Opinion issued October 2, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-01077-CR
MICHAEL LEE FULLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th Judicial District
Harris County, Texas
Trial Court Cause No. 1048902
MEMORANDUM OPINION
Appellant, Michael Lee Fuller, appeals from a judgment convicting him for the second-degree felony offense of manslaughter. See Tex. Penal Code Ann. § 19.04 (Vernon 2007). The jury found appellant guilty, found true the enhancement paragraph, and sentenced him to 25 years in prison and a fine in the amount of $5,000. In four issues, appellant contends the evidence that supports the jury’s finding of guilt for manslaughter and that rebuts his claim of “self-defense” is legally and factually insufficient to support his conviction. We conclude that the evidence is legally and factually sufficient and therefore affirm.BackgroundAppellant lived with his brother Charles Leonard Fuller. According to appellant and one of his neighbors, Verdell Dunham, appellant had a tumultuous relationship with complainant, which sometimes led to verbal and physical altercations between them. Appellant’s father and Dunham also reported that complainant verbally and physically abused both of his parents in the past.
On the night that complainant died, Dunham heard appellant and complainant arguing. Dunham heard appellant say, “I told you.” After that, she heard complainant banging on his front door and saying “Let me in.” After hearing this confrontation, Dunham heard a gunshot. When she saw neither brother outside their house the next day, she grew concerned and contacted their father, who in turn called appellant and asked him to check on complainant. While on the telephone with his father, appellant discovered the deceased complainant. Appellant’s father quickly arrived at the house, and he and appellant summoned emergency services. Police officer Miles responded to the scene.
Appellant told Officer Miles that he and complainant engaged in a verbal argument, complainant struck him in the face with a fire extinguisher, and appellant then went to his room and slept. Appellant said nothing about having fired a gun. Appellant stated that sometime in the night, a gunshot in the rear of the house woke him, but he did not investigate it until the next afternoon when his father called him. Appellant told Officer Miles that he found a .45 caliber handgun next to complainant’s body. Appellant admitted that the gun belonged to him.
From the blood spatters, a police officer determined complainant was shot in the hallway. Officer Miles found the .45 caliber handgun next to complainant’s body, as well as other physical evidence. Officers also observed a damp load of laundry in the washing machine, which contained a possibly bloodstained pair of jeans. Officers also found a fire extinguisher with blood on it. Ballistics and medical evidence indicated that appellant’s gun fired the bullet, which the assistant medical examiner recovered from complainant’s forearm. The bullet that struck complainant grazed complainant’s thumb before it entered his left forearm. Officers photographed appellant’s face, which showed a large abrasion and blood around his right eye, as well as other smaller abrasions and dried blood on his face.
At trial, appellant claimed self-defense. Appellant testified by giving a different version of the events than what Dunham and Officer Miles described. He stated that on the night complainant was killed, he left the house to purchase cigarettes and took his loaded and cocked handgun with him. After returning a short time later, he entered the front door with the gun in his hand, and complainant abruptly and without provocation struck him in the face with a fire extinguisher. He told complainant not to hit him again, but when complainant raised the fire extinguisher once more, appellant pointed the gun at him and squeezed the trigger. Complainant then walked back to his bedroom leaving a substantial blood trail from the front entryway, where appellant shot him, to complainant’s bedroom, where complainant collapsed near his bed. Appellant maintained that he then dropped the gun in the hallway. Appellant slept until the next day, unaware he had mortally wounded his brother. During direct examination, appellant averred that he needed to shoot complainant in order to protect himself, but later insisted during cross-examination that the gun fired accidentally when complainant tried to hit him again. The jury declined to convict appellant of murder, finding him guilty of the lesser included offense of manslaughter.
Sufficiency of the Evidence
Appellant contends in four issues that the evidence is legally and factually insufficient to support the jury’s finding of guilt for manslaughter and the jury’s rejection of his self-defense claim.
A. Standard of Review
In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 416 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
“Appellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). “The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record.” Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.
B. Evidence of Recklessness to Prove Manslaughter
In his first and second issues, appellant asserts that the evidence supporting the jury’s finding of guilt for manslaughter is legally and factually insufficient because no evidence was adduced to show he “consciously disregarded” any risk. A person commits the offense of manslaughter “if he recklessly causes the death of an individual.” Tex. Penal Code Ann. § 19.04. A person acts recklessly “when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur.” Id. at § 6.03(c) (Vernon 2007).
“[A] defendant who is familiar with guns, who knows a gun is loaded, and who points it at another person, is consciously disregarding a risk that his conduct—pointing a loaded weapon at another—may cause harm or death and is at least reckless.” Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) (citing Simpkins v. State, 590 S.W.2d 129, 134 (Tex. Crim. App. 1979)); Gaona v. State, 733 S.W.2d 611, 615–17 (Tex. App.—Corpus Christi 1987, pet. ref’d) (holding evidence legally sufficient to prove manslaughter based on evidence that Gaona, who was familiar with rifles and frequently hunted with rifles, aimed rifle he knew was loaded in general direction of victim and pulled trigger while gun was pointed to ground to scare victim); see also Rodriguez v. State, 699 S.W.2d 358, 359 (Tex. App.—Dallas 1985, no pet.).
The State asserts appellant was familiar with the inherent danger of guns and refers to his testimony of having accidentally shot himself with one in 1975. The State also refers to appellant’s admission that he knew he pointed a loaded gun at complainant. Appellant contends that he was unable to perceive any risk of harm or death stemming from his pointing the gun at complainant because the events occurred so quickly that he did not have the opportunity to reflect.
Viewing the evidence in the light most favorable to the verdict, a rational jury could have found appellant guilty of manslaughter because appellant, who was familiar with guns, pointed the gun he knew was loaded at complainant and fired the gun. See Gaona, 733 S.W.2d at 615–17. We conclude the evidence is legally sufficient to support the jury’s determination that appellant’s conduct was reckless. See id. We overrule appellant’s first issue.
Viewing all the evidence in a neutral light, both that which supports the verdict and that which undermines it, the evidence is factually sufficient. Although appellant contends he could not perceive the danger because the events happened quickly, testimony by Dunham refutes that claim. Dunham said the argument lasted approximately 15 minutes. The only evidence that supports appellant’s account of the events leading up to complainant’s death are his statements made at trial and to police officers at the scene. On the day the police arrived at the house, appellant denied that he shot complainant. Then, at trial, appellant changed his story and described a sudden attack by complainant in which appellant reacted in self-defense, justifiably shot complainant, and then dropped the gun in the hallway. However, this version contradicts both what Dunham heard and the location where police found the gun next to complainant’s body in complainant’s bedroom. As the exclusive judge of the credibility of the witnesses, the jury could properly reject appellant’s testimony concerning the events. See Lancon, 253 S.W.3d at 707. We conclude the evidence is not so weak that the determination of recklessness is clearly wrong or manifestly unjust and that the determination of recklessness is not against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We conclude the evidence is factually sufficient to support the jury’s determination that appellant’s conduct was reckless. See id. We overrule appellant’s second issue.
C. Deadly Force in Defense of Self
In his third and fourth issues, appellant asserts that the evidence rebutting his “self-defense” theory is legally and factually insufficient because complainant’s violent past and the injuries he inflicted upon appellant with the fire extinguisher made it reasonable that appellant believed deadly force was necessary to protect himself.
The State contends the jury could not have found self-defense because in acquitting appellant of murder, it determined appellant did not act intentionally or knowingly in shooting complainant. The State asserts a defendant cannot be guilty of recklessly killing someone while acting in self-defense because self-defense only applies when the defendant acts with reasonable belief that his use of force is immediately necessary to protect himself against the other’s use or attempted use of force. See, e.g., Avila v. State, 954 S.W.2d 830, 843 (Tex. App.—El Paso 1997, pet ref’d) (appellant’s testimony that he acted in self-defense precluded instruction on reckless discharge of weapon); Mock v. State, 848 S.W.2d 215, 219 (Tex. App.—El Paso 1992, pet ref’d) (“One cannot accidentally or recklessly act in self-defense”). We agree the jury could not have found that appellant acted in defense of himself after determining he acted recklessly.
Viewing the evidence neutrally, we conclude the evidence is not so weak that the verdict is clearly wrong or manifestly unjust and the verdict is not against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold the evidence is factually sufficient to sustain the manslaughter conviction. See id. We overrule appellant’s third and fourth issues.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).