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Opinion filed May 4, 2006
In The
Eleventh Court of Appeals
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No. 11-04-00283-CR
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ERROL YOUNG, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 6666-D
O P I N I O N
After a bench trial, the trial court found Errol Young guilty of murder and assessed his punishment at twenty-five years in prison. Appellant admitted shooting Marvin Louis Peacock, the victim, but claimed self-defense. Appellant=s only issue is that the evidence was factually insufficient to sustain his conviction because his evidence of self-defense was not disproved beyond a reasonable doubt. We affirm.
Background Facts
Officer Kimberly Watkins with the Abilene Police Department responded to a call regarding an injured man at the Eastern Oaks Apartments. Upon her arrival, she found the victim lying on the ground struggling to breathe. Appellant was in the group of people around the victim. Appellant was in a wheelchair and began moving away when Officer Watkins tried to question him. Appellant initially told Officer Watkins that he did not know the victim and that all he knew was that the victim hung around the apartments smoking blunts.
Officer Watkins and Officer Tim Pipes of the Abilene Police Department followed a trail of blood from the victim to appellant=s apartment, a distance of 217 feet. The apartment door was open; loud music was playing; and the two officers entered to search for other victims or suspects and to secure the probable crime scene. They noticed a handgun on the floor outside the bathroom and a small paring knife next to a wet bar.
After obtaining a search warrant, members of the Abilene Police Department searched the apartment. Detective Jeffrey Guy Bell found a small spent shell casing inside the door on the floor directly below the bar, a small paring knife on the floor, and a small silver handgun on the carpet next to the wall that separates the dining area from the bathroom. A Coors beer can had fallen over and spilled its contents by a chair that was directly by the doorway; the carpet was still wet. Officer Tammy McLean, a forensic specialist, and Detective Russell Clark found an unspent shell in the parking lot near the blood trail. The officers also found marihuana on the bathroom floor and in the toilet.
The bullet found in the victim=s body was fired by the .25 caliber silver handgun found in appellant=s apartment. The spent cartridge and the unspent shells also matched the handgun. Richard Earnest, a forensic scientist and firearms expert, testified that the handgun was not functioning properly; each round had to be manually fed into the chamber. The gun would not feed when the trigger was pulled or when the cocking mechanism was pulled back. Earnest=s tests showed that the gun was fired at the victim from a range of three to five feet.
Dr. Nizam Peerwani, Chief Medical Examiner for Tarrant, Parker, and Denton counties, testified that the victim was six feet, two inches tall and weighed 182.2 pounds. Dr. Peerwani testified that the bullet struck the victim Acoming slightly from the left side of the body to the right@ and Ain a downward direction from front to back and laterally or away from the midline.@ The angle of entry of the bullet was about 25 or 30 degrees away from the body surface. The bullet struck a rib and ricocheted through the victim=s lung.
Because the path of the bullet was downward, Dr. Peerwani pointed out that there were three possibilities: (1) the shooter was at a greater height than the victim, (2) the victim was seated, or (3) the victim was bending forward and may have been seated in a chair or squatting. Dr. Peerwani agreed with Earnest that the gun was fired two or three feet away from the victim. Based on the autopsy, Dr. Peerwani stated that the victim was not facing the shooter straight on when he was shot; his torso was at an angle, and the shooter was to the victim=s left. And because appellant was wheelchair-bound when he fired the handgun, Dr. Peerwani testified that the victim could not have been standing at that moment. Dr. Peerwani also testified that the toxicology report revealed that marihuana was found in the victim=s urine, indicating that the victim had ingested the marihuana some time before he was shot and his body was in the process of excreting the drug.
The State recalled Earnest who testified that, after the gun was fired, a cartridge was ejected over the shooter=s right shoulder and would have landed three to five feet behind the shooter. Based on where the cartridge was found, Earnest pointed out on the apartment diagram where he thought appellant was when appellant fired the shot.
The defense called several of appellant=s neighbors as witnesses who testified that they had heard an argument coming from appellant=s apartment. Jeannie Kay Riley, who lived in Apartment No. 107, heard loud music and gruff mumbling, no yelling, and a Apow.@ Carol Ann Scott and Bradley Wayne Webb, who lived in Apartment No. 207, heard an argument, a statement AAre you trying to kill me, m----r f----r,@ and then a bang. Neither heard any loud music.
Appellant testified that the victim came to his apartment and that they smoked some marihuana. Appellant stated that the marihuana tasted funny; he accused the victim of lacing it and threatened to tell everyone about the victim=s bad marihuana. This provoked an argument. Appellant told the victim to leave several times, but the victim stated that he would Awhip [appellant=s] ass.@ Appellant said that he then pulled his gun out and told the victim to leave. Appellant testified that, when the victim then turned away and reached toward the bar countertop for the knife, appellant shot him.
Appellant testified that the victim=s threatening statements and demeanor led him to believe that the victim would have become more aggressive. Appellant said that he could not have retreated because the victim was in the doorway and appellant was wheelchair-bound.
Appellant insisted that the victim was standing and not sitting in the chair when appellant fired the shot. Appellant repeated that the knife was on the countertop when the victim reached for it. Appellant agreed with the prosecutor that his testimony that the victim was standing directly in front of him when he shot the victim was in direct conflict with the testimony of Dr. Peerwani. Dr. Peerwani had testified that the shot entered the victim on a downward slant and that the victim had to be sitting or leaning forward while in a sitting or squatting position. Appellant claimed that Dr. Peerwani was wrong.
Self-Defense
A person is justified in using force against another person when and to the degree he reasonably believes the force is immediately necessary to protect himself against that person=s use or attempted use of unlawful force. Tex. Pen. Code Ann. ' 9.31 (Vernon 2003). The use of force is not justified in response to verbal provocation alone. Section 9.31(b)(1). If a person is justified in using force under Section 9.31, he is justified in using deadly force if a reasonable person in the same situation would not have retreated and would have reasonably believed that the deadly force was immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force.
A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. When a fact-finder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Id.
When a defendant challenges the factual sufficiency of the evidence supporting a fact-finder=s rejection of a defense, we review all of the evidence in a neutral light and ask whether the State=s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 595.
Analysis
The State argues that there are two reasons why the trial court=s judgment should be affirmed. First, appellant=s use of force against the victim was not justified because the victim had engaged only in verbal provocation. Nothing more than words had been exchanged when appellant pulled his gun out and told the victim to leave his apartment. Appellant did not testify that the victim initially threatened him with the knife, only that the victim Aturned toward the counter to reach for the knife@ after appellant pulled out his gun. Second, even if appellant was entitled to a self-defense claim, the evidence was factually sufficient to overcome appellant=s claim.
The State is correct. Based on appellant=s own testimony, the trial court could have concluded that the victim did not use or attempt to use deadly force against appellant before the latter shot him. It was rational for the trial court to disbelieve part or all of appellant=s testimony. Appellant admitted during cross-examination that his version of the event was in direct conflict with Dr. Peerwani=s testimony that was based on the forensic evidence. Appellant was firm in his testimony that the victim was standing facing him when he shot the victim. Appellant testified that he and the victim had just smoked marihuana, but the toxicology report showed that it had been some time since the victim had smoked marihuana.
The State also points out that appellant=s version was contradicted by Earnest=s testimony. Earnest testified that the spent shell found near the door indicated that appellant was not where appellant said he was. We must defer on this point to the trial court. There were several instances during the testimony when witnesses physically demonstrated their points on the apartment diagram, but that diagram is not in the record. Appellant=s sole issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
May 4, 2006 TERRY McCALL
Do not publish. See Tex. R. App. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.