Appellant
Appellee
Before JOHNSON, C.J., and QUINN, C.J., and REAVIS, J. (1)
In appealing his conviction for aggravated assault with a deadly weapon, appellant Dylon Jay Carter contends that the evidence was legally and factually insufficient for the jury to have found that he did not act in self-defense. We affirm the judgment of the trial court.
On June 6, 2003, appellant was involved in a fight with Darrell Faircloth at a club in Amarillo. While he asserted that he stabbed Faircloth in self-defense, a witness (a bouncer at the club), testified that appellant went to his vehicle and emerged with a knife. (2) So too did the bouncer state that he attempted to dissuade appellant from doing anything with the knife. However, to these entreaties, appellant allegedly replied: "No man, this ain't right. I don't deserve this. He needs to get what he deserves." At that time, Faircloth and his friend were 15 to 20 yards away and were not approaching appellant. Nonetheless, according to the bouncer, appellant ran towards Faircloth and began hitting and stabbing him.
When a defendant raises self-defense, the State is required to prove the elements of the offense beyond a reasonable doubt and persuade the jury that the defendant did not act in self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Additionally, a person is justified in using deadly force against another 1) if he would be justified in using force under §9.31 of the Texas Penal Code, 2) if a reasonable person in the actor's situation would not have retreated, and 3) when and to the degree he reasonably believed that the deadly force was immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. §9.32(a)(1), (2) & (3)(A) (Vernon 2003).
At bar, evidence appears of record indicating that though another may have initially assaulted appellant, the latter retreated to his car to obtain a knife and returned to the fray with it. While both appellant and Faircloth offered testimony contradicting this version of events, the testimony nonetheless constituted some evidence upon which a rational juror could reasonably conclude, beyond reasonable doubt, that appellant committed assault with a deadly weapon. In other words, such a juror could have rationally concluded that a reasonable person, under the circumstances, would not have believed that the use of deadly force was immediately necessary because appellant had the opportunity to retreat when he went to his car and was no longer under attack. Thus, some evidence supports the jury's verdict.
Next, that the evidence supporting the verdict was contradicted by other testimony simply created an issue of fact for the jury to resolve. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1997) (stating that the jury is free to accept or reject the defendant's evidence). It remained free to accept the bouncer's version of events and reject those proffered by appellant and Faircloth, and doing so does not render the verdict manifestly unjust.
Accordingly, both legally and factually sufficient evidence supports the verdict, and we affirm the judgment of the trial court.
Per Curiam
Do not publish.
1. Chief Justice Johnson did not participate in this opinion.
2.
Faircloth testified that he did not see appellant go to his vehicle and there were no bouncers trying to stop the fight.Priority="62" SemiHidden="false" UnhideWhenUsed="false" Name="Light Grid"/>
NO. 07-10-00152-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 17, 2010
KANAYO EUGENE UBESIE, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT OF NAVARRO COUNTY;
NO. 61,354; HONORABLE JOHN JACKSON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATE AND REMAND
Appellant, Kanyao Eugene Ubesie, Jr., has filed notice of appeal of his conviction by jury of the offense of driving while intoxicated, and sentence of 180 days confinement in the Navarro County Jail and $1,000 fine. The sentence of incarceration was suspended and appellant was placed on community supervision for a period of two years. The clerk=s record was filed on April 30, 2010. Included within the clerks record is the trial courts certification of defendants right of appeal.
Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter a certification of defendant=s right of appeal each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d). An appellate court that has an appellate record that includes a certification is obligated to review the record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).
Pursuant to an amendment to Rule 25.2(d), which became effective on September 1, 2007, the certification of defendant=s right of appeal shall include a notice that the defendant has been informed of his rights concerning appeal, as well as his right to file a pro se petition for discretionary review.[1]
The certification contained in the clerk=s record in this case states that this was not a plea-bargain case, and that appellant has the right of appeal. However, the certification does not reflect whether a copy of the certification was given to appellant, and does not include the written admonishments that must be given to appellant. Therefore, the certification on file is defective.
Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a certification of defendant=s right of appeal that complies with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk=s record and filed with the Clerk of this Court on or before October 11, 2010.
This order constitutes notice to all parties of the defective certification, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a supplemental clerk=s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).
It is so ordered.
Per Curiam
Do not publish.
[1] The proper form for Certification of Defendant=s Right of Appeal is contained in Appendix D of the Texas Rules of Appellate Procedure.