No. 05-05-00083-CR
Opinion Filed June 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71899-Wvw. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice FITZGERALD.
Delwyn Lacour-Dorsey appeals his conviction for aggravated assault. A jury acquitted appellant of the charged offense of aggravated robbery, but it found him guilty of the lesser included offense of aggravated assault. The jury assessed his punishment at ten years' imprisonment. Appellant brings two points of error contending the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On March 11, 2003, appellant shot sixty-four-year-old retired school teacher Arnold Young. Appellant and Young testified to different versions of the events leading to the shooting. Young's Testimony
Young testified that on March 11, 2003, at about 6:30 p.m., he was asleep in his den when appellant and Marcus Watts came to his residence and rang the doorbell. When Young opened the door, appellant and Bell were coughing, so he told them to come in. Young fixed them each a small "hot toddy." After finishing his drink, appellant asked to use the bathroom, and Young told him where it was. Young and Watts sat in the den without speaking. Appellant was taking a long time in the bathroom, and Young told Watts, in a voice loud enough for appellant to hear him, that they needed to leave because he had things to do. After spending about twenty minutes in the bathroom, appellant returned to the den holding a pistol. Appellant pointed the gun at Young and told him to get on the floor. Young did not get on the floor but threw two sets of keys and his wallet at appellant. Appellant continued to tell Young to lie on the floor. Young acted as if he was going to lie down but then sprinted down the hallway. As he ran out of the den, appellant fired the gun, hitting Young in the back. Young and Watts then left. Appellant's Testimony
Appellant testified that he met Young when he was twelve years old and looking for work. Young had given appellant various odd jobs and had shown him how to perform various tasks. While appellant was still twelve, Young performed oral sex on him. The next day, appellant angrily confronted Young over that incident and told Young he was going to tell his mother. Young asked appellant not to tell his mother, and appellant testified he was too embarrassed to tell her. Despite having been sexually abused by Young, appellant continued to visit and work for Young on a weekly, and sometimes daily, basis. Until March 11, 2003, Young never mentioned the sexual abuse incident. Appellant testified that on March 11, 2003, he was seventeen years old, and his cousin, Marcus Watts, was nineteen years old. At 2:00 p.m., appellant and Watts went to Young's house looking for work. Appellant had a gun concealed in his clothing, a fact unknown to Young. Young welcomed them to his house and invited them in. Young explained he did not have any work for them, and they talked for a while. After about a half hour, Young got a telephone call. When he hung up, he asked appellant and Watts if they wanted to take a ride with him. Young drove appellant and Watts to a couple of rent houses Young owned. When they returned to Young's house, Young fixed them each a "hot toddy," and they sat in the den. Appellant removed one of the two shirts he was wearing and hid the gun in it. Appellant tasted his drink but did not drink it all. Watts drank all of his drink and the rest of appellant's drink, and Watts fell asleep on the sofa. Appellant excused himself to go to the bathroom, and he returned to the den after about five minutes. Appellant and Young sat and talked until Young asked appellant if he could perform oral sex on appellant. Appellant was angry, both because of the request itself and because Young had brought up the previous sexual-abuse incident. Appellant jumped up and began shouting and cursing at Young. The commotion awakened Watts who asked what was wrong. Appellant told him what Young had asked him, and Watts started arguing with Young. Watts and Young went from arguing to wrestling. Young got Watts in a choke hold. Appellant tried unsuccessfully to pull Young off Watts. Appellant thought Watts was unable to breathe, so appellant retrieved his gun, pointed it at Young, and fired. Young ran out of the room, and appellant and Watts ran out of the house. SUFFICIENCY OF THE EVIDENCE
In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support the jury's rejection of defense of a third person. When a defendant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). When a defendant challenges the factual sufficiency of the rejection of a defense, we view all of the evidence in a neutral light, and we will not reverse unless the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence in support of the defense is so strong that the beyond-a-reasonable-doubt standard for finding against appellant on the defense could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). In this case, there is no dispute that appellant shot Young; the issue is whether appellant was justified in doing so. A person is justified in using deadly force to protect another if he would be justified in using deadly force to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person. See Tex. Pen. Code Ann. § 9.33 (Vernon 2003). In this case, the jury heard evidence of two conflicting versions of the events resulting in the shooting. Under the version of events testified to by Young, Watts was never in any danger from Young, and the shooting was unjustified. Under appellant's version of events, Watts was in imminent danger of being choked to death, and Young's use of deadly force was arguably justified. The jury's decision on the issue of defense of a third person depended upon the jury's determination of the credibility of Young and appellant. In a legal sufficiency analysis, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000); Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency analysis, the appellate court gives deference to the jury's credibility determinations. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005); Smith v. State, 176 S.W.3d 907, 918 (Tex.App.-Dallas 2005, no pet.). In this case, the jury's rejection of appellant's defense was supported by Young's testimony, and we must give appropriate deference to the jury's determination of the credibility of the witnesses. After reviewing all the evidence under the legal and factual sufficiency standards, we conclude the evidence is both legally and factually sufficient to support the jury's rejection of defense of a third person. We overrule appellant's first and second points of error. We affirm the trial court's judgment.