In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00232-CR
____________________
BRYAN CHANCE MCBEE, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 13-04-03591-CR
________________________________________________________ _____________
MEMORANDUM OPINION
Bryan Chance McBee appeals from his third-degree felony conviction for
assault on a family member. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West
Supp. 2013). The jury found McBee guilty and assessed punishment at eight years
in prison. McBee was convicted of assaulting T.P., a 47 year old female.
McBee argues on appeal that the evidence was legally insufficient to support
his conviction, and that the trial court abused its discretion in assessing attorney
fees against him. We conclude the evidence was legally sufficient to support his
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conviction, but we otherwise modify the judgment to delete the assessment of
attorney fees against McBee, and we affirm the judgment as modified.
EVIDENCE PRESENTED AT TRIAL
Testimony of T.P.
T.P. testified that she and McBee had been in an “on and off” relationship
for about a year and a half, and that they were both homeless. T.P. explained that
on or about April 19, 2012, she was at Chad’s bar in Montgomery County. T.P.
stated that McBee was angry at her for allegedly dating someone else. McBee
confronted T.P. at Chad’s bar, and McBee began using profanity and falsely
accusing her of things.
T.P. was upset and she ran out of the bar. McBee texted her and told her he
had stolen her money. T.P. left and went to a secluded wooded area where McBee
stayed in a tent and waited for him. She planned to talk with him and get her
money back. When McBee arrived late that evening, McBee and T.P. argued
again. McBee threatened T.P. and her adult children. At one point T.P. “took off
running” and McBee pursued her but T.P. tripped and fell. When she fell, McBee
stated: “Oh, look, you broke your arm. Now I am going to have to kill you.”
McBee then stepped on her elbow, grabbed her wrist, yanked her off the ground,
threw her into trees, kicked her, and threw her into a wooden bedframe in one of
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the tents. McBee called her names, slapped her, and choked her with his hand.
During the assault, McBee even called T.P.’s family and told them he had her, and
then McBee put his phone on speaker phone so they could hear him assaulting her.
The assault lasted hours. When T.P. awakened around 5:30 or 6:00 a.m. the next
morning, McBee was still with her. He asked T.P. if she remembered what
happened the night before. In order to get away, T.P. answered, “Yes. And I am so
sorry.” McBee was concerned T.P. would turn him into the police, and T.P.
assured McBee that she would not. She told McBee that she loved him and that
they could “go to like McDonald’s or something like that and [she] would slip and
fall and then he could sue them” and get money. McBee went back to sleep, and
T.P. escaped to a restaurant near the wooded area where the tents were located.
T.P. stated that because she was in pain, embarrassed, and scared of McBee,
she initially told the 911 operator that she fell. Later, she told Deputy Holden that
McBee had assaulted her. She also told the investigating officer she wanted to
press charges against McBee. T.P. testified that McBee had also assaulted her once
before on November 16, 2010, when she and McBee were dating. In the earlier
incident, McBee broke both of her wrists. A judgment convicting McBee of the
2010 assault/family violence was admitted into evidence.
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Testimony from T.P.’s Adult Son
T.P.’s adult son testified that he had received a call from McBee during the
assault, and McBee was threatening T.P.’s family. T.P.’s son could hear T.P.
begging for help while McBee was hitting her and laughing at her. T.P.’s son
testified that he did not call law enforcement or come to her aid because he was
unaware of T.P.’s and McBee’s location.
Testimony from Paramedic
Clayton Rosencranz, a paramedic for Montgomery County Hospital District,
testified that he responded to a call in the early morning hours of April 20, 2012,
from a local restaurant. When Rosencranz arrived at the restaurant, bystanders at
the restaurant directed him to an emotionally distraught female sitting in a booth
inside the restaurant. The female, T.P., was crying hard, breathing rapidly, and
holding her arm. T.P. initially told Rosencranz that she injured her arm by tripping
and falling. Based on T.P.’s visible injuries and emotional state, Rosencranz did
not think her story “add[ed] up.” When Rosencranz began to ask specifics about
how her injuries occurred, T.P. “began to cry even worse” and told Rosencranz
that she had been assaulted by her boyfriend.
T.P. informed Rosencranz that McBee, her boyfriend, was across the street
in the woods, and because Rosencranz was concerned for her safety, he locked the
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restaurant door and called for law enforcement through dispatch. T.P.’s injuries, as
observed by Rosencranz, were an obvious closed-elbow deformity, blood in her
right eye, a bruised jaw, a bruised neck, and bruising to her entire back. She was in
extreme pain and Rosencranz was concerned that she had sustained possible rib or
spinal fractures.
Testimony from Azwell and Holden
Deputy Chris Azwell with the Montgomery County Sheriff’s Office also
testified. Azwell was dispatched to the restaurant. He interacted briefly with T.P.
prior to her transport to the hospital. According to Azwell, T.P. had either a broken
or dislocated arm, “[d]eep, dark, purple bruising” on her sides and back,
lacerations and scratches on her upper body, and dried blood around her mouth.
T.P. told Azwell that McBee was the person who had injured her, and she provided
Azwell details of McBee’s location, which was a wooded area approximately three
or four hundred yards from the restaurant. Azwell and three other officers looked
for McBee and found him in a tent in the woods. McBee appeared startled when he
saw the officers and said, “What did she do?” McBee was detained, escorted to a
patrol car, and given his Miranda rights. Azwell did not observe any injuries to
McBee.
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Deputy Lance Holden with the Montgomery County Sheriff’s Office met
with T.P. at the hospital, and he described his interview of T.P. for the jury. She
was cooperative but hesitant to speak with Holden. Holden stated that T.P. was
certain that McBee would kill her the next time she came into contact with him.
Holden photographed T.P.’s injuries, and the photographs were admitted into
evidence at trial. Holden testified that he thought T.P.’s wounds appeared fresh,
and that T.P. was in “[s]evere pain.” Holden described her primary injuries as
those to her elbow and her ribs. He testified that he saw handprints on her throat
prior to the medical staff’s placement of a neck brace on her neck. She also
appeared to have broken blood vessels in her eyes which Holden believed were
consistent with being strangled.
Testimony from Defense Witness
Matthew Butcher testified for the defense. Butcher and McBee had worked
together for seven years. He worked with McBee earlier on the day of the assault
and went with him to Chad’s bar. Butcher explained that after they were at the bar
for ten or fifteen minutes, T.P. called the bar and told Butcher that she had fallen
over a bicycle and broken her arm. She was upset and said she needed Butcher to
bring McBee home. Butcher took McBee immediately to where he lived in the
woods, and then Butcher went home.
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LEGAL SUFFICIENCY
In issue one, McBee contends the evidence is legally insufficient to support
his conviction. He specifically argues that the testimony was insufficient to allow a
jury to reasonably infer that he was not acting in self-defense. As requested by
McBee, the jury charge included a self-defense instruction.
It is the defendant’s burden to produce some evidence to support a claim of
self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Upon
producing such evidence, the State has the burden of persuasion to disprove the
defense. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). The
State is not required to produce evidence to refute the claim but is required to
prove its case beyond a reasonable doubt. Id. at 913. The issue of self-defense is a
fact issue to be determined by the jury, which is free to accept or reject the
defensive issue. Id. at 913-14. A jury’s verdict of guilt is an implicit finding
rejecting a defendant’s self-defense theory. Id. at 914.
We review all of the evidence in the light most favorable to the verdict and
determine if a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Because the
State carries the burden of persuasion to disprove self-defense beyond a reasonable
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doubt, we review a challenge to the sufficiency of the evidence supporting a jury’s
rejection of a claim of self-defense under only the Jackson standard. Saxton, 804
S.W.2d at 914.
In reviewing the evidence, we give deference to the jury to resolve any
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from the facts. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). We treat direct and circumstantial evidence equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is entitled to judge the
credibility of witnesses and can choose to believe all, some, or none of the
testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991).
A person commits the offense of assault if he intentionally, knowingly, or
recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1).
Although usually a Class A misdemeanor, the offense is elevated to a third-degree
felony if it is committed against a person whose relationship with the defendant is
described in sections 71.0021(b) (dating), 71.003 (family), or 71.005 (household)
of the Texas Family Code, and if the defendant has been previously convicted of
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an assault involving family violence. See Tex. Penal Code Ann. § 22.01(b)(2)(A);
see also Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West 2014).
The jury heard T.P.’s testimony regarding the assault. She explained to the
jury the violent assault by McBee—he grabbed her, stepped on her elbow, slapped
her, threw her into trees and into the bedframe, choked her, and threatened to kill
her. The jury heard law enforcement’s testimony that the wounds appeared “fresh”
and that T.P. appeared scared of McBee. The jury saw photographs of T.P.’s
injuries and heard T.P.’s son’s testimony of the telephone call from McBee during
the assault. Evidence of McBee’s prior assault against T.P. was also presented at
trial, along with the 2010 judgment convicting him of assault/family violence. The
only evidence of self-defense is McBee’s videotaped comments while he was
detained by police. In the video, McBee states that T.P. went “ballistic[,]”and
kicked and hit him, so he slapped and pushed her. There is no indication in the
record before us that McBee received any injury during the incident. The jury was
not required to believe McBee’s version of what transpired that day. After viewing
the evidence in the light most favorable to the verdict, a rational jury could have
found the essential elements of the offense beyond a reasonable doubt and also
could have found against McBee on his self-defense claim. We overrule issue one.
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ATTORNEY FEES
In issue two, McBee argues the trial court abused its discretion in assessing
attorney fees against him, because he is indigent. The State concedes the judgment
should be modified to delete the award of attorney fees.
Under article 26.05 of the Texas Code of Criminal Procedure, the trial court
has authority to order reimbursement of fees of an appointed attorney if the court
determines that the defendant has financial resources that enable him to offset in
part or in whole the costs of legal services provided to him. Tex. Code Crim. Proc.
Ann. art. 26.05(g) (West Supp. 2013). Article 26.04 provides that the judges of
courts trying criminal cases by local rule shall adopt and publish written
countywide procedures for timely and fairly appointing counsel for an indigent
defendant in the county, who is arrested for, charged with, or taking an appeal from
a conviction of a misdemeanor punishable by confinement or a felony. See Tex.
Code Crim. Proc. Ann. art. 26.04(a) (West Supp. 2013). McBee states in his brief
that his first trial counsel was appointed by the trial court, and the State does not
dispute that contention. McBee was living in a tent in the woods at the time of his
arrest. He was appointed counsel for his appeal, and the trial court granted his
motion for a free transcript on appeal. See Mayer v. State, 274 S.W.3d 898, 901
(Tex. App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010);
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Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.) (If
a court determines that a defendant is indigent, then he is presumed to remain
indigent for the remainder of the proceedings in the case unless a material change
in the defendant’s financial circumstances occurs.).
The sum of $7,312.50 in attorney fees was taxed against McBee in the
judgment. There is no evidence in the record that McBee’s financial circumstances
materially changed either after the appointment of counsel and before the trial of
the case, or after the appointment of appellate counsel for appeal of the case. See
generally Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); In re Daniel,
396 S.W.3d 545, 547-50 (Tex. Crim. App. 2013). We therefore sustain issue two
and modify the judgment to delete that portion of the judgment requiring that
McBee pay attorney fees in the amount of $7,312.50. Otherwise, the judgment is
affirmed as modified.
AFFIRMED AS MODIFIED.
_________________________
LEANNE JOHNSON
Justice
Submitted on February 26, 2014
Opinion Delivered April 9, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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