No. 05-03-01803-CR
Opinion issued November 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-50935-WV. Affirmed.
Before Justices WRIGHT, RICHTER, and MAZZANT.
Opinion By Justice MAZZANT.
A jury convicted appellant of murder and assessed punishment at twenty-two years' confinement and a $5000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction and the jury's rejection of his self-defense claim. We affirm the trial court's judgment.
Background
It is undisputed that appellant fired a Browning nine-millimeter pistol at Erwin Smith, striking Smith in the lower chest and stomach. Smith later died at a hospital. Testimony at trial established that Smith, appellant, appellant's common-law wife Sharonda Bennett, Jerry and Carol Reeves, and Joe Prince lived in the same apartment complex. On April 25, 2003, at approximately 8:00 p.m., Smith returned to the complex with Mr. Reeves after an evening of drinking and playing pool. Mrs. Reeves was outside her ground-floor apartment talking with Bennett and appellant while appellant used the Reeveses' telephone. Mr. Reeves, who had driven Smith's car because Smith was drunk, parked the vehicle. Mrs. Reeves asked the men to turn down the volume on the radio because the music was too loud. Mr. Reeves turned down the volume. An argument ensued between Smith and appellant about who told Smith to turn down the volume and why appellant did not buy his own telephone. According to some of the witnesses, Bennett also argued with Smith, saying that appellant did not have to fight with Smith because Bennett would "whip him" herself. At some point during the argument, appellant went upstairs to his apartment. He returned to the steps a short time later and shot Smith twice. Smith walked around the corner of the building and upstairs to his own apartment. Mr. Reeves followed and found Smith on the couch with gunshot wounds. Mrs. Reeves called 911. Smith died at a hospital two hours later. During the trial, three witnesses testified Smith did not have anything in his hands when appellant shot him, and Smith never threatened appellant or Bennett. Both Mr. and Mrs. Reeves testified Smith and appellant argued, then Bennett got in Smith's face with her fists balled up and stated she would fight Smith herself. The Reeveses testified Smith did not curse when he argued with appellant and Bennett; Smith told Bennett he would never hit a woman; and Smith never threatened Bennett or appellant either with words or gestures. The Reeveses testified that sometime during the argument, they saw appellant go up the stairs toward his apartment, then come back down with his hand behind his back. Smith said, "You went upstairs and got your water gun, huh?" Appellant pulled a gun from behind his back and shot Smith twice. Prince testified he was sitting at the top of the stairs when he saw appellant and Smith arguing. Prince also saw Bennett arguing with Smith. Appellant came up the steps and headed towards his apartment, walking past Prince. A short time later, appellant walked halfway down the steps. Prince testified he saw appellant holding a gun behind his back. Prince heard Smith say, "You ain't got no gun behind you." Appellant pulled the gun and shot Smith. Smith walked around the corner of the building and toward his apartment. Appellant and Bennett ran up the stairs to their apartment. Mrs. Reeves went into her apartment and called police while Mr. Reeves went to Smith's apartment and found Smith lying on a couch bleeding. Paramedics arrived and transported Smith to the hospital, where he later died. Appellant and Bennett both testified they saw Smith pull a "shiny object" from his back pocket right before appellant shot Smith. Bennett testified she neither "got in Smith's face" nor stated she would fight Smith. Bennett testified she got between Smith and appellant to keep them from fighting. She told appellant to go upstairs because the argument was not worth fighting about. Bennett testified Smith was "acting violent and threatening appellant" by telling appellant that Smith "had something for" appellant. When appellant walked upstairs, Smith was still verbally threatening appellant. Bennett stayed downstairs because her two children were still outside and she was waiting for them. When appellant came back down the stairs, Smith repeatedly said, "I got something for you," as he reached toward his pack pocket. Appellant then shot Smith twice. Bennett admitted she did not see any weapon or object fall to the ground after Smith was shot. Appellant testified he shot Smith because he feared for his life and his family. Appellant testified that he and Smith argued about who told Smith to turn down his music and why appellant needed to buy his own telephone. Appellant then went upstairs toward his apartment because Bennett asked him to go. Appellant stopped at his door and talked with Prince, who was sitting outside. Then appellant heard Smith cursing and threatening Bennett. Appellant testified he did not go into his apartment to get the gun because he already had the gun with him at the start of the argument with Smith. Appellant testified that he went back down the steps when he heard Smith threatening Bennett. He saw Smith pull a shiny object from his back pocket. Appellant testified he believed Smith had a gun, and appellant feared for his life and for his family. Appellant testified he could not retreat to his apartment because his family was on the stairs and was in danger. Appellant admitted he has never told police that Smith pulled a shiny object from his back pocket. Applicable Law
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. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). 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. Id. Self-defense is an issue of fact to be determined by the fact finder. See id. at 913. A guilty verdict is an implicit finding rejecting a defendant's self-defense theory. See id. at 914. When a defendant challenges the factual sufficiency of the evidence to support the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the findings. Zuliani v. State, 97 S.W.3d. 589, 593-94 (Tex.Crim.App. 2003). A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). A person is justified in using deadly force against another if a reasonable person in the actor's situation would not have retreated, and when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. See id. § 9.32(a)(2), (3)(A). Discussion
Appellant argues the evidence is legally and factually insufficient to support the conviction and the jury's rejection of his self-defense claim because the evidence clearly shows he acted in self-defense in response to apparent danger. Appellant asserts the evidence shows he was justified in using deadly force to defend himself, and a reasonable person in appellant's position would not have retreated when being attacked under the circumstances. Appellant contends witness testimony established that he acted in self-defense in response to apparent danger. The State responds the evidence is legally and factually sufficient to support the jury's verdict and rejection of appellant's self-defense claim because appellant did not have a reasonable apprehension of danger when he shot Smith twice, causing Smith's death. Both Mr. and Mrs. Reeves and Prince testified they did not hear Smith threaten appellant, and they each testified they saw and heard Bennett arguing with Smith and stating she would "whip him" so appellant would not have to get involved. Bennett denied she argued with Smith at all, claiming she only stood between Smith and appellant to keep them from fighting. No one but Bennett and appellant saw Smith get an object from his pocket. Both Mr. and Mrs. Reeves were standing in the parking lot near Smith. They testified they clearly saw Smith's hands and Smith was not holding anything in his hands when appellant shot him. Prince, who was seated above Smith and appellant and could see clearly, testified Smith did not pull anything out of his pocket nor have anything in his hand when appellant shot Smith. Appellant claimed he had the gun in his pocket when the argument started, but the Reeveses and Prince saw appellant go to his apartment and return holding a gun behind his back. Both Bennett and appellant said Smith threatened them and pulled a shiny object from his back pocket right before appellant shot Smith. Appellant claimed he could not retreat because he feared Smith would harm his family, and he believed Smith had a weapon. Although there were conflicts in the evidence about whether Smith had anything in his hands at the time appellant shot him and whether appellant initially had the gun or went to his apartment to get the gun, the jury resolved those conflicts in the evidence, and was free to accept or reject any or all of the defensive evidence. See Saxton, 804 S.W.2d at 913. Viewed under the proper standards, we conclude the evidence is sufficient to support the jury's rejection of appellant's self-defense claims. See id. at 914. After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt. See Zuliani, 97 S.W.3d at 594; see also Reaves v. State, 970 S.W.2d 111, 118 (Tex.App.-Dallas 1998, no pet.). Thus, the evidence is legally and factually sufficient to support the conviction. We overrule appellant's points of error. We affirm the trial court's judgment.