AFFIRM; and Opinion Filed July 19, 2017.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-16-00640-CR

                           EDGAR MIGUEL GARCIA, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                  Dallas County, Texas
                          Trial Court Cause No. F-1520811-H

                            MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Evans
                                Opinion by Justice Lang-Miers
       Edgar Miguel Garcia was indicted on a charge of capital murder in the stabbing death of

his friend. A jury convicted him of the lesser charge of murder and assessed punishment at

twenty years in prison. In two issues, appellant contends the evidence is legally insufficient to

support the jury’s rejection of his claim of self-defense and is both legally and factually

insufficient to support the jury’s rejection of his sudden passion claim. For the reasons set out

below, we conclude both issues are without merit. We affirm the trial court’s judgment.

       On September 3, 2015, a Duncanville couple taking an early morning walk discovered

the body of nineteen-year-old Spencer Dillon by the side of the road. Dillon had sustained

seventeen incise or stab wounds to his neck, shoulder, arm, fingers, thigh, and back. The fatal

injury was a gaping wound on the left side of Dillon’s neck. The wound was more than six

inches long and penetrated almost two inches into the neck, perforating the internal and external
jugular veins. The couple called the police. While the officers were investigating at the scene, a

vehicle connected to Dillon was found in an alleyway less than a mile away. The vehicle’s

interior had “lots of blood,” primarily in the back seat, which had multiple slashes.

       Officers pieced together the following story after talking to narcotics officers, Dillon’s

brother, and two of Dillon’s friends, Thomas Vela and Antonio Cruz. Dillon was a drug dealer.

He and his crew, which included Vela, Cruz, and appellant, hung out at a house on Chinaberry

Road in Dallas, where they sold marijuana and did drugs. Appellant was the newest member of

the group, and Vela and Cruz did not particularly like him. Vela had seen appellant stealing

from a friend’s purse, and both Vela and Cruz thought appellant was a thief and untrustworthy,

in part because of an incident that occurred a few weeks before Dillon’s death.

       In that incident, Dillon, a girlfriend, and appellant were stopped in DeSoto on a traffic

violation. Dillon was driving. Appellant had cocaine and hid it in the back seat where he was

seated. When the police searched the car, they found the drugs. Appellant denied the cocaine

was his or knowing about it. As a result, the police arrested Dillon, as the owner and operator of

the vehicle, and charged him with cocaine possession. The officers allowed appellant and the

female to leave in Dillon’s car.      Inside the car was Dillon’s backpack containing several

thousand dollars that went undetected by the police.

       Dillon called Vela and Cruz from the jail and asked them to make sure the backpack was

still in his car. Vela and Cruz checked, but the backpack was missing and appellant denied

taking it. When Vela told Dillon the backpack was not in the car, Dillon was “really upset, like

almost crying.” That night, Dillon bonded out of jail, and he and Vela went to pick up appellant,

who was not aware that Dillon had been released. Vela said Dillon was in the backseat, but

believed appellant could see him through the car window and denied there was any “ambush.”

The group headed to the Chinaberry house. During the three-minute drive, Vela said Dillon kept

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asking appellant about the backpack, if he had seen it, and what happened to it, but appellant

“acted like” he did not know. Vela said Dillon was not aggressive in his questioning and did not

hit appellant, except to “muff” him or “push” his head. Vela denied that Dillon ever put his cell

phone to appellant’s head and pretended it was a gun.

       Later that night while the three were hanging out at the Chinaberry house, appellant

admitted taking the backpack. He returned it to Dillon with all or most of the money. After that

night, Dillon continued to hang out with appellant, although Cruz and Vela discouraged it.

According to Vela, appellant never seemed afraid of Dillon, but Vela told Dillon he did not like

appellant and believed he would steal from him again.

       A few weeks later, Dillon and Vela were at the Chinaberry house. Dillon told Vela he

was going to pick up appellant to talk to him about the pending cocaine charge. Appellant had

given his lawyer an affidavit admitting the cocaine was his, but Dillon heard appellant planned to

tell the judge he was coerced into signing the paper. Vela urged Dillon to “leave it alone,” but

Dillon did not want the charge on his record.

       Later that day, Dillon and appellant met up with Vela at the Chinaberry house. At some

point, Dillon went to “re-up” his marijuana supply, about two pounds, and Vela and appellant

went with him. Before leaving, appellant left his gun and Xanax supply in Vela’s car, which was

parked outside the Chinaberry house. When the trio returned from the drug buy, they discovered

Vela’s car had been burglarized. Taken in the burglary were appellant’s gun and drugs as well as

$300 in cash belonging to Vela. Vela believed Dillon set up the burglary to “get back” at

appellant for stealing from him. When Vela took appellant home later that night, appellant was

upset and agitated about the burglary and told Vela he “lost a lot of money” and did not know

“what he was going to do.”




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       After dropping off appellant, Vela returned to the Chinaberry house to hang out with

Dillon and Cruz.     A few hours later, appellant texted Dillon and asked if he was busy.

Ultimately, appellant agreed to go with Dillon to make a drug transaction. Vela and Cruz both

warned Dillon not to get appellant, but Dillon ignored the warnings and left at about 2 a.m. to

pick him up. Four hours later, Dillon’s body was found just two doors down from the house

where appellant lived with his parents.

       The police interviewed appellant in connection with Dillon’s death. Appellant admitted

stabbing Dillon but said he did it in self-defense. Appellant told the officers that Dillon attacked

him in the car while dropping him off. He said Dillon thought appellant was “snitching” on him

and began “punching” him. Appellant had a knife in his sock. While struggling with Dillon, he

grabbed the knife to protect himself, jabbed Dillon multiple times in the chest area, and then

pushed him, knocking Dillon into the backseat. Appellant said he also ended up in the backseat,

and the struggle over the knife continued. After several minutes, he said Dillon appeared tired

and got out of the car.

       Appellant, who was covered in blood, panicked and drove off in Dillon’s car. Appellant

said he took off his shirt and shorts and threw them out of the window while driving and tried to

wipe away the blood with a blanket that was in the car. He also told the police that he dumped

evidence, including the blanket, knife, and cell phones, at the Chinaberry house. Afterwards, he

abandoned the car in an alley near his home.

       Appellant walked home and took a shower. Then he went back to where Dillon’s body

was located and took Dillon’s backpack containing marijuana and money. He put the marijuana

in a truck in the backyard of his home and the money in his wallet. At some point, appellant

called 9-1-1 to make it look like an unknown person had robbed Dillon. A few hours later, he

went to work.

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       During the interview, the detectives commented on appellant’s injuries: a “pretty deep”

cut to the thumb but not deep enough to require “a stitch,” a bite mark on appellant’s right

forearm, a small abrasion to his forehead, and minor cuts or scratches to his shoulder and hands.

Photographs of appellant’s injuries were admitted into evidence.

       When asked when the deep slash across Dillon’s throat occurred during the struggle,

appellant said he did not remember. Later, he indicated it may have happened when he first

stabbed Dillon. But he denied ever making a slashing motion. He never told the police that he

was afraid of Dillon, that Dillon tried to kill him, that Dillon held a gun on him that night or any

other night, or that he ever saw Dillon with a weapon.

       Dr. Grant Herndon performed the autopsy, which showed seventeen sharp force injuries

to Dillon’s neck, right shoulder, right arm, right thigh, back, and both hands. In addition, there

were several abrasions and contusions to the scalp, back, right thigh, knee, and left lower leg.

Herndon determined that Dillon died as a result of the large incised wound to his neck that cut

through several muscles as well as the internal and external jugular veins.          According to

Herndon, Dillon would have lost consciousness within “a matter of seconds” of receiving this

injury, unless he was able to immediately apply pressure, in which case Dillon could have

maintained consciousness for “maybe a few minutes.”

       Appellant testified in his defense. He said he started selling drugs when he began

running around with Dillon. He said Dillon “fronted” him marijuana and Xanax pills, and he

would sell them and make a profit for himself and Dillon. He admitted that Dillon was arrested

for drugs that were actually his. But, he denied taking Dillon’s backpack and money while

Dillon was in jail. He said Vela called him about bonding Dillon out of jail. Vela picked him up

and when he got in the front passenger seat, Dillon “popped up” from the back seat, put a gun to

his head, and asked about the missing money. According to appellant, Dillon told him not to

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turn around and threatened to find a “dark street” so he could shoot him.       Although appellant

initially denied taking the money, he eventually admitted taking it because he was being

threatened. Over the next few days, he said he gave Dillon about $700 in repayment but still

owed him money at the time of Dillon’s death.

       Appellant testified that a few weeks later, on the night of Dillon’s death, he went with

Dillon and Vela to buy marijuana. He denied, however, that he had a gun that night or that he

put a gun and drugs in Vela’s car for safekeeping. After he went home, he and Dillon exchanged

text messages and he agreed to go with him to make a drug deal. Appellant said he put a knife in

his sock for protection.

       While Dillon met with the drug buyer, appellant remained hidden in the backseat of

Dillon’s car. Once the buyer left, appellant got in the front seat, and he and Dillon sat in the car

smoking marijuana, using cocaine, and talking. During this time, Dillon asked appellant if he

planned “to snitch” on him and appellant said no. After about two hours, they headed back to

appellant’s house. As Dillon pulled up to the corner, he started asking appellant again about

“snitching” and then asked if he had anything to do with Vela’s car being burglarized.

According to appellant, Dillon got aggressive, yelled at him, and called him a snitch.

       Dillon started punching appellant, pinned him against the passenger door, and banged his

head against the window. According to appellant, Dillon demanded appellant’s money and

threatened to “fuck” him up and warned that snitches “didn’t make it in this world.” Appellant

feared Dillon was going to take him back to the Chinaberry house and call his friends. Appellant

said he grabbed the knife from his sock, while holding Dillon off with his forearms, and “jabbed”

Dillon a few times to get Dillon off of him. Appellant said Dillon “turn[ed] around and [went] in

the back seat.” Once there, he said Dillon grabbed his arm to take the knife from him, and

appellant said he ended up in the back seat on top of Dillon. The two struggled over control of

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the knife for about four or five minutes. At some point, appellant said he “fell into” Dillon, and

Dillon let go of the knife. Appellant said he got off of Dillon and moved to the other side of the

car. Although he denied he slashed Dillon’s throat, appellant said he noticed “more blood” after

that. Dillon said “something” about going to appellant’s house, grabbed the backpack, and got

out of the car. Appellant locked the doors and drove off. He knew Dillon was “hurt pretty bad”

because there “was a lot of blood,” but he did not know how badly. He did not call the police

because he said he did not know what to do. Rather, he panicked and drove to the Chinaberry

house, where he threw “stuff” out of the car. Then he abandoned the car in an alley near his

house.

         Appellant walked home and took a shower. He also called 9-1-1 and made a report to

make it seem like Dillon had been robbed and killed by someone else. He said he lied because

he was afraid Dillon’s friends would “come after” him. After calling 9-1-1, he went outside

where Dillon was lying. He said Dillon was not moving and did not appear to be breathing. He

grabbed Dillon’s backpack and put the marijuana in a truck in his backyard. He denied taking

any of Dillon’s money, although there was blood on money in appellant’s wallet when he was

arrested.

         On cross-examination, appellant acknowledged that he did not tell the police Dillon

threatened him with a gun, demanded money, or accused him of being responsible for the

burglary of Vela’s car. He also conceded he was not afraid of Dillon, even after he claimed

Dillon held a gun to the back of his head while questioning him about the backpack. Appellant

also admitted that the Xanax pills, which were his source of income, and his gun were taken just

hours before the fight with Dillon. But he denied he took a knife to his meeting with Dillon

because he planned to steal Dillon’s marijuana and money.




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       When asked why he did not exit the car when Dillon went into the backseat, appellant

said he did not know what to do. He also admitted that Dillon jumped into the backseat to get

away from the knife. When the prosecutor reminded him that Dillon had been stabbed in his

back, the back of his arm, and over his entire body, appellant explained they were “just

struggling over the knife.” He also admitted that Dillon never got full control of the knife. In

closing argument, the prosecutor sought a capital murder conviction for murder in the course of

robbery. The jury, however, found appellant guilty of murder.

       In his first issue, appellant challenges the sufficiency of the evidence to support the jury’s

rejection of his self-defense claim.

       As charged here, a person commits murder if he intentionally or knowingly causes the

death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). 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. Id. § 9.31(a). A person is justified in using deadly force against another (1) if he would be

justified in using force against another under section 9.31 and (2) when and to the degree he

reasonably believes the deadly force is immediately necessary to protect himself against the

other’s use or attempted use of unlawful deadly force. Id. § 9.32(a). “Deadly force” means

“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.” Id. § 9.01(3).

       The defendant has the initial burden of producing evidence to raise self-defense. Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991). If the defendant produces some evidence, the State has the burden of

persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is

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required to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804

S.W.2d at 913–14. The issue of self-defense is a fact issue to be determined by the jury. Saxton,

804 S.W.2d at 913. Defensive evidence which is merely consistent with the physical evidence at

the scene of the alleged offense 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. Id. at 914. When a fact finder determines the

defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d

at 594.

          When an appellant challenges the sufficiency of the evidence to support the rejection of a

self-defense claim, we review all the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact would have found the essential elements of the

offense beyond a reasonable doubt and also would have found against the appellant on the self-

defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. Our duty is to ensure the

evidence the State presented supports the jury’s verdict and the State presented a legally

sufficient case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.

App. 2012).

          Appellant argues the evidence demonstrated he was legally justified in using deadly force

against Dillon. Relying on his version of events, appellant claims he pulled out his knife to

defend himself after Dillon attacked him in the car. He said he had been previously assaulted by

Dillon and reasonably believed his life was in danger when appellant told him snitches “do not

make it in this world.” Finally, he contends he sustained injuries “consistent with someone

struggling over a knife” and was “cooperative and open” with detectives when they questioned

him.




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       But other evidence at trial refuted appellant’s claim that Dillon previously attacked him

over the missing money, and Cruz, Vela, and a third person, who was appellant’s friend, testified

appellant never appeared fearful of Dillon. Rather, appellant and Dillon continued to spend time

together even after the disagreement about the missing backpack. In fact, appellant admitted that

after Dillon allegedly threatened him with a gun to his head, he went to the Chinaberry house and

smoked marijuana with Dillon and was not afraid. Evidence showed that Dillon never carried

any weapon, but appellant carried guns and a knife.

       As for the physical evidence, the jury could assess appellant’s injuries from photographs

taken at the time. Those photographs showed minor cuts to his hand, some scratches, a bite mark

on his arm, but no bruises or other injuries that would be consistent with his story that Dillon was

beating him when he pulled out the knife. In contrast, Dillon had stab or incise wounds all over

his body, including the fatal wound to his neck. That injury was several inches long and deep

enough to cut through the muscle and internal and external jugular veins. Despite the magnitude

of the wound, appellant claimed he did not know when or how it happened, only suggesting that

it might have occurred when he fell on top of Dillon. Dillon also had stab wounds to his back

and the back of his arms. Given the wounds and their locations over Dillon’s body as well as all

the blood and slash marks to the backseat of the car, the jury could have believed that appellant

attacked Dillon with the knife, that Dillon tried to get away by jumping to the backseat, and

appellant followed and continued to stab him.

        Additionally, appellant’s story at trial differed from his interview with the police hours

after Dillon was found. Appellant never told the police that he was afraid of Dillon, that Dillon

tried to kill him, that Dillon threatened him with a gun, or that he saw Dillon with a gun. He did

not tell them Dillon demanded money or banged his head against the window and, when asked,

said he did not know how he got the bite mark on his forearm.

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       Finally, even if Dillon assaulted and threatened appellant, a jury could have believed

Dillon’s use of deadly force was not reasonable. There was no evidence that Dillon had a

weapon that day, and any evidence that he had a gun on a prior occasion was disputed. Dillon

suffered seventeen stab or incise wounds while appellant suffered only minor injuries. In fact,

appellant was able to walk home, shower, take a nap, and go to work as usual.

       Considering all the evidence in a light most favorable to the verdict, and given the jury’s

role in resolving conflicts in the evidence, we conclude the jury could have rationally rejected

appellant’s claim of self-defense. See Atkinson v. State, 517 S.W.3d 902, 907 (Tex. App.—

Corpus Christi 2017, no pet.) (concluding existence of multiple stab wounds undercut

defendant’s claim of self-defense and justified rational inference that defendant was aggressor

when analyzing evidence of culpable mental state in manslaughter case); Aguilar-Motino v.

State, No. 01-08-00527-CR, 2009 WL 3321418, at *3 (Tex. App.—Houston [1st Dist.] Oct. 15,

2009, pet. ref’d) (mem. op., not designated for publication) (concluding lack of physical

evidence to support claim of self-defense, multiple stab wounds to victim, and defendant’s

behavior in fleeing scene after disposing of weapon and failing to report attack sufficient for jury

to reject self-defense claim); Matos v. State, No. 01-06-01005-CR, 2008 WL 659832, at *8 (Tex.

App.—Houston [1st Dist.] Mar. 13, 2008, pet. ref’d) (mem. op., not designated for publication)

(concluding that “multiple stab wounds” and “defensive injuries” helped show defendant was not

acting in self-defense but had committed murder). We overrule the first issue.

       In his second issue, appellant argues the evidence is both legally and factually insufficient

to support the jury’s rejection of his claim of sudden passion.

       At the punishment phase, appellant testified he was not expecting Dillon to attack him

that night. He said he grabbed the knife because he was afraid Dillon would call his friends and

they would “get” him over at the Chinaberry house. He said they had beat him up once before

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and put a gun to the back of his head. He also said he never knew where he cut Dillon until the

detectives showed him the photograph during his interview. The jury rejected Dillon’s claim of

sudden passion and sentenced him to twenty years in prison.

       Once a defendant has been found guilty of murder, he may raise, at the punishment

phase, the issue of whether he caused the death under the immediate influence of sudden passion

arising from adequate cause. TEX. PENAL CODE ANN. § 19.02(d). If the defendant proves the

issue in the affirmative by a preponderance of the evidence, the offense is reduced to a second-

degree felony. Id. A person acts with “sudden passion” if the passion is directly caused by and

arose out of the provocation of the individual killed or another acting with the person killed, and

the passion arises at the time of the offense and is not solely the result of former provocation. Id.

§ 19.02(a)(2). An “adequate cause” is one which would “commonly produce a degree of anger,

rage, resentment or terror in a person of ordinary temper, sufficient to render the mind incapable

of cool reflection.” Id. § 19.02(a)(1).

       Although the issue of sudden passion is a punishment issue, it is analogous to an

affirmative defense because the defendant has the burden of proof by a preponderance of the

evidence. See Matlock v. State, 392 S.W.3d 662, 667 & n.14 (Tex. Crim. App. 2013); Gaona v.

State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d). For this reason, a finding on

sudden passion may be evaluated for legal and factual sufficiency. Gaona, 498 S.W.3d at 710.

       When reviewing a legal sufficiency challenge to a negative finding on sudden passion,

the standard of review is the same as the legal sufficiency standard utilized in civil cases. Id.

First, we review the record for a scintilla of evidence to support the jury’s negative finding on

sudden passion and disregard all evidence to the contrary unless a reasonable fact finder could

not. See id. If we find no evidence that supports the finding, we determine whether the contrary




                                               –12–
proposition was established as a matter of law. Id. We defer to the fact finder’s determination of

credibility of the testimony and weight to give the evidence. Id.

       In a factual sufficiency review, we view the entire record in a neutral light, and we may

not usurp the function of the factfinder by substituting our judgment in place of the factfinder’s

assessment of the weight and credibility of the witnesses’ testimony. Matlock, 392 S.W.3d at

671. The standard of review is whether after considering all the evidence relevant to the issue at

hand, the judgment is so against the great weight and preponderance of the evidence as to be

manifestly unjust. See id.

       Here, appellant argues the attack in the car happened unexpectedly and did not allow for

“cool reflection.” He argues the evidence showed he was “sufficiently provoked” in a way that

forced him to immediately “defend his own life.”

       Applying the appropriate standards and having reviewed the entire record as set out

above, we conclude the jury could have disbelieved appellant’s version of what happened, could

have determined Dillon did not threaten or assault appellant prior to having his throat fatally

slashed, and thus could have concluded there was no provocation by Dillon. Consequently, we

conclude that the evidence is legally and factually sufficient to support the jury’s rejection of

appellant’s claim of sudden passion. We overrule the second issue.

       We affirm the trial court’s judgment.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)

160640F.U05

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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

EDGAR MIGUEL GARCIA, Appellant                         On Appeal from the Criminal District Court
                                                       No. 1, Dallas County, Texas
No. 05-16-00640-CR         V.                          Trial Court Cause No. F-1520811-H.
                                                       Opinion delivered by Justice Lang-Miers;
THE STATE OF TEXAS, Appellee                           Justices Bridges and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of July, 2017.




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