Opinion issued June 19, 2014




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-13-00630-CR
                          ———————————
                  DARIUS JAMARR GRAVES, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 263rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1334322


                        MEMORANDUM OPINION

     A jury found Appellant, Darius Jamarr Graves, guilty of aggravated assault 1

and assessed punishment at 40 year’s confinement.      In one issue on appeal,


1
     See TEX. PENAL CODE ANN. § 22.01 (Vernon Supp. 2013), § 22.02 (Vernon
     2011).
Appellant argues the evidence is insufficient to establish his guilt because the State

failed to disprove his claim he was acting in self-defense.

      We affirm.

                                    Background

      Appellant was with his girlfriend at an apartment complex in Houston,

Texas on the night of January 19, 2012.         He and his girlfriend got into an

argument. At one point, Appellant shoved her away by pushing her face. She

slapped him, and Appellant pushed her down, pinning her to the ground. Lonnie

Jordan was in the apartment complex at the time and saw the altercation. Jordan

told Appellant to “chill out.” Appellant told Jordan to “get out of his business.”

Jordan then told Appellant he would not treat a man like that.

      Appellant took Jordan’s statement as a challenge and asked him why he was

talking like that. Jordan then took a “fighting stance.” Appellant made a flinching

motion towards Jordan, and Jordan swung at Appellant.             Appellant dodged

Jordan’s fist. He then punched Jordan in the head, knocking Jordan against the

wall. He punched Jordan again in the jaw, knocking him to the ground. Appellant

saw Jordan lying on the ground with a pool of blood forming around his head.

Appellant then kicked Jordan with enough force to break Appellant’s toe.

Appellant then fled. Appellant later explained to a police officer that he kicked

Jordan because he was in a rage.



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      Appellant was 29 years old at the time of the incident. He had training as a

boxer and had competed in amateur boxing fights. Jordan was 47 at the time of the

incident. His injuries rendered him unconscious. He suffered damage to his brain

and had to learn to speak again. He is now confined to a wheelchair.

                           Sufficiency of the Evidence

      In his sole issue on appeal, Appellant argues the evidence is insufficient to

establish his guilt because the State failed to disprove his claim that he was acting

in self-defense.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071



                                         3
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778.         Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty




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beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      Appellant does not dispute that the State presented sufficient evidence of the

elements of aggravated assault. Instead, Appellant’s argument focuses on whether

the State sufficiently disproved that Appellant was acting in self-defense. “[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 against

the other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN.

§ 9.31(a) (Vernon 2011).

      Critical to our inquiry, self-defense is only available “to the degree” the use

of force “is immediately necessary.” Id. In other words, self-defense is available

when “the amount of force actually used was permitted by the circumstances.”

Alonzo v. State, 353 S.W.3d 778, 783 (Tex. Crim. App. 2011); see also Kelley v.

State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.) (holding amount of

force must be in proportion to force encountered).

      Here, Jordan was talking to Appellant, trying to get him to stop his

aggression against Appellant’s girlfriend. Jordan then suggested Appellant would

not treat a man that way. By Appellant’s own admission, Appellant acknowledged




                                         5
this statement as a challenge and asked Jordan why he was talking like that.

Jordan then took a “fighting stance.”

      Relying on his boxing training, Appellant flinched towards Jordan to

provoke a response, dodged Jordan’s sole swing, and punched Jordan hard enough

to knock him into the wall. Appellant then hit Jordan with an upper-cut, hitting

him in the jaw. Jordan fell to the ground and a pool of blood began to form around

his head. After seeing this, Appellant kicked Jordan in the torso with enough force

to break Appellant’s toe. Appellant acknowledged the only reason for this kick

was because he was in a rage.

      Based on this evidence, the jury could have reasonably determined that

Jordan was only inviting Appellant to fight him and was not otherwise an

immediate threat. The jury could have also reasonably determined that the degree

of force Appellant used in hitting Jordan was greater than the degree necessary to

defend himself. Finally, the jury could have reasonably determined that Jordan

was not a threat to Appellant when he lying motionless on the ground with blood

coming out of his head and, as a result, no amount of force was reasonably

necessary for Appellant to defend himself.       Accordingly, there is sufficient

evidence in the record for the jury to have determined that Appellant was not

acting in self-defense.

      We overrule Appellant’s sole issue.



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                                   Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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