Jay Everett Scurlock v. State

Affirmed and Memorandum Opinion filed April 28, 2009 Affirmed and Memorandum Opinion filed April 28, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00010-CR ____________ JAY EVERETT SCURLOCK, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1055711 M E M O R A N D U M   O P I N I O N Appellant Jay Everett Scurlock appeals his conviction for murder, challenging the legal and factual sufficiency of the evidence to support the jury=s implied rejection of his claim of self-defense. We affirm. I. Factual and Procedural Background Appellant owned a residence in a town home community which he leased to Brenda Williams. In December 2005, the town home was sold in a tax auction. The new owner permitted Brenda to remain in the residence. After the sale, appellant received notice to vacate the premises by February 3, 2006. On January 29, 2006, appellant came to Brenda=s residence to remove appliances, including a washer, dryer, refrigerator, and stove. Appellant believed he had authority to remove the appliances from the residence. Because Brenda questioned appellant=s right to remove the appliances, she threatened to call the police. Brenda called the police and her brother, Alvin Williams. Alvin arrived at Brenda=s residence shortly thereafter. Appellant and Alvin argued, and appellant indicated he would wait outside for the police to arrive. Alvin followed appellant outside. Appellant walked down a stairwell to the parking lot. Appellant claimed Alvin threw a cell phone at him; however, Alvin claimed to have dropped his phone down the stairwell. Appellant tossed the cell phone over the building. Brenda=s and Alvin=s seventeen-year-old brother, Tony Smith, the complainant, had plans to meet with Alvin that morning. Tony arrived at Brenda=s residence in his vehicle and parked in the parking lot. Appellant claims to have exchanged words with Tony, and as a result of that exchange, Tony threatened appellant; however, other witnesses testified that Tony and appellant did not engage in a confrontation. At Alvin=s request, Tony left to retrieve Alvin=s cell phone. Appellant attempted to leave in his vehicle. Appellant and other witnesses dispute whether Alvin=s vehicle blocked appellant=s exit; however, evidence within the record indicates Alvin=s vehicle may have been partially blocking appellant=s exit. Appellant asked Alvin to move the vehicle, and he did not. Alvin stood behind appellant=s vehicle in an attempt to either block appellant=s departure or to prevent appellant from striking his own vehicle. Appellant put his vehicle in reverse, struck Alvin, and knocked him to the ground. Appellant claimed, at trial, to have attempted Ato push Alvin back@ with his vehicle so that appellant could leave. Alvin=s body was beneath appellant=s vehicle and appellant continued to move his vehicle backward. Brenda saw Alvin beneath appellant=s moving vehicle and yelled for appellant to stop. She rapped on the driver=s side window with her hand. Meanwhile, Tony returned and saw Alvin beneath appellant=s moving vehicle. Tony yelled for appellant to stop the vehicle and struck appellant=s window with his hand, but appellant continued to back-up. Tony then retrieved a tire iron from his own vehicle and struck appellant=s windshield. Appellant claims Tony struck the windshield multiple times with the tire iron, but other witnesses claimed he struck the windshield just once. Appellant exited his vehicle and shot Tony with a handgun.[1] Tony died at the scene. Some witnesses claim that appellant then pointed the gun at Alvin, who ran away. After the shooting, appellant waited for the police to arrive. Police officers arrived on the scene in response to calls involving a shooting in progress. In their investigation, the officers spoke with the parties involved and several residents of the community who saw some of the events. The medical examiner who performed the autopsy determined that Tony died from a single gunshot that entered his front right chest at an angle and remained lodged in his left upper back. The medical examiner confirmed that, based on both the angle the bullet entered Tony=s body and the direction the bullet traveled within his body, Tony could not have been standing face to face with appellant when he was shot; rather, Tony was facing at a ninety-degree angle away from the shooter. Appellant was charged with murder. He pleaded Anot guilty.@ At the jury trial that followed, appellant asserted self-defense. The jury found appellant guilty as charged, and, after finding that appellant had acted under the influence of sudden passion, sentenced him to seven years= incarceration and imposed a $10,000 fine. II. Legal and Factual Sufficiency of the Evidence Appellant acknowledges, AThere is no dispute that appellant caused the death as alleged in the indictment.@ However, in two issues, appellant challenges the legal and factual sufficiency of the evidence to support the jury=s implied rejection of his claim of self-defense. A person commits murder if the person 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 the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1) & (2) (Vernon 2003). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against another=s use or attempted use of unlawful force. Tex. Penal Code Ann. ' 9.31(a) (Vernon Supp. 2008). Use of deadly force against another is justified (1) if the actor would be justified in using force against another 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 the actor reasonably believes the deadly force is immediately necessary (a) to protect himself against the other=s use or attempted use of unlawful deadly force, or (b) to prevent another=s imminent commission of, among other things, murder, robbery, or aggravated robbery. Tex. Penal Code Ann. ' 9.32(a) (Vernon Supp. 2008). An accused bears the burden of producing some evidence in support of a claim of self-defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Once the accused produces such evidence, the burden falls upon the State to disprove the raised defense. Id. at 913B14. The State=s 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. Id. at 913. The issue of self-defense is a fact issue for the jury and a verdict of Aguilty@ is an implicit finding rejecting an accused=s self-defense theory. Id. at 913B14. In a legal-sufficiency review, we view all the evidence in a light most favorable to the verdict and determine whether a trier of fact could have found each element of the offense beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). When reviewing a legal-sufficiency challenge on the issue of self-defense, a reviewing court views the evidence in the light most favorable to the verdict to see if any rational trier of fact could have found (1) the essential elements of murder beyond a reasonable doubt, and (2) against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). When evaluating a challenge to the factual sufficiency of the evidence supporting the fact finder=s rejection of a claim of self-defense, we review all of the evidence in a neutral light. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). We determine whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Id. at 417. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Appellant complains that undisputed evidence establishes that he was under attack from unlawful deadly force because a crime scene investigator testified the tire iron was a deadly weapon. He points to photographic evidence as supporting his claim that Tony struck the windshield multiple times with enough force that glass fell inside the vehicle. Appellant testified that glass from the windshield fell inside the car as Tony repeatedly struck the windshield. Appellant argues that he was attempting to leave the parking lot, and Tony thwarted his retreat. Appellant recounted how, in an effort to escape, he opened the door and Tony, positioned at the vehicle=s front quarter panel, turned from hitting the windshield and moved toward appellant with the tire iron raised. Appellant drew the gun and fired. Appellant described how Tony fell and the tire iron Awent through the air@ and fell. Three residents of the town home community witnessed some of the events. These witnesses did not know the parties involved. Each described hearing a commotion in the parking lot and each described seeing appellant reverse his vehicle, seeing Alvin beneath appellant=s moving vehicle, and seeing Tony attempt to stop appellant by yelling and striking the car with his fist before retrieving a tire iron from his own vehicle. One witness, Brenda Burnett described how, after hitting appellant=s windshield with a tire iron, Tony backed away and dropped the tire iron. She went inside her home when she heard that appellant had brandished a gun. Yolanda Dade, another witness, saw Tony hit the windshield once with a tire iron. As appellant Araised up out@ of the vehicle, she saw Tony move back. She testified that Tony did not raise the tire iron against appellant at this point. She testified Tony was backing up when he was shot; his body turned and he hit the ground face first. Finally, Ebony Burnett described how, after hitting appellant=s windshield with the tire iron, Tony dropped the tire iron and tried to run. She testified that Tony did not swing the tire iron at appellant after appellant got out of the vehicle. She confirmed the men were not standing face to face, but that Tony=s body was turned as if he were about to run, trying to leave before appellant shot him. On cross-examination, Ebony described how Tony already had turned his body and attempted to run away when he was shot because he fell face first. In reviewing the evidence in the light most favorable to the verdict, we cannot conclude the jury was irrational in rejecting appellant=s self-defense claim and convicting appellant of murder. See Saxton, 804 S.W.2d at 914. Although appellant testified that he feared for his life when Tony repeatedly struck the windshield, other witnesses= testimony contradicted appellant=s account, indicating that Tony forcefully struck the windshield a single time; the photographs appear to be consistent with the witnesses= testimony. An appellant=s testimony alone will not conclusively prove self-defense as a matter of law. See Denman v. State, 193 S.W.3d 129, 133 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d). Moreover, testimony from Ebony Burnett, Brenda Burnett, and Yolanda Dade, the three witnesses who did not know the parties involved, indicates that Tony did not raise the tire iron against appellant, but rather dropped the tire iron and was attempting to move away from the vehicle when appellant got out of the vehicle. See, e.g., Lee v. State, 259 S.W.3d 785, 791 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d) (involving a sufficiency challenge based on whether a complainant=s back was turned away). The medical examiner=s testimony and autopsy report support these witnesses= accounts that Tony was positioned at an angle and was not face-to-face with appellant, nor was he shot in the back. Although appellant argues that photographic evidence shows the tire iron was positioned near Tony=s body, the tire iron=s resting place, to the right of Tony=s body as shown in photographs, was consistent with eyewitness testimony that Tony dropped the tire iron and attempted to turn and move away as he was shot. See id. at 792 (providing that physical evidence was consistent with eyewitness testimony). The tire iron=s resting place, to the right of Tony=s body, also was consistent with the medical examiner=s conclusion that appellant was turned at an angle when he was shot through his upper right chest. A determination of the credibility of the defense evidence is within the sole province of the jury, who is free to accept or reject it. See Saxton, 804 S.W.2d at 914. In the face of conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. See Curry, 30 S.W.3d at 406. By finding appellant guilty, the jury implicitly rejected appellant=s self-defense theory and necessarily chose not to believe appellant=s testimony in support of it. See Saxton, 804 S.W.2d at 914. The jury rationally could have believed the testimony of the three eyewitnesses who stated that Tony did not raise the tire iron against appellant and attempted to move away, while, at the same time, disbelieving appellant=s testimony of Tony=s attack on him. See id.; Denman, 193 S.W.3d at 133. In sum, the evidence shows a rational trier of fact could have found that appellant either did not have a reasonable belief that deadly force was immediately necessary to protect himself from another=s use of deadly force or that a reasonable person in appellant=s position would have retreated. See Tex. Penal Code Ann. '' 9.31, 9.32. Under the applicable standard, we hold that the evidence is legally sufficient to prove murder beyond a reasonable doubt because a rational jury could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; Denman, 193 S.W.3d at133 (providing that appellant=s testimony of self-defense is not enough to render evidence insufficient). We overrule appellant=s first issue. By its verdict, the jury believed appellant was not justified in using deadly force against Tony and implicitly rejected appellant=s claim of self-defense. See Zuliani, 97 S.W.3d at 594. As the sole judge of credibility, the jury could have chosen to believe the testimony of the neutral witnesses who relayed facts that appellant was not responding to an immediate threat once Tony dropped the tire iron and attempted to move away. See Lee, 259 S.W.3d at 793 (determining that eyewitness evidence established that appellant did not respond to immediate threat). Viewing the evidence in a neutral light, we are not able to say with some objective basis in the record that appellant=s conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. See Watson, 204 S.W.3d at 417; Lee, 259 S.W.3d at 792B93. We hold that the evidence is factually sufficient to support the jury=s rejection of appellant=s self-defense claim. See Watson, 204 S.W.3d at 417; Lee, 259 S.W.3d at 792B93. Accordingly, we overrule appellant=s second issue. The judgment of the trial court is affirmed. /s/ Kem T. Frost Justice Panel consists of Chief Justice Hedges, and Justices Yates and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Evidence in the record suggests that appellant was licensed to carry the handgun.