                                   NO. 12-14-00011-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

MARQUEL JERMON SCOTT,                              §      APPEAL FROM THE 7TH
APPELLANT

V.                                                 §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Marquel Jermon Scott appeals his conviction for murder.          In one issue, Appellant
contends that the evidence is insufficient to support the jury’s implied rejection of his self-
defense claim. We affirm.


                                           BACKGROUND
       On November 26, 2012, Appellant, his fiancé, and three of their friends were socializing
in the Hyenas Motorcycle Clubhouse. John Woods entered Hyenas and likewise was socializing
with some of his friends, including Keeston Fields.
       Appellant and Woods eventually engaged in a verbal altercation. As their argument
escalated, a crowd gathered around them. Eventually, Woods struck Appellant. In response,
Appellant pulled a gun and shot into the ground. As the crowd dispersed, Appellant shot at least
one additional time.
       Woods raced out of Hyenas, and Appellant chased after him. Appellant fired his gun at
least two more times and then got in his vehicle and sped away. Appellant disposed of his gun,
parked his car, secured a ride in another vehicle, and left the area.
       The bullet from one of Appellant’s shots struck Woods in the back. The bullet from
another of the shots struck Fields in the chest. Fields died from his injuries, and Woods
recovered from his.
       Appellant was charged with the murder of Fields and the aggravated assault of Woods.
Appellant turned himself in to the police and assisted in the retrieval of his gun. The murder
charge proceeded to trial, and Appellant argued that he was not guilty because he fired his gun
only in self-defense. The jury found Appellant guilty of murder and sentenced him to eighty
years of imprisonment. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       Appellant contends that the evidence is insufficient to support a finding beyond a
reasonable doubt that he was not acting in self-defense. Specifically, Appellant argues that no
rational factfinder could have concluded beyond a reasonable doubt that Appellant acted in any
manner other than in self-defense.
Standard of Review and Applicable 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, 61 L. Ed. 2d 560 (1979); 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 a 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 of 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 also
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



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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 the evidence is conflicting, we generally defer to the weight
the jury gave to the contradictory testimonial evidence. See Bundy v. State, 280 S.W.3d 425,
435 (Tex. App.—Fort Worth 2009, pet. ref’d) (finding evidence factually sufficient in face of
contradictory testimonial evidence).
         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 protect the actor
against the other’s use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN.
§§ 9.31(a), 9.32(a)(2) (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.
2014).
Application
         Several individuals witnessed the altercation that resulted in Fields’s death and testified at
trial. All of them testified that Woods and Appellant had an altercation, that Appellant fired a
gun multiple times, and that Appellant was the only one to fire a gun. However, their testimony
varied widely in several important particulars.
         Some of the eyewitnesses claimed that Woods punched Appellant only once. Others
claimed that he punched Appellant several times. Some claimed that Fields was not involved in
the altercation between Woods and Appellant. Others claimed that Fields was beside Woods
during the altercation. Some claimed that only Woods punched Appellant. Others claimed that
Woods’s friends also punched Appellant. One claimed that Woods did not punch Appellant, but
instead only a friend of Woods punched Appellant. Some claimed that no one jumped on
Appellant.    Others claimed that several people jumped on Appellant.             Some claimed that
Appellant fired a warning shot into the ground and that Woods and his friends then backed away
from him. Others claimed that Woods and his friends remained close to Appellant even after
Appellant fired the first shot. Most claimed that only Appellant had a gun. Appellant claimed
that Woods had a gun, but conceded that Woods never brandished the weapon.




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         Appellant further contended that Fields punched him even after Appellant fired a warning
shot into the ground. He also testified that he fired one shot into the ground, and then he fired
the second shot at Woods, but hit Fields instead. Appellant admitted that he shot Fields in the
chest and Woods in the back after he fired the initial warning shot. But he contended that he was
still scared of Fields and Woods when he shot them.
         The jury also considered physical evidence. When Appellant was arrested, the State
photographed him.          This photograph, taken three days after the altercation, showed that
Appellant had a “busted” lip but no bruising evident on his face.           Additionally, the State
established that the bullet that struck Fields was fired from Appellant’s gun. Finally, the coroner
noted that Fields had abrasions on his hand that were consistent with either having punched
someone or having fallen on the ground.
         It was the province of the jury to determine which of this conflicting testimony to credit
and which to reject. See Bundy, 280 S.W.3d at 435. From the testimony, the jury reasonably
could have determined that (1) Woods punched Appellant once, (2) Appellant responded to the
punch by Woods by drawing a gun and firing a warning shot into the ground, (3) Woods and
everyone else backed away from Appellant so that Appellant was not under a threat of any harm,
and (4) Appellant then fired the gun again and hit Fields, resulting in Fields’s death.
         After viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found the essential elements of the offense and also could have found
against Appellant on his self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d
at 914. Therefore, we hold that the evidence is sufficient to support the jury’s implicit rejection
of Appellant’s self-defense claim. See id. We overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                 BRIAN HOYLE
                                                                  Justice

Opinion delivered April 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



                                             (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2015


                                         NO. 12-14-00011-CR


                                  MARQUEL JERMON SCOTT,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0154-13)

                        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.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
