Dwayne Rodney Woodruff v. the State of Texas

DWAYNE RODNEY WOODRUFF, § No. 08-19-00141-CR

Appellant, § Appeal from the

v. § 384th District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (20170D02504)

OPINION

Appellant, Dwayne Woodruff, challenges his conviction of murder. TEX.PENAL CODE

ANN. § 19.02(c). In three issues, Appellant asserts trial court error and seeks reversal. In Issues

One and Two, Appellant asserts charge error for the trial court’s alleged improper comment on the

weight of the evidence and inclusion of a provocation instruction over his objection. In Issue Three,

Appellant challenges the legal sufficiency of the jury’s rejection of his self-defense theory. We

affirm.

BACKGROUND

Factual Background

In March of 2017, Appellant and James Eberhardt, the deceased, had an altercation in the

parking lot of an apartment complex. The only eyewitness to the altercation, Jessica Kerce,

testified at trial. Kerce knew both Appellant and Eberhardt and testified she saw the two arguing

in the parking lot. According to Kerce, Appellant was throwing clothes out of a vehicle she
recognized as Appellant’s. Kerce did not know what exactly the two were arguing about, but stated

Appellant wanted Eberhardt out of his car and away from him. Kerce then saw Appellant drive off

in his car and recalled hearing Eberhardt say something along the lines of, “Ow, my hand.” At this

point, Kerce claimed Appellant stopped and got out of his vehicle to “check.” Eberhardt was not

hurt and looked visibly fine to Kerce; she then turned around and asked her child’s father to

intervene because she did not want the cops involved. After asking her child’s father to put an end

to the altercation, she turned back around and saw Eberhardt on the ground bleeding. When Kerce

neared Eberhardt, he told her to the call the cops because he needed help, but according to Kerce,

“by then it was too late already.”

A resident of the apartment complex, Tony Juhan, saw Eberhardt covered in blood and

moaning; Juhan called 911. Eberhardt died in the ambulance en route to the hospital.

Upon speaking to authorities, Kerce told the police it was Appellant who killed Eberhardt.

Kerce provided a physical description of Appellant and said he was driving a silver PT Cruiser

with tinted windows. From the inception of the altercation, Kerce recalled hearing Appellant

repeatedly say “I don’t give a fuck.” Kerce did not see how exactly Eberhardt was hurt and did not

see either of the men with a weapon.

A dispatch was broadcasted referencing a gray/silver PT Cruiser driven by Appellant, who

was suspected of having stabbed Eberhardt. El Paso Police Department Officers Jeffrey Bell and

Saul Gutierrez were on patrol duty and heard the dispatch. They passed a vehicle matching the

description and pulled the silver PT Cruiser over. Appellant was driving and was accompanied by

a female passenger. As the officers approached the vehicle, Appellant said, “I did it because he

broke into my house.” Appellant told the officers he had a knife and officers confirmed a knife

located in the center console of the car. Another officer, Juan Campos, later arrived at the scene

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and recalled Appellant being upset and telling the officers, “I told you I was the one you were

looking for” and/or “Why did you tell him my name? I told you my name, motherfucker. Why are

you telling him? I told you I was the one you were looking for,” and when the officers looked

inside the vehicle, Appellant said, “I told you that was the knife. I already told you what happened.”

Appellant also told officers, “I took care of mine. He was up in my shit, so I took care of it.”

Cathey Serrano, DNA forensic scientist with the El Paso Crime Lab, tested the evidence

found in Appellant’s vehicle. From her findings, Eberhardt’s DNA was found on the blade of the

knife and on a pair of shorts located in Appellant’s vehicle. Dr. Janice Diaz-Cavalliery, El Paso

County Deputy Medical Examiner, performed Eberhardt’s autopsy and distinguished five injuries

inflicted by an object with a sharp edge. Dr. Diaz-Cavalliery determined Eberhardt’s cause of death

was a combination of all the sharp injuries, including penetration of the gallbladder, the kidney,

and the brachial and peroneal arteries.

Procedural Background

Appellant was indicted of murder. TEX.PENAL CODE ANN. § 19.02(c). Following a trial,

the jury returned a guilty verdict, and the trial court imposed a thirty-five-year sentence in the

Texas Department of Criminal Justice Institutional Division. This appeal followed.

DISCUSSION

Appellant appeals from a jury verdict finding him guilty of murder. TEX.PENAL CODE ANN.

§ 19.02(c). In three issues, Appellant challenges his conviction asserting charge error and

maintains the evidence is legally insufficient.

CHARGE ERROR

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 In Issue One, Appellant argues the trial court erred by including what he alleges is an

impermissible comment on the weight of the evidence in the jury charge. In Issue Two, Appellant

challenges the inclusion of what he characterizes as a provocation instruction in the jury charge.

Standard of Review & Applicable Law

Article 36.19 of the Texas Code of Criminal Procedure governs the standard for reversal

on appeal in Texas regarding the requirements of Article 36.14, which relate to the charge of the

court. TEX.CODE CRIM.PROC.ANN. art 36.19. The judgment shall not be reversed unless the error

appearing from the record was “calculated to injure the rights of [the] defendant.” TEX.CODE

CRIM.PROC.ANN. art 36.19.

In reviewing charge error, we must first determine whether error actually exists, then

evaluate whether the error was harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.

1984). If error exists, the harm analysis differs depending on whether the charge was timely and

properly objected to. Id. at 171. When there is a proper trial level objection, jury charge error

requires reversal when the reviewing court finds “some harm” to the accused’s rights. Id. When

no proper objection was made at trial, reversal is required only if the error is egregious and created

such a harm that it deprived the accused of a fair and impartial trial. Id. at 171. In both instances,

the actual degree of harm must be reviewed in light of the entire jury charge, the state of the

evidence—including the contested issue and weight of the probative evidence—the argument of

counsel, and any other relevant information revealed by the record as a whole. Id.

Issue One Analysis

In Issue One, Appellant alleges the trial court committed reversible error, claiming the

inclusion of retreat language in the charge harmed his defensive theory.

As a general rule, a jury charge should set forth the law applicable to the case; “it should

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not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts,

or use any argument in its charge calculated to arouse the sympathy or excite the passions of the

jury.” Barlett v. State, 270 S.W.3d 147, 150 (Tex.Crim.App. 2008). An instruction that assumes

the truth of a controverted issue is a comment on the weight of the evidence and is erroneous.

Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986).

Appellant contests the charge, specifically, paragraphs X and XI. Paragraph X of the charge

referenced a general duty to retreat and reads as follows:

Now if you find . . . viewed from the standpoint of [Appellant] that his life
or person was in danger and there was created in his mind a reasonable expectation
or fear of death or serious bodily injury from the use of unlawful deadly force at
the hands of James Eberhardt . . . and that acting under such apprehension, he
reasonably believed that the use of deadly force on his part was immediately
necessary to protect him against James Eberhardt or others’ if any, use or attempted
use of unlawful deadly force, and he stabbed the said James Eberhardt and that a
reasonable person in defendant’s situation would not have retreated, then you
should acquit the defendant on the grounds of self[-]defense; or if you have
reasonable doubt as to whether or not the defendant was acting in self-defense on
the occasion and under the circumstances, then you should give the benefit of that
doubt to defendant and find him not guilty. [Emphasis added].

Paragraph XI of the charge further stated:

If you find from the evidence beyond a reasonable doubt (1) that at the time
and place in question the defendant did not reasonably believe that he was in danger
of death or serious bodily injury; (2) that a reasonable person in defendant’s
situation, at such time and place, would have retreated before using deadly force
against James Eberhardt; or (3) that defendant, under the circumstances, did not
reasonably believe that the degree of force actually used by him was immediately
necessary to protect himself against James Eberhardt or others, if any, use or
attempted use of unlawful deadly force, if any, as viewed from defendant’s
standpoint, at the time, then you must find against the defendant on the issue of
self-defense. [Emphasis added].

Appellant maintains these paragraphs are not authorized by statute and constitute comments on the

weight of the evidence. According to Appellant, the improper self-defense instruction enabled him

from fully developing his legal entitlement to an acquittal, and as such, because his entire case was

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dependent on self-defense, Appellant claims he was harmed by the instructions.

a.) Actual Harm

Step one of the Almanza standard requires we first determine whether actual error exists.

Almanza, 686 S.W.2d at 171. In 2007, the Texas Legislature enacted Sections 9.32(c) and (d) to

the Penal Code, which provides that a person does not have a legal duty to retreat under certain

circumstances. See TEX.PENAL CODE ANN. § 9.32(c) and (d). There is generally no duty to retreat,

unless the defendant provoked the person against whom force was used or if the defendant was

engaged in criminal activity at the time. Morales v. State, 357 S.W.3d 1, 5 (Tex.Crim.App. 2011).

When the provisions do not apply and the person has a duty to retreat, the failure to retreat may be

considered in determining whether a defendant reasonably believed his conduct was immediately

necessary to defend himself, and a prosecutor can argue the failure to retreat as a factor relevant

to the defensive issue. Id. However, as the Court of Criminal Appeals stated, this does not mean

the trial court should submit a jury instruction regarding a general duty to retreat. See id. “[S]pecial,

non-statutory instructions, even when they relate to statutory offenses or defenses, generally have

no place in the jury charge.” See Walters v. State, 247 S.W.3d 204, 211 (Tex.Crim.App. 2007).

Accordingly, because the trial court included an instruction regarding a general duty to retreat,

which also does not conform to the current statute, we find error. Morales, 357 S.W.3d at 6

(holding “the trial court erred in submitting the italicized portions of the jury charge set out above

because those instructions were not authorized by statute and they constituted comments on the

weight of the evidence”).

b.) Harm Analysis

Finding actual error, we now determine the degree of harm. The harm analysis depends on

whether the charge was timely and properly objected to. Almanza, 686 S.W.2d at 171. To preserve

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error for appellate review, the record must show the complaint was made to the trial court by a

timely objection that stated the grounds for the ruling sought with sufficient specificity unless those

grounds are apparent, and the trial court ruled or refused to rule on the objection. TEX.R.APP.P.

33.1(a). In the instant case, at the charge conference, neither party objected to the “retreat”

language in the jury charge. The only request referencing a duty to retreat was during the defense’s

motion in limine. However, a ruling on a motion in limine preserves nothing for appellate review.

Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.App.—Houston [1st Dist.]

1996), aff’d, 972 S.W.2d 35 (Tex. 1998). Thus, because no proper objection was made at trial,

reversal is required only if the error is egregious and created such a harm that it deprived Appellant

of a fair and impartial trial. Almanza, 686 S.W.2d at 171.

The State argues any error was harmless because Appellant was not entitled to a self-

defense instruction to begin with. We agree.

“A defendant is entitled to an instruction on self-defense if the issue is raised by the

evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of

what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586,

591 (Tex.Crim.App. 2001). A defense is supported by the evidence if there is some evidence, from

any source, on each element of the defense that would support a rational inference by a reasonable

jury that that element is true. Shaw v. State, 243 S.W.3d 647, 657-58 (Tex.Crim.App. 2007).

However, if the evidence, when viewed in the light most favorable to the defendant, does not

establish self-defense on each element, the defendant is not entitled to an instruction on the issue.

Ferrel, 55 S.W.3d at 591. Furthermore, the burden is on the defendant to produce some evidence

supporting the justification of self-defense. See Lay v. State, 359 S.W.3d 291, 297 (Tex.App.—

Texarkana 2012, no pet.).

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 The Texas Court of Criminal Appeals has long held that the “reasonable belief” standard

in the self-defense statutes (TEX.PENAL CODE ANN. §§ 9.31 and 9.32) includes both subjective and

objective components. See Werner v. State, 711 S.W.2d 639, 645 (Tex.Crim.App. 1986)

(“Although the test assumes that a defendant may act on appearances as viewed from his standpoint

. . . the test also assumes the ‘ordinary prudent man test of tort law.’”). Accordingly, to justify

submission of a jury charge on the issue of self-defense, there must be some evidence in the record

that shows: (1) Appellant’s subjective state of mind—whether he had some apprehension or fear

of being the recipient of the unlawful use of force from another, see Smith v. State, 676 S.W.2d

584, 585 (Tex.Crim.App. 1984), and that; (2) Appellant’s subjective apprehension of fear was

objectively reasonable—the ordinary prudent-person standard. See Werner, 711 S.W.2d at 645.

Here, there is no evidence of Appellant’s subjective state of mind—neither from Appellant

himself nor from any other source. From our review of the record, we are unable to conclude

Appellant had an immediate apprehension or fear that Eberhardt was about to use unlawful force

or deadly force. The only eyewitness, Kerce, testified she did not see Eberhardt holding a weapon;

in fact, she “didn’t see a weapon at all” and did not see the entirety of the altercation, specifically,

the actual stabbing of Eberhardt, because she kept going in and out of her apartment. The State

called several witnesses ranging from responding officers, to Kerce—again, the only eyewitness—

to the deputy medical examiner, the DNA forensic scientist, and residents of the apartment

complex where the murder occurred. Not one of these witnesses offered any testimony shedding

light as to Appellant’s state of mind. Appellant also did not testify and offered no witnesses on his

behalf. What we know is Appellant and Eberhardt had a verbal argument in a parking lot, Appellant

was seen throwing clothes out of his vehicle, and Eberhardt was stabbed to death. No one saw the

actual stabbing, and neither Appellant nor Eberhardt was seen with a weapon. Thus, the record

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fails to establish Appellant had an apprehension or fear of being the recipient of the unlawful use

of force or deadly force from another. Hernandez v. State, 946 S.W.2d 108, 114 (Tex.App.—El

Paso 1997, no pet.)(“Even if appellant’s testimony is accepted as true, neither self-defense nor

defense of a third person is raised. Appellant offered no evidence that either of the victims had a

weapon or attempted to use deadly force. Absent this showing, the accused is not entitled to a jury

instruction on self-defense.”).

Furthermore, even if we did have insight into Appellant’s state of mind, the apprehension

of fear must have been objectively reasonable in light of the fact that according to the eyewitness,

the altercation was a verbal argument. The use of deadly force is justified against another if (1) the

actor would be justified in using force against another under Section 9.31; and (2) when the actor

reasonably believes deadly force is immediately necessary to protect himself against the other’s

use or attempted use of unlawful deadly force. See TEX.PENAL CODE ANN. §§ 9.31 and 9.32. Again,

we simply do not have evidence from the record, or even evidence we would render “weak,” to

support Appellant’s affirmative defense he was justified in using deadly force against Eberhardt.

Because Appellant was not entitled to a self-defense instruction, he did not suffer egregious

harm by the court’s inclusion of retreat language in the charge. Torres v. State, No. 08-13-00027-

CR, 2016 WL 5404773, at *3 (Tex.App.—El Paso Sept. 28, 2016, pet. ref’d)(not designated for

publication)(holding “Appellant was not entitled to a self-defense instruction, and any defect in

the instruction actually given was harmless.”); see also Burks v. State, 40 Tex.Crim. 167, 49 S.W.

389, 391 (Tex.Crim.App. 1899)(holding “while the court’s charge was erroneous when it

attempted to limit or cut off the right of self-defense, yet there was no self-defense in this case,

and the error was harmless.”).

Issue One is overruled.

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 Issue Two Analysis

In Issue Two, Appellant further argues the trial court committed reversible charge error by

the inclusion of a provocation instruction.

In addition to the law on self-defense discussed in Issue One, there are limitations on a

defendant’s right to self-defense, namely, what is referred to as provocation. See Elizondo v. State,

487 S.W.3d 185, 196 (Tex.Crim.App. 2016). The law of provocation stands for the proposition

that, “if the defendant provoked another to make an attack on him, so that the defendant would

have a pretext for killing the other under the guise of self-defense, the defendant forfeits his right

of self-defense.” Smith, 965 S.W.2d at 512; see also TEX.PENAL CODE ANN. § 9.31(b)(4). The

Court of Criminal Appeals held that three elements must be met with sufficient evidence before a

charge on provocation is required: (1) that the defendant did some act or used some words that

provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the

attack, and (3) that the act was done, or the words were used for, the purpose and with the intent

that the defendant would have a pretext for inflicting harm upon the other. Smith, 965 S.W.2d at

513. The court further held an instruction on provocation is only warranted when there is evidence

from which a rational jury could find every element of provocation beyond a reasonable doubt. Id.

at 514.

To determine whether a provocation instruction was proper, an appellate court, viewing

the evidence in the light most favorable to giving the instruction, asks whether there was sufficient

evidence from which a rational jury could have found provocation beyond a reasonable doubt. See

id. However, an instruction under Section 9.31(b)(4) is separate and distinct from an instruction

under Section 9.31(b)(1). See TEX.PENAL CODE ANN. § 9.31(b)(1), (4).

a.) Actual Harm

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 At the charge conference, Appellant objected to the language of the jury charge that read,

“The use of force is not justified: Section (1) in response to verbal provocation alone.” Appellant

objected on the basis the three Smith elements were not proved beyond a reasonable doubt to

warrant the inclusion of the provocation instruction. The trial court overruled the objection,

explaining:

I believe this is going to not necessarily that the defendant provoked it; that it goes
to the decedent having used words to justify the use of force. I mean, the way you
argued it, the provocation is me provoking you to attack me, and then me going at
you.

. . .

And that I can’t use it as a defense if I provoked you. But I believe this is
going to the issue of whether the decedent used words and that the defendant
responded with violence. So your argument is noted for the record, but that’s what
I believe it’s being offered for, and that’s what will be argued before this jury. It
will not be argued as you have stated for the record.

Now on appeal, the State argues review of the record shows the complained-of instruction

was not a “provocation” instruction, but rather, tracked the statute and was not erroneous. We

agree.

The trial court instructed the jury on Section 9.31(b)(1), which regulates when the use of

force is not justified and forfeits the defensive theory of self-defense. See TEX.PENAL CODE ANN.

§ 9.31(b)(1). The record reveals that prior to the stabbing, Appellant and Eberhardt were arguing;

however, the record is silent as to what was said during the argument and whether physical or

verbal threats were made. Given these facts, the trial court properly tracked the language of the

Penal Code in instructing the jury that the use of force against another is not justified in response

to verbal provocation alone. See Malone v. State, 405 S.W.3d 917, 927 (Tex.App.—Beaumont

2013, pet. ref’d) (“A jury charge that tracks the language of a particular statute is a proper charge”

and “[b]ecause the jury charge tracked the applicable statutory language, we conclude that the

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charge was not erroneous.”). Our sister court in Beaumont ruled on the same issue as applied to a

provocation instruction within the jury charge. Sanchez v. State, No. 09-18-00163-CR, 2020 WL

1696012, at *6-7 (Tex.App.—Beaumont Apr. 8, 2020, pet. ref’d)(mem.op., not designated for

publication). In Sanchez, the appellant argued the trial court erred in denying his request to strike

language in the jury instruction pertaining to a verbal provocation instruction. Id. at *6. The court

held there was no charge error because the charge tracked the statutory language, which derived

directly from Sections 9.31(b) and 9.32, and did “not contain superfluous language outside of the

statute . . . .” Id. at *7.

Similarly, here, the language Appellant complains of, “The use of force is not justified:

Section (1) in response to verbal provocation alone,” mirrors the language of Section 9.31(b)(1),

word for word. See TEX.PENAL CODE ANN. § 9.31(b)(1)(“The use of force against another is not

justified: (1) in response to verbal provocation alone[.]”). The trial court’s charge must fully

instruct the jury on the law applicable to the case and here, the complained-of instruction derived

directly from the applicable statute and did not constitute error. See Malone, 405 S.W.3d at 926;

see also Quintana v. State, 777 S.W.2d 474, 478 (Tex.App.—Corpus Christi 1989, pet. ref’d)(a

jury instruction “that the use of force by a defendant against another is not justified if in response

to verbal provocation alone” is not a charge on provoking the difficulty and does not limit any self-

defense instruction given).

Having found no charge error, we need not conduct a harm analysis.

Issue Two is overruled.

LEGAL SUFFICIENCY

In Issue Three, Appellant asserts the evidence is legally insufficient to support the jury’s

rejection of his self-defense theory.

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 Standard of Review & Applicable Law

Under the Due Process Clause of the U.S. Constitution, the State is required to prove every

element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

19 (1979). The critical inquiry in a legal sufficiency challenge is whether the evidence in the record

could reasonably support a conviction of guilt beyond a reasonable doubt. Id. at 319.

When reviewing the legal sufficiency of the evidence, we must view all of the evidence in

the light most favorable to the verdict to determine whether any rational juror could have found

the defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v.

State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). A lack of direct evidence is not dispositive on

the issue of the defendant’s guilt; guilt may be established by circumstantial evidence alone.

Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). We measure the evidence by the

elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 303

S.W.3d 331, 333 (Tex.App.—El Paso 2009, no pet.)(citing Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997)). A hypothetically correct charge accurately sets out the law, is authorized

by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately

describes the offense for which the defendant was tried. Malik, 953 S.W.2d at 240.

We bear in mind that the trier of fact is the sole judge of the weight and credibility of the

evidence, and we must presume the fact finder resolved any conflicting inferences in favor of the

verdict and we defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014)

(citing Jackson, 443 U.S. at 319). A reviewing court may not reevaluate the weight and credibility

of the evidence or substitute its judgment for that of the fact finder. Isassi v. State, 330 S.W.3d

633, 638 (Tex.Crim.App. 2010). Our only task under this standard is to determine whether, based

on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the

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essential elements of the crime beyond a reasonable doubt. Id.

Analysis

Appellant was charged with murder. TEX.PENAL CODE ANN. § 19.02(c). A person commits

the offense of murder if he intentionally or knowingly causes the death of an individual.

TEX.PENAL CODE ANN. § 19.02(b)(1). Thus, a hypothetically correct jury charge would ask

whether Appellant: (1) intentionally or knowingly caused the death of James Eberhardt; (2) by

stabbing James Eberhardt with a knife. Id. In addition, Appellant particularly challenges the jury’s

rejection of his self-defense theory, claiming the evidence is insufficient. Appellant specifically

phrases his complaint as, “Appellant Woodruff respectfully argues that analysis of the legally

insufficiency of the evidence to support the jury’s rejection of self-defense may be so conflated

within the analysis of point of error one and point of error two that to attempt to address this issue

independent of point of error one and point of error two would be futile and encapsulate the legal

insufficiency analysis in an empty vessel.” This is a conditional point of error. According to

Appellant, the rejection of self-defense was so contrary to the weight of the evidence as to be

clearly wrong and unjust.

Appellant lists facts and evidence adduced at trial that he claims support his self-defense

theory; however, we may not reevaluate the weight and credibility of evidence, for the trier of fact

is the sole judge and we must presume the fact finder resolved any conflicting inferences in favor

of the verdict and we defer to that resolution. See Dobbs, 434 S.W.3d at 170. Appellant merely

refers us to the factual evidence presented to the jury at trial, which the jury used to reasonably

deduce his guilt; without more from Appellant, we cannot conclude the evidence is insufficient.

Furthermore, this point of error is entirely dependent on Issues One and Two, and because we

overruled both issues, the weight of Issue Three’s analysis fails as a conditional point of error.

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 In any case, the evidence was sufficient to support not only the jury’s rejection of self-

defense, but also Appellant’s conviction. The evidence showed Appellant and Eberhardt had a

verbal argument. As to what exactly was said, we do not know. The only eyewitness claimed she

saw the two men arguing, then returned moments later to find Eberhardt lying on the ground in

blood with several stab wounds. No weapons were found at the murder scene. The eyewitness told

authorities it was Appellant who committed the stabbing and provided a description of Appellant

and his vehicle. Shortly after, Appellant was stopped driving a vehicle that matched the provided

description and admitted to the stabbing. Upon being stopped by the police, and among other self-

incriminating statements, Appellant stated, “I did it because he broke into my house.” Appellant

did not have visible injuries, and the murder weapon and a pair of jean shorts were found in

Appellant’s vehicle. Further, those two items, the murder weapon and the jean shorts, contained

Eberhardt’s DNA.

Viewing the evidence in the light most favorable to the verdict, a rational fact finder could

have found Appellant guilty of murder beyond a reasonable doubt. Pursuant to Sections

19.02(b)(1) and 19.02(b)(2), the stabbing of Eberhardt with a knife was meant to either cause death

or serious bodily injury and constituted an act clearly dangerous to human life that caused death.

See TEX.PENAL CODE ANN. § 19.02(b)(1), (b)(2). The State argues the jury was free to reject

Appellant’s self-defense theory and did so implicitly by its verdict. We agree. See Saxton v. State,

804 S.W.2d 910, 914 (Tex.Crim.App. 1991)(a jury verdict of guilty is an implicit finding rejecting

the defendant’s self-defense theory). We find the evidence sufficient to support Appellant’s

conviction, and the jury’s rejection of self-defense.

Issue Three is overruled.

CERTIFICATION OF RIGHT TO APPEAL

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 We note that the trial court has certified Appellant’s right to appeal in this case, but the

amended certification does not bear Appellant’s signature indicating that he has been informed of

his rights to appeal and to file a pro se petition for discretionary review with the Texas Court of

Criminal Appeals. See TEX.R.APP.P. 25.2(d). We thus find that the certification is defective and

that neither Appellant’s attorney nor the trial court has corrected the defective certification.

To remedy this defect, the Court ORDERS Appellant’s attorney, pursuant to Rule 48.4, to

send Appellant a copy of this opinion and this Court’s judgment, to notify Appellant of his right

to file a pro se petition for discretionary review, and to inform Appellant of the applicable

deadlines. See TEX.R.APP.P. 48.4, 68. The Court further ORDERS Appellant’s attorney to comply

with all the requirements of Rule 48.4. TEX.R.APP.P. 48.4.

CONCLUSION

For these reasons, we affirm.

August 18, 2021
YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)

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