Opinion
No. 05-05-00421-CR
Opinion Issued January 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F04-00589-WL. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Delmond Dewayne Brown appeals his conviction for aggravated assault. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2005). After the jury found appellant guilty and that he used or exhibited a deadly weapon during the commission of the offense, the trial judge assessed punishment, enhanced by a prior felony conviction, at ten years' confinement and a $1000 fine. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment. Sufficiency of the Evidence In his first issue, appellant claims the evidence is legally insufficient to support his conviction because a rational jury could not have found beyond a reasonable doubt that appellant used or exhibited a knife during commission of the offense. Under his second and third issues, appellant claims the evidence is factually insufficient to support his conviction because the State failed to prove appellant used or exhibited a knife during commission of the offense and the implied finding against the self-defense issue was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex, Crim. App. 2005), petitions for cert. filed, (Dec. 23, 2005 Jan. 3, 2006) (No. 05-8398 No. 05-856); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000) (reconciliation of conflicts in evidence is within exclusive province of jury and jury may choose to believe some testimony and disbelieve other testimony). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)), cert. denied, 125 S. Ct. 1697 (2005). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); see Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004) ("Although a reviewing court is authorized to disagree with the jury's determination, due deference must be given to the fact finder's determinations concerning the weight and credibility of the evidence and reversal of the fact finder's determination is appropriate only to prevent the occurrence of a manifest injustice."). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When a factfinder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. When an appellant challenges the factual sufficiency of the rejection of self-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 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 595 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). A person commits the offense of aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and he uses or exhibits a deadly weapon during commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(2) 22.02(a)(2) (Vernon). 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." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Although appellant claims the evidence is legally and factually insufficient to support his convictions, we cannot agree. At trial, Mohammadou Cham testified that, on the evening of August 27, 2003, his pregnant wife called, telling him she was having contractions. Cham left work and began to drive home, stopping to fill up his car at the gas station on the corner of Highway 183 and MacArthur Boulevard in Irving. While he was pumping gasoline into his car, he noticed the car on the other side of the pump had spinning rims. The driver of the car, later identified as appellant, asked Cham, "What the f____ you looking at?" Cham responded, "What the f____ you mean, what I'm looking at?" Appellant finished pumping gasoline into his car and approached Cham. He asked Cham, "What the f____ you mean?" and then hit Cham in the face. Cham felt blood running down his face, and he fell back into the door. Appellant grabbed Cham, hit him in the face a second time, grabbed him, and hit Cham's head on the top of his car. Appellant got Cham in a headlock, and Cham could not move. Appellant then took a big brown knife out of his pocket. Cham grabbed appellant's arm to prevent appellant from stabbing him. According to Cham, appellant tried to stab him but Cham's grip prevented him from doing so. Cham testified he was afraid. A girl was sitting in appellant's car. She saw the knife, opened the door, and started crying. She grabbed appellant and tried to pull him off Cham. She yelled at appellant to leave Cham alone, that "they" were calling the police. Appellant and the girl got in the car and drove off. Cham testified appellant broke his nose and hurt his mouth. Cham was unable to work for days. Cham later identified the knife that police found in appellant's wife's purse as the one appellant used in the assault. Milfred Minatrea, a minister for the Baptist General Convention of Texas, testified he was at the gas station on the night of August 27, 2003. He saw appellant confront Cham by one of the gas pumps. Appellant asked Cham what he was looking at. According to Minatrea, appellant walked over to his car, pulled out something that Minatrea assumed was a knife, and began making a "slashing motion at the person that he was assaulting." When asked if he could tell it was a knife, Minatrea responded, "I kind of assumed it by the blade and by the motion." Appellant swung the knife rapidly several times. Minatrea walked into the convenience store and asked the attendant to call 911. A woman got out of appellant's car and tried to get him to quit attacking the other man. Appellant and the woman got back in appellant's car and drove off, but Minatrea was able to get the license number. Tameka Brown testified she is appellant's wife and was with him on the day in question. According to her, they were stopped at a gas station when Cham got appellant's attention. Appellant walked over, and the two men "got into an altercation." According to Brown, it was a fistfight. She agreed that appellant pulled Cham into a headlock, but testified that appellant "restrained" him. She broke up the fight, and she and appellant left. Shortly thereafter, the Irving police stopped them. Brown admitted she had a knife in her purse but denied that appellant had used it during his fight with Cham. According to Brown, she saw a "letter opener or something" in Cham's hands during the fight. She also testified she did not see any blood on Cham but saw some on appellant. Irving police officer Rodolfo Chavez testified he responded to the 911 call. According to Chavez, Cham was pretty upset and emotional when the police arrived. Cham had "a lot of blood" on him, and Officer Chavez was concerned about the amount of blood. The paramedics showed up right after that and took Cham to the hospital. Irving police officer Matthew Drumm testified he responded to the 911 call and assisted Officer Surprenant who had pulled appellant and Brown over. Officer Drumm dealt with Brown. She gave him permission to search her purse, and the officer found a dark-handled folding knife with a three and one-half to four inch blade. Officer Drumm testified that a knife is a deadly weapon and that a person could "do some damage" with this particular knife. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt. And, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing all the evidence in a neutral light, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Nor can we conclude that the implied finding against the self-defense issue was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, we conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated assault with a deadly weapon. We overrule his first, second, and third issues. We affirm the trial court's judgment.