NO. 07-03-0514-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 3, 2005
______________________________
DYLON JAY CARTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15537-C; HON. PATRICK PIRTLE, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
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.
1
Chief Justice Johnson did not participate in this opinion.
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
2
Faircloth testified that he did n ot se e appellant go to his vehicle and there were no bouncers trying
to stop the figh t.
2
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.
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