Freeman Russell v. State of Texas

11th Court of Appeals 11th Court of Appeals Eastland, Texas Opinion Freeman Russell Appellant Vs. No. 11-01-00113-CR B Appeal from Dallas County State of Texas Appellee The jury convicted appellant of aggravated assault, found the enhancement paragraphs to be true, and assessed punishment at 25 years confinement. We affirm. In his first and second issues on appeal, appellant argues that the evidence is legally and factually insufficient to support his conviction. Appellant specifically argues that the evidence is legally and factually insufficient to support his conviction because the State failed to disprove that he was acting in self-defense. The State has the burden of persuasion in disproving evidence of self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991). The State is not required to affirmatively produce evidence which refutes the self-defense claim; rather, the State has the burden to prove its case beyond a reasonable doubt. Saxton v. State, supra. In resolving the legal sufficiency of the evidence issue, we determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also could have found against appellant on the self‑defense issue beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Saxton v. State, supra . Self-defense is subject to a factual sufficiency challenge and review under the Clewis[1] standard. Shaw v. State, 995 S.W.2d 867, 868 (Tex.App. - Waco 1999, no pet=n). In our review for factual sufficiency of the evidence, we consider all the evidence in the record related to the contested issue. Shaw v. State, supra. We reverse the conviction only if the jury=s rejection of the defendant=s evidence of self-defense is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, supra; Shaw v. State, supra. Self-defense is an issue of fact to be determined by the jury. Saxton v. State, supra. A jury verdict of guilty is an implicit finding rejecting the defendant=s self-defense theory. Saxton v. State, supra. Nicole Lashunn Whitman, the victim, testified that, at the time of the offense, appellant was her boyfriend and that she had known appellant for eight or nine months. On March 29, 2000, the victim was volunteering at a hospital, and appellant called her there numerous times. Appellant and the victim agreed to meet later at the victim=s apartment. The victim stated that she got home around 10:45 p.m. and that appellant was not there. The victim Apaged@ appellant upon arriving at her apartment. The victim then laid down on the couch because she was not feeling well. After waiting a while for appellant, the victim left her apartment. The victim testified that she received a call on her cellular phone from appellant who was calling the victim from inside the victim=s apartment. The victim returned to her apartment, and appellant was there. Appellant had been hiding in her apartment to see if the victim called any other men. The victim stated that appellant was very jealous. The victim testified that she and appellant left her apartment and that, when they returned, the victim=s pager Awent off.@ Appellant asked the victim who was paging her, and the victim responded that it was Anone of [his] business.@ Appellant then told the victim, AI=m not going to be your whore a - s n - - - - r. You=re not going to play me like this.@ The victim testified that appellant began arguing with her and became very loud. Appellant walked toward the victim as the argument escalated. The victim stated that she had never seen appellant that upset and that she was becoming scared. The victim saw appellant=s gun sitting on the couch. The victim testified that appellant Acame and stood over@ her and that she pleaded with him to leave. Appellant told the victim, ANo. I got to teach you a lesson.@ The victim said that she went into the kitchen and retrieved a steak knife. The victim testified that, when she returned, appellant was holding the gun in his hand. The victim sat down on the couch with the steak knife at her side. Appellant came toward the victim with the gun in his hand, and he continued to yell at her. The victim stood up and told appellant to leave. The victim said that she Agot real upset from the curse words he was calling [her] and [she] swung the knife.@ The victim then heard the Agunshot pop.@ The victim testified that she had been shot in the stomach and that she fell back on the couch. Appellant said that he Adidn=t mean to@ and that he was Asorry.@ The victim asked appellant to call 911, but he said that he was going to leave. The victim pleaded with appellant, and he called 911. Appellant told the 911 operator that the victim had been stabbed, and then he hung up. Appellant called back and told the operator that the victim had been shot. The victim stated that, in order to persuade appellant to call 911, she agreed to tell the police that a former boyfriend had shot her and that appellant had found her. When the police arrived, the victim told them that ATom Jessup@ had shot her. The paramedics arrived and transported the victim to the hospital where she underwent surgery to repair damage to her colon and intestines from the gunshot. Officer Dennis Johnson with the Irving Police Department testified that he was dispatched to the scene about 1:00 a.m. Officer Johnson and Officer Gilmore approached the apartment and could hear a woman screaming for help. The officers knocked on the door with a flashlight. They were going to Akick the door in@ when appellant answered. The victim was lying on the couch bleeding from her stomach. Officer Gilmore went to the victim, and Officer Johnson asked appellant some questions. Appellant told Officer Johnson that the victim paged him to come over because she had been shot. Appellant said that he was at another girl=s apartment in the same complex, but he could not give Officer Johnson an apartment number. Appellant did give Officer Johnson a phone number for the girl, and Officer Johnson received an address from dispatch. Officer Johnson testified that he thought it was unusual that appellant said that he drove to the victim=s apartment although appellant was only a couple of buildings away when he received the page. Officer Johnson also testified that he thought it was strange that appellant=s vehicle was backed into a parking space with an anti-theft device on the steering wheel. Appellant presented testimony that the victim had made a previous threat with a steak knife. Chamiere Jackson testified that she was at her sister=s apartment when the victim came in and began hitting her and pulling her hair. The victim told Jackson that no one else was going to be involved with the victim=s boyfriend at that time, Gabriel Gardner. Jackson said that the victim stopped hitting her and then went in the kitchen and got a steak knife. Jackson went in the bathroom and locked the door. Jackson stated that the victim scratched on the door and told Jackson that she would Agut [her] like a fish.@ The victim eventually left the apartment. The following day, the victim returned to the apartment and demanded that Gardner come outside. The victim and Gardner began arguing, and the victim pulled out a knife and said that she would Akill all of [them].@ The victim went toward Jackson with the knife, and Jackson=s sister threw a pan of hot grease on the victim. When security arrived, the victim said that she had been attacked by the others at the apartment. The record shows that Jackson=s sister, Gardner, and Gardner=s brother were charged with assaulting the victim. Appellant also presented testimony that the Dallas County District Attorney=s Office dismissed the charges against Gardner=s brother because of problems with the victim=s credibility. Appellant contends that he acted in self-defense because the victim swung the steak knife at him. A person is justified in using force against another Awhen 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.@ TEX. PENAL CODE ANN. ' 9.31(a) (Vernon Supp. 2002). A person is justified in using deadly force: (1) if he would be justified in using force under Section 9.31; (2) if a reasonable person in the actor=s situation would not have retreated; and (3) when and to the degree necessary he reasonably believes deadly force is necessary to protect himself against the other=s use or attempted use of unlawful force. TEX. PENAL CODE ANN. ' 9.32(a) (Vernon Supp. 2002). The record shows that appellant began arguing with the victim after she received a page. Appellant cursed at the victim and came and stood over her. The victim pleaded with appellant to leave, but appellant told the victim he needed to Ateach [her] a lesson.@ The jury heard evidence that appellant came toward the victim with a gun in his hand and cursed at her. The victim then swung the knife at appellant, and he shot her. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 and 1981); Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App. 2000), cert. den=d, 532 U.S. 944 (2001). After viewing all the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also could have found against appellant on the self‑defense issue beyond a reasonable doubt. Viewing all of the evidence, we do not find that the jury=s verdict of guilty and its rejection of appellant=s claim of self-defense are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant=s first and second issues on appeal are overruled. In his third issue on appeal, appellant argues that the trial court erred in admitting evidence of extraneous offenses. On rebuttal, the State presented evidence from appellant=s former girlfriend that appellant sexually assaulted her after they were no longer dating. The State also introduced evidence that appellant had a 1991 conviction for assaulting a teacher. Generally, a defendant's prior crimes or bad acts are inadmissible to prove that he has a bad character or a propensity to commit the offense charged. TEX.R.EVID. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App.1991). Such evidence, however, may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or lack of mistake or accident. Rule 404(b); Montgomery v. State, supra at 387. An extraneous offense may be used to rebut a defensive theory, such as self‑defense, even though this purpose is not mentioned in Rule 404(b). Halliburton v. State, 528 S.W.2d 216, 219 (Tex.Cr.App.1975); Robinson v. State, 844 S.W.2d 925 (Tex.App. ‑ Houston [1st Dist.] 1992, no pet=n). When the accused claims self‑defense or accident, the State, in order to show the accused's intent, may show other violent acts where the accused was an aggressor. Halliburton v. State, supra at 218; Booker v. State, 929 S.W.2d 57, 63 (Tex.App. - Beaumont 1996, pet=n ref=d); Robinson v. State, supra. Both the teacher assault and the prior sexual assault were admissible to show intent in the present case and to rebut appellant=s theory of self-defense. The trial court did not abuse its discretion in admitting the prior bad acts by appellant. Appellant also claims that the prior sexual assault should have been excluded pursuant to TEX.R.EVID. 403 because the probative value was outweighed by the danger of unfair prejudice. We must uphold the trial court=s decision on admitting the evidence absent an abuse of discretion. Montgomery v. State, supra. There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155 (Tex.Cr.App.1997). Appellant has not shown that the trial court abused its discretion in admitting the evidence of appellant=s prior sexual assault over his objection that the probative value was substantially outweighed by the danger of unfair prejudice. Appellant=s third issue on appeal is overruled. The judgment of the trial court is affirmed. TERRY McCALL JUSTICE October 10, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).