Diante Malik Burrell v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00452-CR
__________________

DIANTE MALIK BURRELL, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 17-28338
__________________________________________________________________

MEMORANDUM OPINION

Javonte Jack died from a gunshot wound he received on November 7, 2017.

A grand jury indicted Appellant Diante Malik Burrell for “intentionally and

knowingly caus[ing] the death of an individual, namely: Javonte Jack, [] the

Complainant, by shooting Javonte Jack with a firearm[.]” Burrell pleaded “not

guilty,” and a jury found Burrell guilty of the murder and assessed punishment at ten

1
years of imprisonment. 1 Burrell timely filed a notice of appeal. In two issues, Burrell

challenges the sufficiency of the evidence supporting the jury’s verdict. We affirm.

Evidence at Trial

Testimony of Officer Shannon Meaux

Shannon Meaux, an officer with the Port Arthur Police Department, testified

that on the night of November 7, 2017, police received a call of shots fired at the

Avery Trace Apartments. The call reported that a person had possibly been hit, and

when he arrived, a young man was lying in the grass near Building 4120. According

to Meaux, near the man was a breezeway that separated the apartments in the

building. Fire department and EMS personnel also arrived at the scene.

Meaux testified that he worked to secure the scene and protect evidence from

contamination, and bystanders pointed out spent shell casings to the police at the

scene. Meaux thought the casings were .38 caliber but he later learned they were

.223 rifle rounds. Meaux also talked with Latoya, 2 a witness at the scene, who

directed Meaux to the parking lot where Meaux found “a small, blue plastic baggie,

like a Ziplock baggie [and] what appeared to be a wadded up receipt.” According to

Meaux, the receipt was later determined to be from a Dollar General store in

Nederland.

1
See Tex. Penal Code Ann. § 19.02(b)(1).
2
We use pseudonyms to refer to the witnesses who were not affiliated with
law enforcement.
2
Testimony of Leesa Bigelow

Leesa Bigelow, a civilian crime scene investigator with the Port Arthur Police

Department, testified that she was dispatched to the Avery Trace Apartments on

November 7, 2017, to collect evidence. Bigelow identified the crime scene as

Building 4120 and the parking lot. She identified State’s Exhibit 1 through 13 as

photographs of the scene that night, and she testified that the photos depict three

shell casings. Bigelow also identified State’s Exhibit 12 as a receipt from a Dollar

General store and Exhibit 14 as a still photograph made from video obtained from

the Dollar General, and she identified Diante Burrell as the person in the photograph.

Bigelow testified that the receipt was found in a parking lot at the scene, and it was

time-stamped 10:42:56 on November 7, 2017 and reads “[h]and towel, gray.”

Bigelow identified a gray hand towel in the photograph in Exhibit 14. Bigelow

identified State’s Exhibit 15 as a video of the scene she made about a week before

trial, and she testified that the video depicts what she saw while crossing a parking

lot and walking through a breezeway between apartments 106 and 108 to another

parking lot and a grassy area where Javonte Jack was found.

Testimony of Tina

Tina testified that she was living in apartment 106 at the Avery Trace

Apartments on November 7, 2017, and that Javonte Jack—her children’s uncle—

had come to her apartment that night at about 8:00 p.m. Tina testified that Javonte

3
had a black backpack with him that night and several hundred dollars. According to

Tina, at one point, Javonte stepped outside, she could hear two people arguing just

outside her apartment door, she heard Javonte say “You ain’t got to fire me up[]”

twice, and then she heard about fifteen gunshots. Tina testified that her grandmother

opened the sliding glass door in the bedroom and found Javonte lying on the ground.

Tina saw that Javonte had been shot, he looked scared, but he could not talk.

According to Tina, Javonte was fully dressed but his pants were around his ankles

and he did not have his backpack. Tina did not know whether Javonte had a gun that

night or who shot first.

Testimony of Latoya

Tina’s cousin Latoya testified that on November 7, 2017, she lived at the

Avery Trace Apartments. Latoya testified that she looked out her window that night

and saw a white Camaro pull up, and a Caucasian woman was driving. Latoya

recalled that she saw the woman get into the back seat of the car and she saw two

Black men got out of the car. According to Latoya, one of the men had a low top

haircut and wore a black hoodie and black pants, and the other had dreadlocks and

wore camouflage. The man with the short hair had a long gun, the other man had a

handgun, she saw the men run toward one of the apartment buildings and go into the

breezeway by Tina’s apartment, and then she heard gunshots. After the gunshots,

Latoya saw the two men run across the parking lot back to the white car and then

4
drive away fast. Latoya recalled that the man with the long gun had something

covering the gun that might have been a towel, and she agreed that the towel pictured

in State’s Exhibit 14 looked like the towel she saw. After the car sped away, Latoya

called 911, and when she went to check on Tina, she saw Javonte lying on the

ground. When the police arrived, she spoke with them.

Testimony of Connie

Connie testified that she stayed at Diante Burrell’s mother’s home on the night

of November 7, 2017, and she slept on the couch. Connie recalled that seven or eight

people stayed at the house that night, including Kirsten, Diante’s mother, and three

men. When Connie woke up the next morning, she heard Diante run out the front

door, she saw that he was carrying a small black gun, and police officers were outside

the house. Connie did not recall seeing Walter Jones at the house that night.

Testimony of Kirsten

Kirsten testified that in the timeframe of November 7-8, 2017, she was dating

Diante Burrell. Kirsten recalled that, on November 7, while she and Diante’s mother

were at a nail salon, she received a call from Walter Jones asking her to pick him up

because an altercation had occurred at the Avery Trace Apartments. Kirsten testified

that she told Walter she could not come just then, but after returning home, Diante

told her they needed to pick up Walter. According to Kirsten, she drove her white

Camaro to the apartments, and Diante and Ethan went with her to pick up Walter.

5
Kirsten testified that she pulled into the parking lot, and after talking with Walter

and another friend, she got into the back seat, and Diante, Ethan, and Walter “kind

of jogged[]” to a different section of the apartment complex and through a

breezeway. Kirsten then heard five or six gunshots, and then a couple more gunshots,

and she thought it sounded like different guns had been fired. Kirsten testified that

Walter, Ethan, and Diante then ran back to her car, and she saw they were carrying

pistols, she knew that Diante carried a pistol, but she did not recall seeing guns when

they drove to the apartments. According to Kirsten, Diante told her a shooting had

happened and after she received calls from people saying her car had been involved

in a shooting, she moved her car to her own home in Groves but returned to the

Burrell home. Kirsten recalled that at some point, someone picked up Walter, and

the next morning, police were at the house. Kirsten gave a statement to police at the

police station. She also testified that Walter is just over six feet tall and has long

dreads.

Testimony of Javonte’s Mother

Javonte’s mother testified that she dropped Javonte off at the Avery Trace

Apartments on the night of November 7, 2017. She testified that it was common for

Javonte to carry a backpack, Javonte was saving money to buy his son a car, and she

had given Javonte $100 that day.

6
Testimony of Detective Terry Cater

Detective Terry Cater, with the Port Arthur Police Department, became

involved in this case after a briefing on November 8, 2017, and to assist with a cell

phone dump of Javonte Jack’s phone. At the briefing, he learned that two Black

males and a White female had been located at a specific residence, and upon arriving

at the residence, he saw a white vehicle, but not the Camaro officers were looking

for. Cater observed Diante Burrell running out of the front door of the house carrying

a black semiautomatic handgun. Cater ordered Diante to drop the gun and stop, but

Diante did not, and Cater followed Diante through an alley and ultimately observed

Diante throw the gun over the seawall into the ship channel. Cater testified that two

other officers arrested Diante, and a dive team ultimately retrieved the gun.

Testimony of Sergeant John Fontenette

Sergeant John Fontenette with the Port Arthur Police Department testified that

on November 8, 2017, he was called to transport Diante Burrell. Fontenette

identified State’s Exhibit 17 as a recording made from his body camera that depicted

him getting ready to transport Diante to the county jail when Diante was in custody,

and the exhibit was published to the jury. Fontenette testified that, in the video, he

could see news reporters standing outside the door waiting for Fontenette to walk

outside with Diante. On cross-examination, Fontenette agreed that in the video, he

could hear Diante say “I’m innocent. [] They shot first.” Also in the video, Diante

7
can be heard to say “Self-defense. [] He shot at me first[,]” and “They’re hating on

me. [] I got something they don’t have.”

Testimony of Detective LaKeisha Thomas

Detective LaKeisha Thomas, with the Port Arthur Police Department, testified

that she became involved in this case after a briefing on the morning of November

8, 2017. After the briefing, she drove to an address on 4th Street where she observed

a white vehicle and two people who matched descriptions given during the

briefing—a Black male with dreadlocks and a White female. Thomas recalled that

she called for backup, and after someone inside the home fled the residence, Major

Cole and Detective Cater chased after that person.

Testimony of Brandy Henley

Brandy Henley testified that she is a forensic firearms examiner, and she has

worked for the Jefferson County Regional Crime Lab for about thirteen years.

Henley testified that ten items she examined in this case were casings or fired

copper-jacketed bullets, of which two were hollow-point bullets. According to

Henley, one item was found in a breezeway, two items were found inside an

apartment, and another was found in a parking lot. Henley testified that two hollow-

point bullets were from the autopsy of Javonte Jack. Henley further testified that four

of the items were .38 9mm caliber projectiles from the same firearm and two items

were in the .40 10mm caliber class. Henley was unable to determine the caliber class

8
of one item. Henley determined that three items were fired from the same firearm

and two others were fired from the same firearm. Henley agreed that the items

retrieved from the autopsy were fired from the same firearm and not a 7.62 or .40

caliber weapon. She also agreed that the firearm retrieved from water did not fire

any of the shell casings they found at the scene and it did not fire any of the

projectiles retrieved in the autopsy.

Henley examined the photographs in State’s Exhibits 6 through 9, which she

had not seen before trial, and she testified that they appeared to be fired cartridge

cases and appeared to be handgun or pistol ammunition. After examining State’s

Exhibits 6 and 22, Henley agreed that Exhibit 6 looked more like handgun caliber

and Exhibit 22 looked more like rifle caliber.

Testimony of Dr. John Wayne

Dr. John Wayne, a forensic pathologist with Forensic Medical Management

Services, testified that he reviewed the autopsy report of Javonte Jack that was

prepared by his colleague Dr. John Ralston, who at the time of trial was working in

another state. Dr. Wayne testified that the autopsy determined that the manner of

death was homicide, and the cause of death was multiple gunshot wounds. Wayne

testified that Exhibit 27, an autopsy photograph, depicted three gunshot wounds. He

also testified that the autopsy photographs depicted a gunshot wound in the hip and

left thigh area, in the left leg near the knee, in the right groin area, and to a finger.

9
 The defense did not offer any witnesses or admit any evidence at trial.

Sufficiency of the Evidence

Appellant’s first issue challenges the sufficiency of the evidence to support

the conviction. Appellant argues there is no evidence that he acted intentionally or

knowingly to cause the death of Jack either as a principal or as a party and there was

no evidence that Appellant fired any shot or participated in firing any shots.

Appellant argues that “[t]he totality of the evidence indicates that appellant was

merely present and did not participate in the alleged offense.” Appellant also argues

that under the jury charge given in this case, the jurors could only convict him if they

found that he caused Javonte’s death “as a party to Walter Jones’ actions[]” and that

no rational trier of fact could have found all the essential elements beyond a

reasonable doubt. According to Appellant, his conviction “necessarily relies on

speculative views of the evidence.”

In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational fact-

finder could have found the essential elements of the offense beyond a reasonable

doubt. 3 We give deference to the fact-finder’s responsibility to fairly resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

3
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).
10
from basic facts to ultimate facts.4 If the record contains conflicting inferences, we

must presume that the fact-finder resolved such facts in favor of the verdict and defer

to that resolution. 5 While a jury is permitted to draw reasonable inferences from the

evidence, it is not permitted to draw conclusions based on speculation or factually

unsupported inferences or presumptions. 6 The jury as fact-finder is the sole judge of

the weight of the evidence and credibility of the witnesses, and it may believe all,

some, or none of the testimony presented by the parties. 7

We also “‘determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.’” 8 “Direct and circumstantial evidence are treated

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.’” 9 Each fact need not point directly and independently to the guilt of the

4
Hooper, 214 S.W.3d at 13.
5
Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010); Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
6
See Hooper, 214 S.W.3d at 15.
7
See Metcalf v. State, 597 S.W.3d 847, 865 (Tex. Crim. App. 2020) (citing
Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Heiselbetz v. State,
906 S.W.2d 500, 504 (Tex. Crim. App. 1995)).
8
Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17).
9
Id. (quoting Hooper, 214 S.W.3d at 13).
11
defendant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. 10

A person commits murder if he “intentionally or knowingly causes the death

of an individual[.]” 11 “Murder is a ‘result of conduct’ offense, which means that the

culpable mental state relates to the result of the conduct, i.e., the causing of the

death.” 12 A person acts intentionally with respect to a result of his conduct when it

is his conscious objective or desire to engage in the conduct or cause the result. 13 A

person acts knowingly with respect to a result of his conduct when he is aware that

his conduct is reasonably certain to cause the result. 14

“Intent and knowledge are fact questions for the jury[] and are almost always

proven through evidence of the circumstances surrounding the crime.” 15 The jury

may infer intent from any facts that tend to prove its existence, including the acts,

words, and conduct of the defendant. 16 Intent to kill may also be inferred from the

nature and extent of the injuries inflicted on the victim, the method of committing

10
Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Hooper, 214
S.W.3d at 13; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
11
Tex. Penal Code Ann. § 19.02(b)(1).
12
Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003).
13
Tex. Penal Code Ann. § 6.03(a).
14
Id. § 6.03(b).
15
Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers,
J., concurring); see also Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App.
2003).
16
Manrique, 994 S.W.2d at 649.
12
the crime, the size and strength of the parties, and the defendant’s flight from the

scene.17 A jury may also infer knowledge from such evidence.18

Under the law of parties, “[a] person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible, or by both.” 19 Culpability under the law of

parties does not distinguish between principals or accomplices. 20 “‘Evidence is

sufficient to convict under the law of parties where the defendant is physically

present at the commission of the offense and encourages its commission by words

or other agreement.’” 21 Party participation may be shown by events occurring

before, during, and after the commission of the offense, and may be demonstrated

by actions showing an understanding and common design to do the prohibited act. 22

17
See id. (noting that intent may be inferred from “the method of committing
the crime and from the nature of [the] wounds inflicted on the victim[]”); Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (concluding that intent may “be
inferred from the extent of the injuries and the relative size and strength of the
parties”); Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994)
(considering the nature of the injury inflicted and the defendant’s flight from the
scene, among other facts, in concluding that the evidence was sufficient to support
the jury’s finding of intent to kill); Felder v. State, 848 S.W.2d 85, 90 (Tex. Crim.
App. 1992) (considering the number and location of the stab wounds inflicted on the
victim in examining the sufficiency of the evidence to support intent to kill finding).
18
Manrique, 994 S.W.2d at 649.
19
Tex. Penal Code Ann. § 7.01(a).
20
See id. § 7.01(c).
21
Salinas v. State, 163 S.W.3d 734, 739-40 (Tex. Crim. App. 2005) (quoting
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)).
22
Id.
13
 The jury charge instructed that, in order to find Burrell guilty, the jury must

agree on the following four elements beyond a reasonable doubt:

1. in Jefferson County, Texas, on or about November 7, 2017,
Walter Jones caused the death of an individual, Javonte Jack, by
shooting Javonte Jack with a firearm; and
2. Walter Jones did this intentionally or knowingly; and
3. the defendant solicited, encouraged, directed, aided, or
attempted to aid Walter Jones to commit the offense of murder; and
4. the defendant acted with the intent to promote or assist the
commission of the offense of murder by Walter Jones.

We determine the sufficiency of the evidence with reference to a hypothetically

correct jury charge. 23 A hypothetically correct charge “accurately sets out the law,

is authorized by the indictment, does not unnecessarily increase the State’s burden

of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.” 24 Where, as here,

the State has tried the case under a party theory of liability, a hypothetically correct

jury charge would state that the defendant “was criminally responsible as a party to

the offense of murder committed by another if acting with the intent to promote or

assist in the commission of the murder, he solicited, encouraged, directed, aided or

attempted to aid the other person to commit the murder.” 25

23
See Garcia v. State, 578 S.W.3d 106, 123 (Tex. App.—Beaumont 2019,
pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
24
Malik, 953 S.W.2d at 240; see also Curry v. State, 30 S.W.3d 394, 404 (Tex.
Crim. App. 2000).
25
See Garcia, 578 S.W.3d at 124 (citing Tex. Penal Code Ann. §§ 7.01(a),
7.02(a)(2), 19.02(b)(1)); see also Adames v. State, 353 S.W.3d 854, 862-63 (Tex.
14
 Kirsten testified that Walter called her on November 7 to pick him up because

an altercation had occurred at the Avery Trace Apartments. She also testified that

later in the day, Diante told her they needed to go pick up Walter. Kirsten testified

that, after driving to the Avery Trace Apartments, Walter, Ethan, and Diante went

through a breezeway toward an apartment where Tina lived and where Tina testified

Javonte was visiting that night. Kirsten then heard numerous gunshots, after which

Walter, Ethan, and Diante ran back to the car, and she could see they had guns.

Diante then told Kirsten there had been a shooting. Tina testified that after Javonte

walked out of her apartment, she heard people arguing, she heard Javonte say “You

ain’t got to fire me up[,]” and then she heard gunshots. Tina also testified that Javonte

was found lying on the ground near her apartment with his pants around his ankles

but without his backpack. Tina thought someone might have taken the money she

had seen Javonte counting earlier in the evening. Latoya testified that, from her

apartment at the Avery Trace Apartments, she saw two men get out of a vehicle in

the parking lot and run toward another apartment building, one man had a long gun,

and the other had a handgun. Latoya observed the man with the long gun had

something like a towel covering his gun. After Latoya saw the man run into the

Crim. App. 2011) (determining “[t]he court of appeals correctly applied the Jackson
evidentiary-sufficiency standard to the hypothetically correct jury charge” in
conducting its evidentiary-sufficiency review and correctly found that the evidence
was legally sufficient to support his conviction as a party).
15
breezeway near Tina’s apartment, she heard gunshots, and then she saw the men run

back into the parking lot, get into a white car, and drive away fast. Officer Meaux

testified that a receipt from Dollar General was found in the parking lot, and Latoya

testified that the receipt was dated November 7, 2017, and the receipt was for a gray

towel. Latoya testified that the man with the long gun had something covering the

gun that might have been a towel and that the towel pictured in a still photograph

made from Dollar General video looked like the towel carried by the man she saw

that had a long gun. A crime scene investigator also testified that the man in the

photograph looked like Diante. The crime scene investigator also identified shell

casings that were found in the breezeway near where Javonte was found from photo

exhibits. A forensics firearms examiner testified the spent bullets found at the crime

scene were of two different caliber classes. Dr. Wayne testified that Javonte died

from multiple gunshot wounds. The video taken from Sergeant Fontenette’s body

camera as he was transporting Diante depicts Diante telling reporters “They shot

first[,]” “Self-defense[,]” and “He shot at me first.” When police went to the house

where Diante was staying the day following the incident, Diante ran from police and

threw a gun over the seawall.

On this record, we cannot say that the evidence of Appellant’s guilt was only

speculative. The jury could have made reasonable inferences from the evidence and

found that the evidence showed beyond a reasonable doubt that Diante Burrell

16
“act[ed] with the intent to promote or assist in the commission of the murder, [and

that] he solicited, encouraged, directed, aided or attempted to aid the other person to

commit the murder.” 26 Appellant’s participation as a party to the offense could be

inferred from events that occurred before, during, and after the commission of the

offense. 27 The jury could also have inferred guilt from evidence that Appellant fled

from police the day after the incident. 28 After reviewing all the evidence and viewing

the evidence in the light most favorable to the verdict and applying a hypothetically

correct jury charge, we conclude that a rational fact-finder could have found the

essential elements beyond a reasonable doubt necessary to conclude that Appellant

was criminally responsible under the law of parties for the offense of murder. 29 We

reject Appellant’s sufficiency challenge, and we overrule his first issue.

Self-Defense

Appellant’s second issue argues that the State failed to prove beyond a

reasonable doubt that Appellant did not act in self-defense. According to Appellant,

the evidence “overwhelmingly established that, if Appellant shot [Javonte] directly

26
See Garcia, 578 S.W.3d at 124 (citing Tex. Penal Code Ann. §§ 7.01(a),
7.02(a)(2), 19.02(b)(1)); see also Adames, 353 S.W.3d at 862-63.
27
See Salinas, 163 S.W.3d at 740.
28
See Devoe v. State, 354 S.W.3d 457, 470 (Tex. Crim. App. 2011); Alba v.
State, 905 S.W.2d 581, 586 (Tex. Crim. App. 1995) (citing Foster v. State, 779
S.W.2d 845, 859 (Tex. Crim. App. 1989); Hill v. State, 161 S.W.3d 771, 776 (Tex.
App.—Beaumont 2005, no pet.).
29
See Malik, 953 S.W.2d at 240; Hooper, 214 S.W.3d at 13; Garcia, 578
S.W.3d at 123.
17
or as a party, the shooter was likely acting in self-defense since [Javonte] fired

first[.]”

A person commits murder if he intentionally or knowingly causes the death

of an individual or intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes death. 30 Texas recognizes the general defense

of justification, which excludes criminal responsibility for otherwise criminal

behavior. 31 Self-defense is one form of justification. 32 A person is justified in using

deadly force against another when and to the degree he reasonably believes the force

is immediately necessary to protect himself against the other’s use or attempted use

of unlawful force, and when and to the degree that he reasonably believes the deadly

force is immediately necessary to protect himself against the other’s use or attempted

use of unlawful deadly force. 33

The defendant has the initial burden to produce some evidence to support a

claim of self-defense. 34 Generally, once a defendant produces some evidence raising

the issue of self-defense, the State bears the burden of persuasion to show beyond a

reasonable doubt that the defendant’s actions were not justified. 35 “[A] defendant

30
Tex. Penal Code Ann. § 19.02(b)(1), (2).
31
Id. § 9.02.
32
Id. § 9.31.
33
Id. § 9.32(a).
34
See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
35
Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Valverde v.
State, 490 S.W.3d 526, 527-28 (Tex. App.—San Antonio 2016, pet ref’d).
18
bears the burden of production and the State bears the burden of persuasion on a

defense under Penal Code section 2.03.”36 To meet its burden, the State is not

required to produce additional evidence. 37 If the jury finds the defendant guilty, it

has made an implied finding against any defensive theory raised by the defendant.38

As stated in Valverde,

[w]hen a defendant challenges the legal sufficiency of the evidence to
support the jury’s implicit rejection of his self-defense claim, “we look
not to whether the State presented evidence which refuted appellant’s
self-defense testimony, but rather we determine whether after viewing
all the evidence in the light most favorable to the prosecution, any
rational trier of fact would have found the essential elements of [the
offense] beyond a reasonable doubt and also would have found against
appellant on the self-defense issue beyond a reasonable doubt.” 39

Self-defense is a fact issue to be determined by the jury, and the jury is free to accept

or reject any defensive evidence on the issue.40 In conducting a legal sufficiency

review, we defer to the jury’s assessment of the credibility of the witnesses and the

weight to be given to their testimony. 41

Appellant argues that video evidence showed him talking to reporters when

he was arrested and the video depicted Appellant saying, “He shot at me first[]” and

36
Zuliani, 97 S.W.3d at 594 n.5 (citing Saxton, 804 S.W.2d at 913-14).
37
Saxton, 804 S.W.2d at 913; Valverde, 490 S.W.3d at 528.
38
Saxton, 804 S.W.2d at 914; Valverde, 490 S.W.3d at 528 (citing Zuliani, 97
S.W.3d at 594).
39
490 S.W.3d at 528 (quoting Saxton, 804 S.W.2d at 914).
40
See Saxton, 804 S.W.2d at 913-14.
41
Brooks, 323 S.W.3d at 899; Valverde, 490 S.W.3d at 528.
19
that the State failed to introduce any contrary evidence. Tina testified that Javonte

was visiting her on the night of the incident, she did not know whether Javonte had

a gun that night, and she did not know who shot first. Tina also testified that when

she went outside to where Javonte was lying, she did not see a gun near him. A police

officer and a crime scene investigator testified that shell casings were found in the

area near Javonte and in the adjacent parking lot, but they did not testify that they

found a gun with Javonte. Kirsten testified that she saw Walter, Ethan, and Diante

with guns when they were running back to the car at the Avery Trace Apartments

the night of the incident, but she did not remember seeing the guns earlier. There

was no evidence that Appellant or anyone else at the scene that night had a gunshot

injury.

Because the jury charge included an instruction on self-defense, yet the jury

found Appellant guilty, the jury implicitly rejected Appellant’s claims that he acted

in self-defense. 42 The jury could have disbelieved he acted in self-defense. 43

Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found against Appellant on his claim of self-defense. 44 We

overrule Appellant’s second issue.

42
See Zuliani, 97 S.W.3d at 594-95.
43
See Metcalf, 597 S.W.3d at 865; see also Jones v. State, 984 S.W.2d 254,
258 (Tex. Crim. App. 1998) (explaining that a jury is free to disbelieve a defendant’s
statement that he acted in self-defense).
44
See Tex. Penal Code Ann. §§ 9.31, 9.32; Saxton, 804 S.W.2d at 913-14.
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 Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on March 2, 2021
Opinion Delivered May 19, 2021
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

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