night but not the next day. Hackler also testified in response to questions by the State that their seven-year relationship (and four-year engagement) had never involved such actions either by her or by him and that it was entirely nonviolent save only for this one situation. Beiser took the position at trial that the evidence showed he was acting in defense of his person and that he did not act unreasonably in so doing. When reviewing legal sufficiency of the evidence to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In reviewing the legal sufficiency of evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense and also could have found beyond a reasonable doubt against the defendant on the self-defense issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim. App. 1991). The defendant has the burden of producing some evidence to support the claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once the defendant produces such evidence, the State has the burden of disproving the defense. Id. The burden of persuasion does not require the State to produce evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. When the jury finds the defendant guilty, it implicitly finds against the defensive theory. Id. The factual sufficiency standard for guilt requires the reviewing court to ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A factual sufficiency challenge to a verdict implicitly rejecting a defense requires us to review all of the evidence in a neutral light and ask whether the State's evidence, if taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 594-95; Bowen v. State, No. 02-02-00239-CR, 2003 WL 21806930, *7 (Tex. App. Fort Worth Aug. 7, 2003, no pet. h.). Beiser argues the evidence is insufficient to support rejection of his affirmative defense theory of self-defense. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003) provides that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to defend himself against the other's use or attempted use of unlawful force. As acknowledged by counsel, the prosecution and the defense elicited conflicting testimony — from the only witness — about whether Beiser's actions were in response to hers, and whether she believed his actions were reasonable in response to her actions. Reviewing the evidence in the light most favorable to the verdict, there is some evidence from which a fact-finder could find against Beiser on the self-defense issue. The remaining question is whether that same evidence is factually sufficient, that is, whether it is too weak to support the jury's finding against Beiser on the issue of self-defense and, although adequate if taken alone, whether the finding is against the great weight and preponderance of the evidence. The weakness of the evidence is that the victim testified she initiated the conflict, grabbed him first, broke his necklace, and threw her rings at him. She admitted being angry and screaming. In conclusory statements, she stated that Beiser would not have gotten physical if she had not, that she would "guess" she was attacking him by grabbing his shirt, and that she felt he was defending himself. On direct examination, she further testified he knocked her to the ground with his hands around her neck, causing her pain. Throughout her testimony, Hackler stated that her only physical action toward Beiser was to grab his shirt. There is no evidence that she ever struck him or that Beiser reasonably believed force immediately was necessary to protect himself against Hackler's use or attempted use of unlawful force. Viewing the evidence in a neutral light, we find that the State's evidence is not too weak to support the jury's rejection of Beiser's self-defense theory. Further, the jury's finding of guilt is not against the great weight and preponderance of the evidence. We affirm the judgment of the trial court.