                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00144-CR
        ______________________________


     CLARENCE LODELL PIERCE, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 5th Judicial District Court
               Bowie County, Texas
           Trial Court No. 07F0422-005




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                            MEMORANDUM OPINION

            There is no doubt that Clarence Lodell Pierce shot and killed Kevin Haynes. He admitted

it. The sole question on appeal is whether the evidence is factually sufficient to support Pierce’s

murder conviction1 on the issue of self-defense. We affirm the judgment, because we find the

evidence sufficient.

            The evidence shows that Haynes entered Pierce’s home, confronting him over a venomous

verbal conflict between the two men’s girlfriends: Roslyn, who had once been Pierce’s girlfriend,

but was now Haynes’ girlfriend, and Bobbie, Pierce’s current girlfriend. At the time, those

individuals and several others were all in Pierce’s home playing cards. The evidence shows that

Roslyn left and went to complain to Haynes about being mistreated. Haynes came into the house

cursing and posturing, demanding that Pierce control his current girlfriend’s mouth, and accusing

Pierce at one point of hitting Roslyn. Pierce testified that he was in a back room when he heard

Haynes come in demanding to talk to him, that he anticipated trouble, and that he retrieved his

pistol and put it in his pocket. There was evidence that Haynes had his hand in his jacket and that

Pierce asked Haynes to leave. However, there is also evidence that, at the time of the shooting,

Haynes was outside the home, had not produced a weapon, and had made no threatening gestures




1
    In a trial to the court, Pierce was convicted and sentenced to twenty-five years’ imprisonment.


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toward Pierce.2

        In conducting a factual sufficiency review, we consider the evidence in a neutral light.

Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). We may find evidence

factually insufficient if (1) the evidence supporting the conviction is ―too weak‖ to support the

fact-finder’s verdict, or (2) considering conflicting evidence, the fact-finder’s verdict is against the

great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex.

Crim. App. 2009). In so doing, we may find the evidence insufficient when necessary to prevent

manifest injustice. Id. Although we give less deference to the verdict in a factual sufficiency

review, we will not override the verdict simply because we disagree with it. Id. Both legal and

factual sufficiency are measured by the elements of the offense as defined by a hypothetically-

correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti

v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

        In raising the justification of self-defense, a defendant bears the burden of production,

which requires the production of some evidence that supports the particular justification. Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex.

Crim. App. 1991). Once the defendant produces such evidence, the State then bears the burden of

persuasion to disprove the raised defense beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594;

Saxton, 804 S.W.2d at 913–14. The burden of persuasion does not require the production of

2
 Section 9.31 of the Texas Penal Code sets out the statutory definition of self-defense. The statute was amended in
2007. Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1,§ 2, 2007 Tex. Gen. Laws 1. The later version does not apply to
this prosecution, as the offense occurred in February 2007, before the effective date of the amendment.

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evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that

the defendant did not act in self-defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at

913–14; Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.).

       Thus, in a factual-sufficiency review of the rejection of a self-defense claim, we view ―all

of the evidence in a neutral light and [ask] whether the State’s evidence taken alone is too weak to

support the finding and whether the proof of guilt, although adequate if taken alone, is against the

great weight and preponderance of the evidence.‖ Zuliani, 97 S.W.3d at 595. A verdict of guilt

results in an implicit finding against the defensive theory. Id. at 594; Saxton, 804 S.W.2d at 914.

Loun v. State, 273 S.W.3d 406, 410 (Tex. App.—Texarkana 2008, no pet.).

       In our review of the evidence for sufficiency, we examine all of the evidence under the

standards set out above, and then further determine whether any rational trier of fact could have

found, beyond a reasonable doubt, for the State on the essential elements of the offense and on the

self-defense issue. Saxton, 804 S.W.2d at 914; Walker v. State, 291 S.W.3d 114, 117–18 (Tex.

App.—Texarkana 2009, no pet.).

       In this case, there is evidence from three witnesses that would support a conclusion by the

fact-finder that Pierce acted in self defense when he shot Haynes—that Pierce could believe, due to

Haynes’ words and physical actions that Haynes was about to pull a gun out of his jacket and

attack Pierce. There is also evidence from one witness that could support a conclusion that

Haynes was not out of control, that he did not threaten Pierce, and that he did not either orally or



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physically indicate that he was armed. That evidence supports a conclusion that Pierce was not

acting in self defense.

       Our review is not based on the number of witnesses provided by one side or the other.

Impossibility is not shown, and counsel exposed possible gaps in credibility for each witness. In

such a situation, the fact-finder has both the duty and responsibility of sorting the evidence to reach

a decision. Even if contradictory witness testimony may be compelling, the fact-finder is the sole

judge of what weight to give to such testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We should afford ―almost complete deference to a jury’s decision when that

decision is based upon an evaluation of credibility.‖ Id. (citing Marshall v. State, 210 S.W.3d

618, 625 (Tex. Crim. App. 2006)). Although there is testimony that could support a self-defense

finding, it is not so strong, and the State’s evidence to the contrary so weak, as to permit us to

second-guess the conclusion reached by the fact-finder.          The evidence is both legally and

factually sufficient to support the verdict, and the fact-finder could have found against Pierce on

his self-defense claim beyond a reasonable doubt.

       We affirm the judgment.


                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:           June 14, 2010
Date Decided:             July 7, 2010

Do Not Publish


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