No. 05-04-01541-CR
Opinion Filed June 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-87323-03. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice MOSELEY.
A jury convicted Jonathan Odell Bird of assault-family violence. The trial court assessed punishment at one year's confinement in the county jail and a $4000 fine. The judge also made an affirmative family violence finding. In two points of error, appellant contends the evidence is legally and factually insufficient to support the jury's rejection of his self-defense claim. We affirm the trial court's judgment.
Background
Amanda Harris, the complainant, testified she and appellant had known each other for six years and had lived together for two months. On August 13, 2003, Harris and appellant had an argument about another woman and the fact that Harris had told appellant to take his things and leave the night before. Appellant had left the apartment the night before, but returned the next morning around 8:00 a.m. When appellant entered the apartment, he immediately began arguing and "hollering" at Harris, who was sitting on the floor in front of a couch. Harris testified that appellant crouched down near her and "got in [her] face," with appellant's nose almost touching Harris's nose. Harris placed the palm of her hand on appellant's face and pushed him away. Appellant lost his balance and fell backward. He immediately got up and began choking Harris. Harris kicked appellant in the groin, and appellant let go of Harris's neck for a few seconds. Appellant choked Harris a second time and said, "Look at what you made me do, you stupid, fucking, crazy bitch. Look at what you made me do." Harris testified she thought her life was going to end that day. Harris testified she began to claw at appellant with her fingernails and kicked him again in the groin. Appellant head-butted Harris in the middle of her forehead. He then got off Harris and stood by the couch. Harris testified that appellant kept screaming at her that everything was all her fault and that she had made him assault her. When Harris stood up, she smacked appellant on the arm with her hands and told appellant that she was going to call the police. Harris testified appellant pushed her against the wall and started choking her a third time. Harris pleaded with appellant to stop. When appellant let her go, Harris called the police. Appellant left the apartment. Harris went to the hospital that night after an officer told her she should get checked. Photographs showing bruises on Harris's neck that were taken at the hospital were shown to the jury. Plano police officer Don Hutson testified that when he arrived at Harris's apartment, she appeared to be dazed and confused. Harris stated she had an argument with her boyfriend about her breaking up with him. She said the boyfriend choked her and head-butted her and that she had tried to fight back by kicking and scratching him. Hutson saw redness and abrasions on Harris's neck. Jennifer Miears testified on appellant's behalf that she and appellant were expecting a baby together and were now married. Miears testified she was waiting outside Harris's apartment for appellant, but she did not know appellant was arguing with Harris. When appellant came to the car at about 8:30 a.m., Miears saw scratches on his neck and a lump on his head. Appellant did not testify at trial. 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. See 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; it 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 to determine whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the defense does not meet the beyond a reasonable doubt standard. See Zuniga v. State, 144 S.W.3d. 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Amanda Harris, a member of appellant's family or household. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004-05). 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. § 9.32(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 appellant was justified in using force against Harris. Appellant asserts the evidence shows Harris assaulted appellant first by kicking and hitting him, and appellant had to use force against Harris to protect himself. Harris testified that appellant choked her three separate times during an argument. Harris testified she believed she was going to die, and she kicked appellant in the groin and scratched him in an attempt to get appellant to stop. Harris sustained bruises to her neck from the assault. Miears testified that she saw injuries on appellant, but she did not see the argument between appellant and Harris. During closing argument, appellant's counsel argued that because Harris attacked appellant first by pushing his face away, appellant needed to use force to keep Harris from kicking and scratching him. The jury 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 legally and factually sufficient to support the finding of guilt and the rejection of appellant's self-defense claim. See Zuniga, 144 S.W.3d at 484-85; Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. We overrule appellant's points of error. We affirm the trial court's judgment.