No. 05-04-01683-CR
Opinion Filed July 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-01447-QS. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Salim Premjee of aggravated assault with a deadly weapon. During the punishment phase, appellant pleaded true to one enhancement paragraph. The trial court found the enhancement paragraph true and assessed punishment at seven years' confinement. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a knife, during commission of the offense. 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.
Background
Shamsa Valliani operated a hair salon in Carrollton. Kareem Valliani, her husband, opened a juice shop next door to the salon. The hair salon and the juice shop had separate front entrances, but were connected to one another in the back. On June 5, 2004, appellant came into the salon at about 2:30 p.m. Kareem testified he had seen appellant at church from time to time, but appellant was not a friend. Kareem spoke briefly to appellant, then entered the juice shop from the back room. Appellant left the salon and went to the juice shop through the front entrance. Kareen asked if appellant wanted anything. Appellant said, "If you can put tequila in it." Kareem testified he smelled alcohol on appellant. After Kareem told appellant to go to a bar if he wanted alcohol, appellant returned to the salon. Kareem did not feel comfortable about appellant being in the salon around the female customers and employees because appellant was intoxicated, so Kareem returned to the salon. In the salon, Kareem saw appellant staring at a male customer who was getting his eyebrows threaded, a technique used to shape the brows. Appellant, in a loud voice, asked Kareem why the man was getting his brows threaded, then asked, "Is it good for sex?" Kareem testified that his religion did not permit them to talk that way in front of women. Kareem told appellant that he should not talk that way in a family business and asked appellant to leave. Kareem walked appellant to the front door, telling appellant that he should leave the premises. When they got outside, appellant pulled out a knife. Kareem testified that after appellant pulled out the knife, he grabbed appellant's hand to keep appellant from using the knife. Kareem testified that, except for grabbing appellant's hand, he did not hit, choke, or make any physical contact with appellant until after appellant pulled out the knife. Kareem struggled with appellant for a few minutes before several people separated them. Kareem told appellant that he would not call the police if appellant left the premises, then went back into the salon. Appellant continued to come into and go out of the salon. At one point, appellant came inside, grabbed his groin area in front of female customers and employees, and said, "If you have guts, call the police . . . I will whoop your ass." Kareem called the police. An audiotape of Kareem's 911 call was played for the jury. Shamsa testified that appellant had been to the salon a few times for haircuts and she had seen him in the church parking lot, but she did not know appellant's name. On June 5, 2004, appellant came into the salon for a haircut. When appellant walked past Shamsa to go to the bathroom, she smelled an odor of alcohol coming from him. While she was working with another customer, Shamsa heard appellant ask Kareem why a man was getting his eyebrows threaded and was it "because of a sexual reason." Kareem told appellant to leave, and walked appellant out of the salon. Shamsa went back to finish her customer, but she ran outside when she heard people calling her name. Shamsa saw that appellant had a knife in his hand. Appellant's hand was bleeding. Kareem was holding appellant's hands up. Shamsa and other individuals separated Kareem and appellant. When she and Kareem went back into the salon, appellant followed them, yelling that Kareem should come outside. Shamsa saw appellant make an obscene gesture and yell that Kareem should come outside and fight if he had guts. Shamsa testified she never saw Kareem hit appellant. Eliseo Esquivel testified that as he walked out of a station after buying gas, he heard a commotion and saw two men scuffling on the sidewalk in front of the salon. Esquivel took a few steps toward the men, intending to help separate them, but stopped when he saw that one of the men had a knife. Esquivel identified appellant as the man with the knife. Esquivel testified that appellant was the aggressor, appellant was yelling and talking loudly, and appellant appeared to be intoxicated. Esquivel testified the knife was open when he saw it in appellant's hand. The other man grabbed appellant's wrists and held appellant back. Esquivel went back into the station and had the clerk dial 911. Esquivel spoke to the 911 operator until the police arrived on the scene. Carrollton police officer Steve Lair testified that when he arrived on the scene, he saw several individuals standing outside the salon pointing toward appellant, who was standing between two parked cars in front of the salon. Lair detained appellant and recovered a silver folding knife from appellant's front pocket. Lair testified that appellant appeared to be intoxicated because he smelled like alcohol, had bloodshot and glassy eyes, and slurred speech. Lair photographed the scene and found blood drops inside the salon near the front door. Lair testified that appellant never said he had been attacked or hurt. Appellant testified he used the knife in self-defense and that the knife was closed when he pulled it from his pocket. According to appellant, he went to the salon to get a haircut, but he first went into the juice shop to congratulate Kareem on opening a new business. Appellant denied asking Kareem for a drink. Appellant claimed he said to Kareem, "I hope you don't serve the tequila." Appellant admitted that when he went back into the salon, he asked Kareem why a man was getting his eyebrows threaded and asked if it was a style or sexual. Kareem got offended, accused appellant of being drunk, and told appellant to leave. Appellant testified that between 11:00 a.m. and noon that day, he drank two sixteen-ounce beers while he was packing up items to place in storage. Appellant denied that he was intoxicated when he went to the salon. Appellant testified that after Kareem told him to leave, Kareem put his arm around appellant's neck and walked appellant out the front door. When they reached the sidewalk, Kareem squeezed appellant's neck tighter. Appellant testified he carried a knife in his pocket because he used it to open boxes at his job. Appellant intended to show Kareem the knife only to make Kareem stop choking him. Appellant testified he reached into his pocket and opened and closed the knife several times while it was still inside his pocket, trying to decide whether to pull it out. He cut his middle finger on the blade. Appellant denied the knife was open when he pulled it from his pocket. He claimed that because the blade and knife handle were both silver, the witnesses mistakenly thought the knife was open. Appellant testified that after he pulled out the closed knife, Kareem grabbed his hands and "was using force." Appellant claimed he was the person who told Kareem to call the police and that he never went back inside the salon after the scuffle with Kareem. Appellant admitted he grabbed his crotch and said he would "whoop" Kareem. Appellant claimed he told a police officer that Kareem choked him and that he showed the knife so Kareem would stop. Appellant further testified he had prior convictions for assault, violation of a protective order, possession of a controlled substance, attempted possession of a firearm by a felon, and unauthorized use of a motor vehicle. The prosecutor called two rebuttal witnesses. Dinnfar Patel, an employee at the salon, testified that when appellant came into the salon, she was threading a male customer's eyebrows. Appellant stared at the man, then looked at his own eyebrows in the mirror and said something to Kareem. Kareem tried to take appellant outside. Patel testified she did not hear what appellant said because she was working on her customer. But she saw both appellant and Kareem go out the front door. A customer who sat near the window screamed. Patel ran to the door and saw appellant and Kareem struggling with each other. Patel did not see anything in appellant's hand. Shamsa and several other people separated appellant and Kareem. When Kareem and Shamsa came back inside the salon, appellant followed them and said, "I just asked why the guy do eyebrows because of any sexual thing, why they do." Patel saw Kareem take appellant outside again. When Patel looked out the front door, she saw appellant holding a knife in his hand. Appellant's hand was bleeding. Patel testified she could see the knife blade because the knife was open. She saw Kareem hold appellant's hand so appellant could not use the knife. After people separated the two men, Kareem came back inside the salon. When appellant tried to follow Kareem, Shamsa tried to close the door. Patel testified she never saw Kareem choke appellant or have appellant in a choke hold inside the salon. Carrollton police officer Ronald McCraw testified he transported appellant to jail. Appellant had a small cut on his right middle finger. When McCraw questioned appellant at the jail, appellant did not say Kareem had assaulted or choked him. Appellant initially said he never pulled the knife out of his pocket. After McCraw questioned appellant about the cut on his finger, appellant stated he cut himself when he pulled the knife out of his pocket. Appellant never said he was defending himself from an assault. McCraw believed appellant was intoxicated at the time he questioned appellant. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence to support the conviction and the jury's rejection of a defense, we view all of the evidence in the light most favorable to the verdict, determine whether any rational fact finder would have found the essential elements of the offense beyond a reasonable doubt and also whether it 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. See 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 conviction and the rejection of a defense, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We also review all of the evidence to determine 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 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 or knowingly threatened Kareem Valliani with imminent bodily injury and appellant used or exhibited a deadly weapon, a knife, during the commission of the offense. See Tex. Pen. Code Ann. § 22.02 (Vernon 2004-05). A "deadly weapon" means a firearm or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. 1.07(a)(17). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Discussion
Appellant argues the evidence is legally and factually insufficient because appellant was acting in self-defense. Appellant contends the evidence shows he was not the aggressor, that Kareem forcefully held appellant in either a headlock or chokehold, and that appellant pulled an unopened knife from his pocket in self-defense. Appellant asserts that because both the knife blade and handle were silver, the witnesses mistakenly thought the knife was open. The State responds that the evidence is legally and factually sufficient to support the jury's implicit rejection of appellant's self-defense claim because witnesses testified that appellant was the aggressor. There was conflicting evidence before the fact finder. Four witnesses testified they saw appellant hold the knife with the blade open, and appellant testified he did not open the knife when he pulled it from his pocket. Appellant testified that Kareem held him in a headlock starting inside the salon and, once outside, Kareem tightened his grip. But, Shamsa and Patel testified they did not see Kareem touch or grab appellant while inside the salon. Appellant denied that he went back into the salon after the scuffle with Kareem, but other witnesses testified that he did, and blood was found inside the front door of the salon. Appellant essentially asks us to find that his testimony is more credible than that of the other witnesses. However, the jury was free to accept or reject any or all of the defensive evidence. See Saxton, 804 S.W.2d at 913. A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). 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.