                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-15-00460-CR


JASON KYLE GEE                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR18318

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                         MEMORANDUM OPINION1

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      A jury convicted appellant Jason Kyle Gee of aggravated assault with a

deadly weapon. On appeal from that conviction, in one issue, he contends that

the evidence is insufficient because it does not disprove his claim that he acted in

justifiable self-defense. We conclude that the evidence is sufficient to support

the conviction, so we affirm the trial court’s judgment.

      1
       See Tex. R. App. P. 47.4.
                                 Background Facts2

      Appellant admitted at trial and concedes on appeal that he used a knife to

slash the throat of Clifton Skinner. The critical issue upon which this appeal turns

is whether the evidence supports the jury’s implicit rejection of appellant’s claim

that the law of self-defense justified this act.

      One day in March 2015, appellant and Jeseca Drury, who were dating

each other, visited the house of Bryon Nabors and Michelle Combs.                Drury

wanted to trade two power tools for illegal drugs, and Nabors called Skinner to

facilitate the trade. Skinner arrived at the house. According to Nabors, appellant

gave Skinner the power tools, and Skinner gave appellant methamphetamine.

      According to Combs, after Skinner left, appellant became upset. Appellant

believed that Skinner had “shorted” Drury on the agreed-upon amount of

methamphetamine.           Skinner    had       agreed   to   deliver   one   gram   of

methamphetamine but had given Drury only about half a gram.                    Nabors

attempted to contact Skinner again but was not able to immediately reach him.

Nabors observed that appellant “storm[ed] around” and “kept talking about” the

fact that Skinner had not delivered the promised amount of drugs.

      Later that night, appellant, Drury, Nabors, and Combs—all of whom had

been using methamphetamine that day—traveled together in Nabors’s truck and


      2
        The facts in the first part of this section are based largely on the testimony
of witnesses other than appellant. Appellant provided different and additional
details in his testimony, and we will discuss those details below.


                                            2
spotted Skinner and Jessica Puckett (Skinner’s girlfriend), who were riding

together in Puckett’s car. Both vehicles pulled over. Nabors got out of his truck

and approached Skinner. They spoke for a couple of minutes. According to

Nabors,      Skinner   conveyed    that   he   would   eventually   deliver   more

methamphetamine.

         When Nabors got back into the truck, he attempted to reassure appellant

that Skinner was “going to take care of the situation.” Drury testified that Nabors

told appellant that Skinner did not “have anything” at that time and that appellant

could “check back with him in a couple of hours.” But appellant became angrier,

jumped out of the truck, moved toward Puckett’s car with a knife in his hand,

yelled in that direction, and attempted to slash or stab a tire with the knife as

Skinner began to drive away.       Skinner testified, “[Appellant] went to make a

stabbing motion toward me or the car or something, and I mashed on the

accelerator.” According to Drury, when appellant returned to the truck, he said, “I

cannot believe I stabbed [Puckett’s] tire.”

         Skinner saw appellant’s attempt to slash the tire and became angry.

Knowing that appellant had a knife, he circled back toward Nabors’s truck,

stopped the car, got out of it, and approached appellant, who had returned to the

truck.    Skinner said to appellant, “You just fucked up, boy.”     Nabors heard

Skinner’s words and believed that Skinner was going to “whip [appellant’s] ass.”

         Appellant and Skinner began to fight. During the fight, appellant used the

knife to slash Skinner’s throat. The sequence of when appellant did so is in


                                          3
dispute. According to Skinner, when he approached appellant, appellant slashed

his throat, and Skinner then began to hit appellant with a car door in attempt to

hurt him and knock him off balance. Skinner testified, “[A]fter I felt the impact is

when I started slamming the door.” According to Drury and appellant, however,

Skinner slammed appellant with the door before appellant slashed Skinner’s

neck.

        Puckett moved Skinner back toward her car, and according to Puckett,

appellant “came at [her] with the knife.” After Puckett helped Skinner get in the

car, while he was severely bleeding in the front passenger’s seat and trying to

hold pressure against his neck with a shirt, she drove toward a hospital and

called 9-1-1.

        At the same time, appellant jumped into Nabors’s truck and told Nabors to

“get him out of [there].” He shouted at Nabors and Combs, telling them not to

say anything to anyone about what had occurred.             According to Nabors,

appellant said that Nabors and Combs “better not say a damn thing or [he would]

kill [them] both.” Nabors eventually pulled over, and appellant and Drury got out

of the truck. They hid near a bush and called appellant’s mother. Appellant

threw the knife away. Nabors and Combs returned home.

        Puckett and Skinner eventually arrived at a hospital.         Skinner had

emergency surgery to treat a lacerated jugular vein and an exposed trachea. In

one of Skinner’s pockets, the police found a small folding pocketknife; the police

did not recover any other weapons from Skinner, from the car he had been in, or


                                         4
from the scene of the crime. The police discovered Skinner’s fingerprint and his

blood on a door of Nabors’s truck. A police officer spoke with appellant after

arresting him. Appellant did not deny slashing Skinner’s throat or claim that

Skinner had used a weapon during the incident, but he stated that he had feared

for his life and that he was trying to get away before Skinner attacked him.

      A grand jury indicted appellant for aggravated assault; the indictment

alleged that the knife he had used qualified as a deadly weapon. Appellant

received appointed counsel, chose the jury to assess his punishment in the event

of his conviction, and pled not guilty.       At trial, he testified that when he

approached Puckett’s car, a window was down, and he asked Skinner “if he was

going to make it right.” According to appellant, at that point, Skinner became

angry, reached under his seat “for something,” and attempted to open his door.

Appellant initially did not let him. Skinner told appellant to “[s]tep back from [his]

fucking door,” and appellant then did so. Skinner got out of the car, but Puckett

began yelling at him, and he got back into the car and began to drive away. At

that point, appellant punched one of Puckett’s tires with one hand while holding

the knife with his other hand.3 He had pulled his knife out because he had

thought that Skinner had “pulled something from underneath his seat.”

      According to appellant, he was “really scared” when Skinner circled

Puckett’s car back toward him, got out of the car, and approached him.

      3
      Appellant told the jury that the witnesses who had testified that he had
stabbed or slashed at the tire with the knife were wrong.


                                          5
Appellant testified that he “thought [Skinner] had pulled” a weapon. He testified

that Skinner opened the door of the truck and repeatedly slammed it against him.

According to appellant, because he had “nowhere to go,” thought Skinner had a

weapon (although not knowing whether Skinner did), and feared for his life, he

slit Skinner’s throat.

      Appellant testified that he thought that Skinner had a weapon because he

“got in his car and came back.”       But appellant admitted that he never saw

Skinner with a weapon. Appellant also admitted that he had displayed a deadly

weapon (the knife) in an aggressive manner to Skinner before Skinner drove

away and then circled back toward him. Appellant denied that he had threatened

Puckett with the knife after slashing Skinner’s throat.

      The trial court’s charge to the jury on the issue of appellant’s guilt

contained language related to the law of self-defense and instructed the jury as

follows:

              [I]f you believe from the evidence beyond a reasonable doubt
      . . . that [appellant] did . . . intentionally, knowingly[,] or recklessly
      cause bodily injury to Clifton Skinner by cutting Clifton Skinner with a
      knife, and the defendant did then and there use or exhibit a deadly
      weapon . . . during the commission of said assault, then you will find
      the defendant guilty[,] . . . but [if] you further find from the evidence,
      or you have a reasonable doubt thereof, that . . . the defendant
      reasonably believed that from the words or conduct, or both, of
      Clifton Skinner, it reasonably appeared to the defendant, as viewed
      from his standpoint, 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 by Clifton
      Skinner, and that acting under such apprehension and reasonably
      believing that the use of deadly force on his part was immediately
      necessary to protect himself against Clifton Skinner’s use or


                                          6
      attempted use of unlawful deadly force, he cut Clifton Skinner, then
      you will find the Defendant not guilty . . . .

             ....

              If you find from the evidence beyond a reasonable doubt that
      . . . the defendant did not reasonably believe that he was in danger
      of death or serious bodily injury, or that the defendant . . . did not
      reasonably believe that the degree of force actually used by him was
      immediately necessary to protect himself against Clifton Skinner’s
      use or attempted use of unlawful deadly force, then you should find
      against the defendant on the issue of self-defense.

      After receiving the parties’ evidence and arguments on the issue of

appellant’s guilt, the jury deliberated for less than an hour and found him guilty.

The jury then received further evidence and arguments concerning his

punishment and assessed seventy-five years’ confinement.            The trial court

sentenced him accordingly, and he brought this appeal.

                              Evidentiary Sufficiency

      In his only issue, appellant contends that the evidence does not support

his conviction.     Specifically, he argues that the evidence is not sufficient to

support the jury’s implicit rejection of his claim that he acted in justifiable self-

defense.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979).        This standard gives full play to the



                                          7
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446,

448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We must

presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Murray, 457 S.W.3d at 448–49.

      A person commits aggravated assault with a deadly weapon if he

intentionally, knowingly, or recklessly causes bodily injury to another and uses or

exhibits a deadly weapon—here, a knife—during the commission of the assault.

See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2016), § 22.02(a)(2) (West

2011); see also id. § 1.07(a)(17)(B) (West Supp. 2016) (defining “deadly weapon”

as anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury).

      However, section 9.31(a) of the penal code provides that “a person is

justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor


                                          8
against the other’s use or attempted use of unlawful force.” Id. § 9.31(a) (West

2011).    Similarly, section 9.32(a) provides that a “person is justified in using

deadly force against another” if the person is justified in using force under section

9.31 and the person “reasonably believes the deadly force is immediately

necessary” to protect himself “against the other’s use or attempted use of

unlawful deadly force.”4 Id. § 9.32(a)(1), (2)(A) (West 2011). An actor’s belief

that the use of deadly force is immediately necessary is presumed to be

reasonable when the actor

          (1) knew or had reason to believe that the person against
      whom the deadly force was used:

                  (A) unlawfully and with force entered, or was
             attempting to enter unlawfully and with force, the actor's
             occupied habitation, vehicle, or place of business or
             employment;

                   (B) unlawfully and with force removed, or was
             attempting to remove unlawfully and with force, the
             actor from the actor’s habitation, vehicle, or place of
             business or employment; or

                   (C) was committing or attempting to commit an
             offense described by Subsection (a)(2)(B);

            (2) did not provoke the person against whom the force was
      used; and



      4
        Deadly force is “force that is intended or known by the actor to cause, or
in the manner of its use or intended use is capable of causing, death or serious
bodily injury.” Tex. Penal Code Ann. § 9.01(3) (West 2011). Appellant conceded
in the trial court and does not dispute on appeal that he used deadly force
against Skinner and must therefore comply with the requirements of section 9.32
for using deadly force in self-defense.


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            (3) was not otherwise engaged in criminal activity, other than a
      Class C misdemeanor that is a violation of a law or ordinance
      regulating traffic at the time the force was used.

Id. § 9.32(b)(1)–(3).

      A defendant has the burden of producing some evidence to support a

claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). After the defendant has introduced some evidence of a defense, the

State bears the burden of persuasion to disprove it. Id.; Saxton v. State, 804

S.W.2d 910, 913–14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285,

291 (Tex. App.—Fort Worth 2004, pet. ref’d). This burden does not require the

State to produce evidence disproving the defense; it requires only that the State

prove its case beyond a reasonable doubt. Dotson, 146 S.W.3d at 291. To

determine the sufficiency of the evidence involving a self-defense claim, we ask

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 charged offense beyond a reasonable doubt and also could have found

against the appellant on the self-defense issue beyond a reasonable doubt. Id.

A guilty verdict is an implicit finding rejecting self-defense. Saxton, 804 S.W.2d

at 914.

      The statements of the defendant and his witnesses do not conclusively

prove a claim of self-defense. Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d). Rather, one product of the jury’s exclusive

role of assessing witnesses’ credibility is that the jury “is free to believe or


                                       10
disbelieve the testimony of any witness, to reconcile conflicts in the testimony,

and to accept or reject any or all of the evidence of either side.” 5 Bottenfield v.

State, 77 S.W.3d 349, 355 (Tex. App.—Fort Worth 2002, pet. ref’d), cert. denied,

539 U.S. 916 (2003).

      On appeal, appellant predicates a large part of his argument on an

assertion that under section 9.32(b), he was entitled to the presumption that he

reasonably believed that deadly force was immediately necessary.          See Tex.

Penal Code Ann. § 9.32(b). He contends that he was entitled to the presumption

because at the time he slashed Skinner’s neck, Skinner was “either attempting to

enter the truck to get [him] or extract [him] from” the truck and because he did not

provoke the altercation. See id. § 9.32(b)(1)(A)–(B), (2).

      Even assuming that the evidence proves those requirements for applying

the presumption, we cannot agree that appellant is entitled to the presumption

because viewing the evidence in the light most favorable to the verdict, the jury

could have rationally found that when appellant slashed Skinner’s throat, he was

engaged in criminal activity. See id. § 9.32(b)(3). Specifically, the evidence,

including   appellant’s   own   testimony,   showed     that   he   was   high   on

methamphetamine, an illegal drug, when the altercation with Skinner occurred

and that the origin of the dispute concerned appellant’s attempt to obtain more


      5
        Thus, the jury was free to reject all or part of appellant’s testimony,
including that he believed Skinner had a weapon and that he feared for his life
when he cut Skinner’s neck.


                                        11
methamphetamine. See Tex. Health & Safety Code Ann. § 481.102(6) (West

2010). Appellant testified that hours before the altercation, he sent a message to

Puckett on Facebook to see whether Skinner was going to “make it right,”

meaning deliver more methamphetamine.              And just before the altercation,

appellant got out of Nabors’s truck and approached Skinner “to see if he was

going to make it right.” Appellant testified, “I just asked him . . . if he was going to

make it right. If not, if maybe he could . . . give some money back instead of

drugs.”

      Because appellant’s dispute with Skinner that led to the slashing of

Skinner’s throat focused on appellant’s attempt to obtain methamphetamine, the

jury could have rationally found that he was engaged in criminal activity and was

not entitled to the statutory presumption.6           See Tex. Penal Code Ann.

§ 9.32(b)(3); see also id. § 15.01(a) (West 2011); Tex. Health & Safety Code

Ann. §§ 481.108, .115(a) (West 2010); Larrinaga v. State, No. 02-14-00199-CR,

2015 WL 4730710, at *2–3 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d)

(mem. op., not designated for publication) (holding that a trial court did not err by

refusing to include a jury-charge instruction concerning the statutory presumption

because the evidence showed that the defendant was a felon who was illegally

possessing a firearm when he allegedly used self-defense); Barrios v. State, 389

      6
       Alternatively, we also note that Drury, appellant’s then-girlfriend, testified
that she had been told that the knife that appellant used to slash Skinner’s neck
was illegal, that she had previously told him to stop carrying it, and that she
believed he had stopped carrying it.


                                          12
S.W.3d 382, 393–94 (Tex. App.—Texarkana 2012, pet. ref’d) (holding that the

presumption could not apply because the defendant was an illegal immigrant

who was possessing a firearm in violation of federal law).

      With no need to apply the statutory presumption, the jury could have

rationally rejected appellant’s self-defense claim by finding that he could not have

reasonably believed that deadly force was immediately necessary to prevent

Skinner’s use or attempted use of deadly force. See Tex. Penal Code Ann.

§ 9.32(a)(2)(A); see also Barrios, 389 S.W.3d at 393 (“When the accused is

engaged in other criminal activity, the statute does not disqualify the accused

from defending his or her use of force, it simply removes the presumption that his

or her use of force was reasonable—a significant difference.”). Combs testified

that she never saw Skinner brandish any weapons and never heard Skinner

threaten deadly force. When the State asked Combs whether Skinner appeared

to be trying to kill appellant, she replied, “All I seen was them two fighting.”

Combs explained that when appellant got back into Nabors’s truck after attacking

Skinner, he did not say that Skinner had tried to kill him.

      Nabors testified that Skinner never displayed any weapon and did not do

anything toward appellant that threatened deadly force. Puckett testified that she

never saw Skinner with a gun on the night that appellant slashed his throat and

that while Skinner had a pocket knife, he never took it out of his pocket. Puckett

also opined that appellant provoked the altercation by attempting to stab her tire.




                                         13
She stated that she never saw Skinner use or threaten deadly force against

appellant.

      Skinner testified that he never threatened to kill appellant and that he

never used his knife. He also testified that he never pretended to have a gun, did

not have a gun, and never threatened or used deadly force against appellant.

Finally, he testified that he did not slam appellant with the door of Nabors’s truck

until appellant had already cut his throat.

      Drury testified that she never saw Skinner possess a weapon on the night

appellant slashed his throat. She admitted that Skinner never threatened deadly

force against appellant that night.

      Based on all of the evidence summarized above and the remaining

evidence in the record, and even considering appellant’s testimony that Skinner

had slammed him with the door before he slashed Skinner’s neck and that he

subjectively feared for his life, the jury could have rationally found that Skinner’s

words and acts could not have produced any reasonable belief by appellant of an

immediate threat of unlawful deadly force against him. See Tex. Penal Code

Ann. §§ 9.31(a)(2), .32(b)(2). Viewing the evidence in the light most favorable to

the verdict and deferring to the jury’s role to draw inferences from the evidence

and resolve conflicts from it, we conclude that the jury could have rationally found

the essential elements of aggravated assault beyond a reasonable doubt and

also could have found against appellant on self-defense beyond a reasonable




                                         14
doubt. See id. §§ 9.31, .32, 22.02(a)(2); Saxton, 804 S.W.2d at 914; Dotson, 146

S.W.3d at 291. We overrule appellant’s only issue.

                                 Conclusion

      Having overruled appellant’s only issue, we affirm the trial court’s

judgment.


                                                 /s/ Terrie Livingston

                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER AND MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 6, 2017




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