                                              NO. 07-03-0514-CR

                                       IN THE COURT OF APPEALS

                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                 AT AMARILLO

                                                    PANEL C

                                            JUNE 3, 2005
                                   ______________________________

                                            DYLON JAY CARTER,

                                                                          Appellant

                                                         v.

                                          THE STATE OF TEXAS,

                                                              Appellee
                                _________________________________

                   FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                         NO. 15537-C; HON. PATRICK PIRTLE, PRESIDING
                               _______________________________

                                        Memorandum Opinion
                                  _______________________________


Before JOHNSON, C.J., and QUINN, C.J., and REAVIS, J.1

         In appealing his conviction for aggravated assault with a deadly weapon, appellant

Dylon Jay Carter contends that the evidence was legally and factually insufficient for the

jury to have found that he did not act in self-defense. We affirm the judgment of the trial

court.




         1
             Chief Justice Johnson did not participate in this opinion.
        On June 6, 2003, appellant was involved in a fight with Darrell Faircloth at a club in

Amarillo. While he asserted that he stabbed Faircloth in self-defense, a witness (a bouncer

at the club), testified that appellant went to his vehicle and emerged with a knife.2 So too

did the bouncer state that he attempted to dissuade appellant from doing anything with the

knife. However, to these entreaties, appellant allegedly replied: “No man, this ain’t right.

I don’t deserve this. He needs to get what he deserves.” At that time, Faircloth and his

friend were 15 to 20 yards away and were not approaching appellant. Nonetheless,

according to the bouncer, appellant ran towards Faircloth and began hitting and stabbing

him.

        When a defendant raises self-defense, the State is required to prove the elements

of the offense beyond a reasonable doubt and persuade the jury that the defendant did not

act in self-defense.        Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

Additionally, a person is justified in using deadly force against another 1) if he would be

justified in using force under §9.31 of the Texas Penal Code, 2) if a reasonable person in

the actor’s situation would not have retreated, and 3) when and to the degree he

reasonably believed that the deadly force was immediately necessary to protect himself

against the other’s use or attempted use of unlawful deadly force. TEX . PEN . CODE ANN .

§9.32(a)(1), (2) & (3)(A) (Vernon 2003).

        At bar, evidence appears of record indicating that though another may have initially

assaulted appellant, the latter retreated to his car to obtain a knife and returned to the fray

with it. While both appellant and Faircloth offered testimony contradicting this version of


        2
          Faircloth testified that he did n ot se e appellant go to his vehicle and there were no bouncers trying
to stop the figh t.

                                                       2
events, the testimony nonetheless constituted some evidence upon which a rational juror

could reasonably conclude, beyond reasonable doubt, that appellant committed assault

with a deadly weapon. In other words, such a juror could have rationally concluded that

a reasonable person, under the circumstances, would not have believed that the use of

deadly force was immediately necessary because appellant had the opportunity to retreat

when he went to his car and was no longer under attack. Thus, some evidence supports

the jury’s verdict.

       Next, that the evidence supporting the verdict was contradicted by other testimony

simply created an issue of fact for the jury to resolve. Saxton v. State, 804 S.W.2d 910,

913-14 (Tex. Crim. App. 1997) (stating that the jury is free to accept or reject the

defendant’s evidence). It remained free to accept the bouncer’s version of events and

reject those proffered by appellant and Faircloth, and doing so does not render the verdict

manifestly unjust.

       Accordingly, both legally and factually sufficient evidence supports the verdict, and

we affirm the judgment of the trial court.



                                                 Per Curiam



Do not publish.




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