                                  NO. 12-17-00240-CR

                             IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 JOSHUA SCALES,                                    §      APPEAL FROM THE 114TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Joshua Scales appeals his conviction for murder. In two issues, Appellant argues that the
evidence is insufficient and certain court costs are unconstitutional. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with murder. He pleaded “not guilty,” and the matter
proceeded to a jury trial.
       At trial, the undisputed evidence showed that Appellant’s roommate Jana Lang told Jordan
Ladue to go to her home in Troup to obtain some money. Tammy Dilbeck and Ladue’s wife,
Christina, waited in the car while Ladue went to the back of the house. Several minutes later,
Appellant shot Ladue in the neck. Ladue ran to the car, where he died within minutes.
       In his defense, Appellant testified that he thought Ladue was an intruder. He retrieved the
gun to defend himself and accidentally shot Ladue while chasing him out of the house.
       In its jury charge, the trial court included an instruction on the law regarding use of deadly
force in self-defense to prevent a robbery. Ultimately, the jury found Appellant “guilty” of murder
and assessed his punishment at imprisonment for thirty-five years. This appeal followed.
                                    EVIDENTIARY SUFFICIENCY
       In Appellant’s first issue, he argues that the State failed to prove his killing of Ladue was
not in self-defense.
Standard of Review and Governing Law
       The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.
Ct. 2781, 2786–87; Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010). The issue of
self-defense is a fact issue to be determined by the jury, and a jury’s verdict of guilt is an implicit
finding that it rejected the defendant’s self-defense theory. Saxton v. State, 804 S.W.2d 910, 913–
14 (Tex. Crim. App. 1991). Accordingly, the jury’s implicit rejection of a defendant’s self-defense
theory must be supported by legally sufficient evidence. Id. at 914. In reviewing the sufficiency
of the evidence to support the jury’s rejection of self-defense, we examine all 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 offense and could have found against the defendant on the self-defense
issue beyond a reasonable doubt. Id.
       When a defendant raises self-defense, he bears the burden of producing some evidence to
support his defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing
Saxton, 804 S.W.2d at 913–14). Once the defendant produces some evidence supporting his
defense, the state then bears the burden of persuasion to disprove the raised defense. Id. The
burden of persuasion does not require the production of evidence; it requires only that the state
prove its case beyond a reasonable doubt. Id. Moreover, “[d]efensive evidence which is merely
consistent with the physical evidence at the scene of the alleged offense will not render the [s]tate’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. When contradictory testimonial evidence is before the jury, we defer to the jury’s weight
determinations. Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008).
       To prove Appellant guilty of murder, the State was required to prove that he intentionally
or knowingly caused Ladue’s death, or that he intended to cause serious bodily injury and
committed an act clearly dangerous to human life that caused Ladue’s death. See TEX. PENAL
CODE ANN. § 19.02 (West 2011).




                                                  2
       As applicable here, a person is justified in using deadly force in self-defense when and to
the degree he reasonably believes deadly force is immediately necessary to prevent the other’s
imminent commission of robbery. Id. §§ 9.31(a), 9.32(a)(2)(B) (West 2011). A “reasonable
belief” is that which “would be held by an ordinary and prudent man in the same circumstances as
the actor.” Id. § 1.07(a)(42) (West Supp. 2017).
The Evidence
       At trial, Casey Luna testified that he was a friend or associate of both Lang and Ladue. On
the night of the murder, he was with Lang at a Whataburger in Tyler. Luna heard Lang tell Ladue
over the phone to go by her house and get some money.
       Christina testified that she, Ladue, and Dilbeck stopped at Lang’s home on their way to a
game room in Tyler. Dilbeck parked the car in the street, and Ladue went to the back of the house.
After about five minutes, Christina became concerned. Dilbeck called Ladue on his cell phone.
The call was answered, but Ladue did not speak to Dilbeck. Christina could hear Ladue and another
person yelling back and forth. She believed that she heard the other person say either “I don’t
know you” or “I don’t owe you.” The call lasted about thirty seconds before it was disconnected.
Dilbeck called again, but there was no answer. Dilbeck and Christina lowered the car windows.
They heard silence and then a gunshot. Seconds later, Ladue ran from behind the house and got
in the car. Christina saw that Ladue was shot. Dilbeck drove toward the police station. Ladue’s
heart stopped before emergency medical services arrived.
       Roshee Boyd testified that he lived at Lang’s home with Lang, Appellant, and Lang’s
sister-in-law, Alea. That night, he was in his bedroom when he heard someone arguing and then
a gunshot. Appellant knocked on his door and said, “Shot that bitch ass nigga. Tell the police I
wasn’t here.” Appellant went to his room, grabbed some things, and left.
       Alea likewise testified that she and Boyd were in their bedroom that night when they heard
a gunshot. Appellant knocked on the door and said, “I just shot that mother fucker.” Boyd asked,
“Who? What happened?” Appellant replied, “Fuck that bitch ass nigga.” Appellant instructed
them not to tell the police he was there.
       Detective Noel Martin of the Smith County Sheriff’s Office performed a crime scene
investigation. Based on blood spatter evidence, he concluded that Ladue was standing in the back
yard near the porch when he was shot. Furthermore, based on the blood spatter evidence, the line
of sight to Ladue, and the location where a fired shell casing was recovered, Martin concluded that



                                                3
the shooter was either on the back porch when he fired the shot or just inside the doorway. Martin
processed the interior of the home for fingerprints and did not locate any matching Ladue’s.
Independent crime scene consultant Bob Henderson reviewed the evidence and came to the same
conclusions regarding Appellant’s and Ladue’s locations at the time of the shooting.
       Dr. Stephen Hastings performed the autopsy. He determined that Ladue’s death was
caused by a gunshot that perforated his aorta. Hastings opined that the direction of the bullet was
front to back and downward, entering his neck and exiting his back.
       DPS Trooper David Ford, a former Cherokee County Sheriff’s Deputy, testified that three
days after the shooting, he went to a home in Reklaw based on a tip to look for Appellant. When
he arrived, he went to the back of the home and found Appellant climbing out through an open
window. A bodycam recording of this event was admitted into evidence. Lieutenant Shawn
Murray of the Troup Police Department testified that he found the car Appellant was driving near
the home where he was apprehended. The car was hidden under some brush and its rear license
plate was removed.
       Appellant testified that he saw Ladue once or twice before, but he did not recognize him
that night. He claimed he was lying in bed when he saw a person’s silhouette in the doorway. The
person moved toward him. Appellant arose and wrestled with him, and then grabbed a nearby
gun. The person turned and ran, and Appellant pursued him. When Appellant reached the kitchen,
the gun fired accidentally at an upward angle. At that time, the person was around the top step of
the back porch with his back to Appellant.1 Appellant did not know that the shot hit the person.
       Appellant said that after the shot was fired, he knocked on Alea’s and Boyd’s door, but he
was not sure what he told them. Appellant then left because he was scared and “freaked out.” He
met Lang at a gas station in Turnertown and rode around with her all night. The next morning,
Appellant dropped Lang off at the house behind hers. From there, he went to his friend Donny’s
house in Reklaw. The next day, Donny wanted Appellant’s car out of the driveway because he
was “all over the news.” They moved the car to the pasture and covered it with tall grass. When
the police came for Appellant, he was crawling out the back window of Donny’s home because
the home was locked from the outside, and he was attempting to surrender.




       1
           Evidence shows that the back door is in the kitchen.


                                                          4
Analysis
       Appellant argues that the evidence in this case supports a conclusion that he acted to defend
himself, his home, and his property from someone who he reasonably believed was a burglar or
robber. He contends that a majority of the evidence supports his claim that Ladue entered or
attempted to enter the back door of the home without Appellant’s invitation. Appellant concedes
that his flight from the scene might be considered evidence of his guilt, but he argues his
explanation that he fled out of fear of his attacker’s return is equally believable. He concludes
that, even in the light most favorable to the verdict, the evidence is legally insufficient to support
a conclusion that he acted in any way other than in defense of his home, self, and property when
he killed Ladue. We disagree.
       The jury was not required to accept Appellant’s version of events as truth, and the evidence
aside from Appellant’s testimony tends to tell a different story. See Saxton, 804 S.W.2d at 914.
First, the evidence besides Appellant’s testimony does not support his assertion that he believed
Ladue was an unknown intruder. Luna testified that Lang sent Ladue to the house for some money.
While waiting in the car for Ladue, Christina heard Ladue and another man arguing on Dilbeck’s
cell phone, then silence, then a gunshot. According to Boyd and Alea, Appellant then knocked on
their door and told them he shot someone. But rather than stating that he shot an intruder,
Appellant said he shot “that bitch ass nigga” or “that mother fucker.”
       Second, the evidence does not align with Appellant’s assertion that Ladue was shot while
running out of the house. The crime scene experts agreed that Ladue was standing outside on the
ground when he was shot, not on the top step as Appellant claimed. They further agreed that
Appellant could not have shot Ladue from where he said he was in the house. Furthermore, based
on Dr. Hastings’s opinion that the bullet entered Ladue’s body from the front, Ladue could not
have been running away from Appellant when he was shot.
       Finally, Appellant’s actions after the shooting tend to undermine his claim of self-defense.
Flight is evidence of guilt. Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. [Panel Op.]
1980). Evidence showed that after Appellant shot Ladue, he told Boyd and Alea not to tell the
police he was there, fled, hid his car, and climbed out the back window of his friend’s home when
the police came for him.
       Having examined the evidence in the light most favorable to the verdict, we conclude a
rational jury could have found beyond a reasonable doubt that Appellant did not believe deadly



                                                  5
force was immediately necessary to prevent Ladue’s imminent commission of robbery. See
Saxton, 804 S.W.2d at 914; TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a)(2)(B). Therefore, the
evidence is legally sufficient to support Appellant’s conviction. We overrule Appellant’s first
issue.


                                                  COURT COSTS
         In Appellant’s second issue, he argues that the trial court erred by imposing court costs
under the consolidated fee statute that were held to be unconstitutional in Salinas v. State. See
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2017); Salinas v. State, 523 S.W.3d
103, 113 (Tex. Crim. App. 2017). The consolidated fee statute requires a defendant to pay a court
cost of $133 on conviction of a felony. TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1). The money
received is divided among a variety of state government accounts according to percentages dictated
by the statute. See id. § 133.102(e) (West Supp. 2017); Salinas, 523 S.W.3d at 105. In Salinas,
the court of criminal appeals held the statute unconstitutional with respect to two accounts: an
account for “abused children’s counseling” and an account for “comprehensive rehabilitation.”
See Salinas, 523 S.W.3d at 105.
         The State argues that the trial court did not err because the Legislature amended the
consolidated fee statute to delete the unconstitutional provisions before Appellant’s court costs
were imposed. See Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Sess. Law Serv.
3917, 3917–18 (West). In his reply brief, Appellant concedes that his issue should be overruled
for this reason. We agree. Accordingly, we overrule Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.


                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


                                             (DO NOT PUBLISH)




                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                         NO. 12-17-00240-CR


                                        JOSHUA SCALES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0630-17)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
