Affirmed and Memorandum Opinion filed November 10, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00844-CR

                       JUSTIN ROSS ALLEN, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1407495

                 MEMORANDUM                      OPINION


      Appellant appeals his conviction for murder. In two issues he challenges the
sufficiency of the evidence to support the conviction. We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant and several co-workers were staying at a motel in Houston while
working on a construction job. Appellant’s father was the supervisor. Appellant
and the complainant were staying in the same motel room. On the night of the
offense, appellant, the complainant, and a co-worker named German Aguilar were
working the night shift. In the early morning hours appellant came to his father’s
motel room and told his father that the complainant would not be reporting for
work the next day because he was dead in appellant’s motel room.

      When Harris County Sheriff’s deputies arrived, appellant’s father directed
the investigation toward appellant’s motel room. Inside the deputies found the
complainant’s body wrapped in a blanket on the floor. The deputies did not see
appellant, and advised the dispatcher that appellant was a suspect and that he was
not at the scene. The deputies also discovered sheets, pillowcases, and a pillow
from the bed in the bathtub with soapy water. The bed that the complainant had
occupied during the motel stay did not have any bedding. The other bed, in which
appellant had been sleeping, still had bedding on it. The complainant had wounds
to the back of his neck that initially appeared to be stab wounds.

      After getting a search warrant, law enforcement officers searched the motel
room and discovered a hammer inside of two trash bags. The hammer appeared to
have been placed in a clear plastic bag and then the clear bag containing the
hammer had been placed in a black plastic trash bag. The officers discovered blood
on the headboard of the complainant’s bed and on the sheet covering the
complainant’s body. The complainant’s body was fully dressed.

      Because appellant had left the scene, the Harris County canine unit was
called out to help search for him. The canine unit reported to the La Quinta motel,
where appellant had last been seen. When the search dog alerted on appellant in the
high grass of a retention pond near the motel, the canine handler shined his
flashlight and saw appellant lying on the ground. Because the dog is trained to
engage with the suspect, the dog bit appellant. The handler did not instruct the dog
to release appellant until appellant was handcuffed. Later, appellant received

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treatment at the hospital for the dog bite.

      Appellant’s Testimony

      Appellant testified that he and the complainant had been roommates for
approximately three weeks. According to appellant, the complainant often
mentioned his lack of sexual intercourse, showered with the door open, and
masturbated approximately every other day. Appellant testified that the
complainant’s conduct made him uncomfortable.

      According to appellant, the complainant took sleeping medication every
night. On the night before the offense, appellant and the complainant returned to
the motel from the night shift. The complainant took a shower while appellant
made a sandwich, drank a beer, and began to watch television. Appellant took a sip
from his second beer when he decided to take a shower. Appellant left his open
beer in the room while he was in the shower. After getting out of the shower,
appellant drank the rest of the second beer and then drank a third beer before going
to bed. Appellant testified that he felt more groggy than usual after drinking three
beers. At some point after going to bed appellant was awakened by a hand on his
shoulder. When appellant awoke he discovered his underwear and pajama pants
were pulled down to his ankles. He also heard the complainant climbing into the
complainant’s bed. Appellant felt what he thought was semen on his buttocks.

      Appellant woke up late that afternoon and prepared for the night shift. The
shift ended early because a part on the machine they were using broke. Appellant,
the complainant, and Aguilar returned to the motel. Appellant asked Aguilar for
the keys to Aguilar’s van from which appellant retrieved a battery charger for a
power tool and a hammer. Appellant returned to the motel room and placed the
battery charger and hammer on his bed. After approximately five minutes the
complainant grabbed appellant in a “bear hug,” and the two men fell onto the bed.
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The complainant was on top of appellant and began “humping” appellant.
Appellant grabbed the hammer and hit the complainant twice in the back of the
head, which caused the complainant to fall onto the bed. Appellant moved the
complainant’s body to the floor and covered him with a sheet. Appellant took the
other sheet from the bed, put it in the bathtub, and turned on the water. Appellant
then walked to his father’s room and reported that the complainant would not be at
work that day because he was dead. Appellant’s father told appellant he would call
911. Appellant then returned to his motel room, drank approximately four beers,
smoked a cigarette, and placed the hammer inside two plastic bags in the trash can
of his motel room. When appellant saw the police arrive, he fled to a nearby La
Quinta motel, jumped over a fence, and hid in a retention pond until the canine unit
found him.

       On cross-examination appellant testified he did not remember closing the
trash bag that contained the hammer, nor did he remember taking the pillow from
the bed out of the pillowcase and placing the pillowcase and pillow in the bathtub.

       State’s Rebuttal Evidence

       The forensic sexual assault nurse examiner testified that she performed a
physical examination on appellant while he was sedated in surgery. 1 Her physical
examination revealed scratches on appellant’s rib cage, but no evidence of sexual
trauma. After appellant woke from surgery, the nurse attempted to obtain an oral
history from appellant. Appellant replied, “I prefer not to talk about it, not without
my lawyer present.” The nurse reported that appellant “became very tearful,” and
stated he did not want to talk about the alleged sexual assault at that time. The
nurse testified that it was not uncommon for a victim of sexual assault to become
tearful.
       1
           Appellant required surgery as a result of the dog bite.

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                             II. ISSUES AND ANALYSIS

      Appellant presents two issues on appeal. He asserts that the evidence is
legally insufficient to support his conviction in that (1) there is no evidence of
intent to murder, and (2) the State failed to sufficiently refute appellant’s evidence
of self-defense.

      Appellant argues that the trial court erred in denying his motion for
instructed verdict because at the close of the State’s case-in-chief the State had
proved only that (1) the complainant died from blunt force trauma, (2) appellant
told his father that the complainant “wasn’t going to make it to work the next day
because he was dead in a blanket in a motel room,” and (3) appellant was located
and arrested outside of the motel.

      A challenge to the trial court’s ruling on a motion for an instructed verdict is
in actuality a challenge to the sufficiency of the evidence to support the conviction.
Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Therefore, when
considering whether the trial court erred in overruling a motion for instructed
verdict, the reviewing court is not limited to a review of the evidence presented in
the State’s case-in-chief. Id. We will consider appellant’s issues in light of the
well-established standard of review applicable to a challenge to the sufficiency of
the evidence to support a conviction.

      In evaluating a challenge to the sufficiency of the evidence supporting a
conviction, we view all of the evidence in the light most favorable to the verdict.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819
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S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to
believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence,
we presume the trier of fact resolved conflicts in favor of the prevailing party.
Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.
Crim. App. 1997).

            A. Is the evidence sufficient to support the jury’s finding that
      appellant intended to kill the complainant?
      A person commits the offense of murder if he 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) (West 2011). A person acts with
intent “with respect to the nature of his conduct or to a result of his conduct when it
is his conscious objective or desire to engage in the conduct or cause the result.”
Tex. Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly with
respect to his conduct when that person is aware the conduct is reasonably certain
to cause the result. Tex. Penal Code Ann. § 6.03(a).

      The State initially argues that appellant’s first issue should be overruled
because appellant testified he committed the offense in self-defense. Because an
act of self-defense is an intentional act, the State argues appellant cannot challenge
the sufficiency of the evidence to support intent to kill the complainant. The Court
of Criminal Appeals of Texas, however, has held that the Penal Code does not
require that a defendant intend the death of an attacker for the appellant to be
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justified in using deadly force in self-defense. Alonzo v. State, 353 S.W.3d 778,
783 (Tex. Crim. App. 2011). Therefore, appellant may argue that he acted in self-
defense, but, in doing so, did not intend to kill the complainant.

      Intent, being a question of fact, is in the sole purview of the jury. Brown v.
State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A jury may rely on collective
common sense and common knowledge when determining intent. Ramirez v. State,
229 S.W.3d 725, 729 (Tex. App.—San Antonio 2007, no pet.). Intent also may be
inferred from the circumstantial evidence surrounding the incident, which includes
acts, words, and conduct of the accused. See Tex. Code Crim. Proc. Ann. art.
38.36(a) (West 2005); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim App.
1995).

      The jury heard evidence that during the day, before the complainant’s death,
appellant retrieved a hammer from Aguilar’s truck. Appellant admitted hitting the
complainant in the back of the head with a hammer. Appellant testified that after
he struck the complainant with the hammer, he stripped the sheets from the bed
and placed them in the bathtub with soap and water. Appellant also admitted he
wrapped the hammer in two trash bags and placed them in the motel room trash
bin. Appellant then fled the motel where the complainant was killed and hid in a
retention pond until a Sheriff’s office canine unit found him. “Attempts to conceal
incriminating evidence, inconsistent statements, and implausible explanations to
the police are probative of wrongful conduct and are also circumstances of guilt.”
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury could have
inferred intent from the evidence of appellant’s (1) acquisition of the murder
weapon earlier in the day, (2) attempts at concealment, and (3) flight from the
scene of the offense that he intended to kill the complainant. See id. Finding
sufficient evidence that appellant intentionally committed an act clearly dangerous

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to human life, we overrule appellant’s first issue.

            B. Is the evidence sufficient to support the jury’s rejection of
      appellant’s self-defense theory?
      In his second issue appellant argues there was insufficient evidence to
“disprove” self-defense beyond a reasonable doubt. The State, however, was not
required to “disprove” self-defense. Because appellant raised the issue of self-
defense, the State had to prove the elements of the offense beyond a reasonable
doubt, and the State had to persuade the jury that appellant did not kill the
complainant in self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.
App. 2003). A defendant has the burden of producing some evidence to support a
claim of self-defense. Zuliani, 97 S.W.3d at 594. Once the defendant produces that
evidence, the State then bears the burden of persuasion to disprove the raised
defense. Id. The burden of persuasion does not require the State to produce
evidence; it requires only that the State prove its case beyond a reasonable doubt.
Id. A determination of guilt by the factfinder implies a finding against the
defensive theory. Id.

      A person is justified in using deadly force against another when and to the
degree the person reasonably believes the deadly force is immediately necessary to
prevent the other’s imminent commission of sexual assault. Tex. Penal Code
§ 9.32(a)(2)(B) (West 2011). In resolving the sufficiency-of-the-evidence issue, we
look not to whether the State presented evidence that refuted appellant’s self-
defense testimony, but rather we determine whether after viewing all the evidence
in the light most favorable to the prosecution, any rational trier of fact would have
found the essential elements of murder beyond a reasonable doubt and also would
have found 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); Hernandez v.
State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
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Defensive evidence that is merely consistent with the physical evidence at the
scene will not render the State’s evidence insufficient since the credibility
determination of such evidence is solely within the jury’s province and the jury is
free to accept or reject the defensive evidence. Saxton, 804 S.W.2d at 914.

      Appellant argues it was unreasonable for the jury to have rejected his claim
of self-defense because he had no motive to kill the complainant. Appellant
contends that the only reason he struck the complainant with the hammer was in
self-defense. The jury also heard evidence that appellant retrieved the hammer
from his co-worker’s truck and placed it on the bed in the motel room. The
complainant was struck in the back of the head, which is inconsistent with
appellant’s testimony that the complainant approached him from behind.
Moreover, the physical evidence revealed blood spatter on the complainant’s
headboard, but not on the bed in which appellant had been sleeping. The bedding
was still on appellant’s bed, but had been removed from the complainant’s bed and
placed in the bathtub.

      Any alleged inconsistencies in the evidence and the witnesses’ testimony
concern the credibility and weight to be given their testimony. See Lancon v. State,
253 S.W.3d 699, 705–07 (Tex. Crim. App. 2008). To the extent the testimony is
inconsistent, the jury, as the trier of fact, had the ultimate authority to determine
the credibility of witnesses and the weight to be given to their testimony. See Tex.
Code Crim. Proc. art. 38.04; Garcia v. State, 919 S.W.2d 370, 382 n. 6 (Tex. Crim.
App. 1996). Any inconsistencies in the evidence should be resolved in favor of the
jury’s verdict in a sufficiency review. Moreno v. State, 755 S.W.2d 866, 867 (Tex.
Crim. App. 1988); Draper v. State, 335 S.W.3d 412, 415 (Tex. App.—Houston




                                           9
      [14th Dist.] 2011, pet. ref’d).

      Considering all of the evidence in the light most favorable to the verdict, we
conclude the evidence is sufficient to support the jury’s implicit rejection of
appellant’s claim of self-defense. We overrule appellant’s second issue.

      Having overruled all of appellant’s challenges on appeal, we affirm the trial
court’s judgment.




                                        /s/    Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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