                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                              NO. 09-12-00290-CR
                             ____________________

                 BRETT TANNER HERRINGTON, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 411th District Court
                         San Jacinto County, Texas
                           Trial Cause No. 10,467
________________________________________________________            _____________

                          MEMORANDUM OPINION

      A jury found Brett Tanner Herrington guilty of assault, as a lesser included

offense of aggravated assault as alleged in the indictment. The trial court assessed

as punishment one year of confinement in county jail, probated for two years, and

a $500 fine. On appeal, Herrington contends the evidence is insufficient to support

his conviction because the State failed to disprove his assertions of self-defense

beyond a reasonable doubt.



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      “[T]he Jackson v. Virginia legal-sufficiency standard is the only standard

that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010) (applying Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We

assess all the evidence in the light most favorable to the prosecution to determine

whether any rational trier of fact could find the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007). Under the Jackson standard, we “must give

deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.’” Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at

318–19). “[I]t is not necessary that every fact point directly and independently to

the defendant’s guilt; it is enough if the conclusion is warranted by the combined

and cumulative force of all the incriminating circumstances.” Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993).

      The defendant bears the burden of producing some evidence to support his

claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). Once the defendant produces some evidence to support his defense, the

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State bears the burden of persuasion to prove its case beyond a reasonable doubt.

Id. On appeal

      we look not to whether the State presented evidence which 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 [the offense] beyond a reasonable doubt and also would
      have found against appellant on the self-defense issue beyond a
      reasonable doubt.

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).                 “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. The jury’s determination of

guilt includes an implicit finding against the theory of self-defense. Id.

      A person generally “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) (West 2011). The use of force is not justified “in

response to verbal provocation alone[.]” Id. § 9.31(b)(1). A person is not required

to retreat before using force if the person neither provoked the person against




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whom the force is used, nor is engaged in criminal activity at the time the force is

used. Id. § 9.31(e).

      The jury heard testimony that animosity had existed between Herrington and

the victim, Thomas Barclay, for many years. In his youth, Herrington worked for

Barclay and Herrington testified that Barclay had denied him his rightfully-earned

wages.

      On the date of the offense, Barclay went to a nightclub and encountered

Herrington for the first time in many years. According to Barclay, Herrington

walked up to him that night and stated that he would kill Barclay before he died.

Barclay claimed he tried to avoid Herrington that evening, but Herrington

approached him a second time and said, “‘Let’s dance[,]’” which Barclay

understood to suggest that they fight. At some point later in the evening, Barclay

entered the restroom and noticed Herrington at the back of the room. Herrington

demanded that Barclay leave the restroom. Barclay did not leave immediately, but

when he did turn to leave Herrington unexpectedly struck Barclay with his fist.

Barclay claimed he had one hand at his side and was reaching for the door with the

other. Barclay admitted he carried a pocketknife in his pocket, but he denied

threatening Herrington at any point in the evening. Barclay testified that he lost




                                         4
consciousness when Herrington struck him. Barclay sustained a broken jaw and a

fractured nose.

      A friend of Barclay’s testified as an eyewitness to the assault. The witness

stated that Herrington told Barclay to get out and Barclay responded that he would

when he finished using the restroom. He did not see Barclay with a weapon and

did not see Barclay threaten Herrington in any way before Herrington hit Barclay.

The witness stated that Barclay turned to leave, then turned to look back, and then

Herrington hit Barclay on the jaw. Herrington told the witness, “‘If you say

anything, I’m going to whoop your ass.’”

      An acquaintance of Barclay’s testified that he was present when Herrington

approached Barclay on the dance floor and later in the restroom when Herrington

told Barclay to leave. According to this witness, Barclay made no threatening

move towards Herrington. He stated that Herrington struck Barclay while Barclay

was reaching for the door to leave the restroom, then Herrington hit Barclay

several more times as Barclay slid to the floor. When the witness tried to intervene,

Herrington told him to get out of the way or he would do the same thing to him.

      A former employee of Barclay’s, who is married to Barclay’s ex-wife,

testified that Barclay had a bad reputation for dishonesty and aggressiveness.

According to this witness, Barclay carries a clip-on knife with a three to four inch

                                         5
blade. In 1998, the witness had heard Barclay say of Herrington that if he ever

caught him somewhere, he would kill him. He conveyed the threat to Herrington.

      Herrington testified that Barclay tried to shake his hand when they first

encountered each other at the nightclub. Herrington claimed that he asked Barclay

to leave the restroom because he did not want to be backed into a corner by a

person he knew wanted to harm him. According to Herrington, Barclay blocked

the exit when he tried to leave. Herrington said he felt threatened because Barclay

put his hand on his right pocket where Herrington knew Barclay kept a knife.

Herrington felt he was in danger of serious bodily injury or death. Herrington

admitted he hit Barclay three or four times. He denied landing blows while

Barclay was unconscious. Herrington also denied that he followed Barclay to the

door, and instead, claimed that Barclay “turned around and come back in and

swung at me.”

      The jury resolved the conflicts in the testimony. See Hooper, 214 S.W.3d at

13. Only Herrington perceived any threatening words or movement from Barclay

while the men were in the restroom. The jury could believe Barclay and the

eyewitnesses, disbelieve any contradictory testimony from Herrington, rationally

determine that the use of force was not immediately necessary, and find that

Herrington assaulted Barclay. See Denman v. State, 193 S.W.3d 129, 132-34 (Tex.

                                        6
App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that jury could reject

defendant’s claim that victim pointed a loaded shotgun at him and defendant and

defense witnesses’ testimony regarding past altercations between defendant and the

victim). The evidence is sufficient to support the jury’s verdict. We overrule the

appellant’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.




                                              ________________________________
                                                        CHARLES KREGER
                                                            Justice

Submitted on May 22, 2013
Opinion Delivered September 4, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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