      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00108-CR



                                   Verten Dodson, Appellant

                                                v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
     NO. D-1-DC-07-300805, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Verten Dodson guilty of murder. See Tex. Penal Code

Ann. § 19.02(b) (West 2003). The district court sentenced Dodson to thirty years’ imprisonment.

On appeal, Dodson argues that the evidence is factually insufficient to sustain the jury’s

verdict in the face of evidence presented by Dodson that he acted in self-defense. See id. § 9.32

(West Supp. 2008). We affirm the judgment of conviction.


                                        BACKGROUND

               Around noon on April 7, 2007, Dodson, his friend Raul Olalde, and Betty Olalde—

Raul’s mother and Dodson’s girlfriend—were driving through a residential neighborhood in

north Austin. As they approached the intersection of Hunter’s Chase and Colony Creek, Dodson

shot Raul Olalde in the back. After the shooting, Betty Olalde stopped the car in the middle of the
road. According to eye witnesses in an oncoming car, Raul exited the front passenger seat and

walked over to the sidewalk before collapsing on the ground. Betty then stepped out of the

driver’s seat, screaming and hysterical. A few seconds later, Dodson climbed out of the back seat,

walked calmly away from the car, glanced back at Raul, slipped through a gap in the fence, and

walked away along a creek bed. A man who came upon the scene shortly thereafter administered

CPR to Raul and emergency personnel were called. Raul was taken to a local hospital, where he was

pronounced dead on arrival.

               The events immediately prior to the shooting are largely disputed. Betty Olalde

testified that as they were driving, Raul asked Dodson if there was any crack in the car for Raul to

smoke. Dodson indicated that there was a rock of crack in the console between the front seats.

According to Betty, Raul then looked for a soda can he could use to smoke the crack and as he lit

it and began to smoke, Dodson shot Raul.1

               Dodson disputed Betty’s version of these events. Dodson testified that, as Raul got

in the car shortly before noon on April 7, he was acting “kind of jerky” and seemed angry.

According to Dodson, Raul began digging around in the car and then made a sudden move towards

his lap, which Dodson interpreted to be reaching for a gun. Dodson knew Raul owned a gun,

because Dodson himself had stolen the gun from a vehicle a few days before the shooting. Dodson

at first testified that he gave Raul the gun, and then later said that Raul “just snatched it” from him.



       1
          The crime scene photographs of the car show a soda can on the floorboard and a lighter
sitting on the dashboard. Betty testified that she thought the lighter on the dashboard was hers and
that Raul had his own lighter. However, the police investigators who searched the car did not find
a second lighter nor did they seize crack cocaine or any other drug during the car’s inventory.

                                                   2
According to Dodson, Raul always carried his gun in either the pocket of his cargo shorts or in his

waistband. Because Raul was not wearing cargo shorts that day, Dodson said he believed Raul’s gun

was at his waist, and thought Raul was reaching for it in order to shoot Dodson. Dodson admitted

that there was a possibility that Raul carried a cell phone at his waist, but maintained that he was

certain that Raul was reaching for a gun when Dodson shot him. Dodson claims he then shot Raul

in self-defense. After the shooting, police found Raul’s gun zippered shut inside a backpack, which,

according to Betty, Raul had been holding in his lap. Dodson testified, however, that he was not

aware of this fact and sincerely and reasonably believed the gun was at Raul’s waist.

       Dodson explained his purported belief that Raul was reaching for his gun in order to kill

Dodson by pointing to events in the weeks leading up to the shooting. Dodson testified that his

relationship with Raul had become strained because Raul was upset about Dodson dating his mother

Betty and was frustrated that Betty seemed to choose Dodson over Raul. Raul’s wife, Lydia Olalde,

also testified to Raul’s concern that his mother chose Dodson over him. Dodson testified that Raul

claimed to have taken a life insurance policy out on Dodson and to have opened a bank account in

Dodson’s name. Dodson testified that he thought someone who took out a life insurance policy was

“waiting for you to die so they can get some money.” Betty and Lydia shared the belief that Raul

had taken out a life insurance policy on Dodson, though they each heard this through Dodson, not

Raul. Betty testified that Dodson told her about this policy, and Lydia testified that she learned of

it from Betty after Raul’s death. Dodson also claimed to have been told by Betty that Raul had

threatened to kill Dodson about a week before the shooting.




                                                 3
               Dodson testified that he was afraid Raul’s anger and frustration would lead to

violence because Raul had a violent track record with his family and friends. According to Dodson,

Raul had tried to rape his younger sister, Vanessa Olalde, and had hit and bruised Betty when she

tried to stop him. Dodson claimed that on a different occasion Raul had used his fingers to sexually

penetrate Vanessa, that he regularly sent her to beat up women who owed him money for drugs, and

that he had once slapped her across the face, causing her to bleed. Dodson also testified that he had

seen Raul chase a friend with a knife.

               Lydia Olalde confirmed the tension between Raul and Dodson. Her characterization

of it, however, was significantly different. According to Lydia, Dodson blamed Raul for a prior

arrest and conviction for a theft the two men committed together. Dodson believed that Raul had

told the police about Dodson’s involvement in that theft and suspected Raul of speaking to the police

about their more recent car burglaries in an attempt to send Dodson back to jail.2

               On April 6, 2007, the night before the shooting, the tension between Dodson and Raul

appeared to be coming to a head. Dodson testified that he and Raul borrowed Betty’s car and drove

around together, burglarizing cars and smoking crack—and arguing much of the time. According

to Betty, who joined them early the next morning as they drove around north Austin, at one point

Dodson accused Raul of being greedy and then threatened Raul with a gun. Betty testified that



       2
          The notes taken by the police detective who interviewed Lydia said that Lydia told the
detective that Raul suspected Dodson of trying to send Raul to jail, rather than the other way around.
Lydia maintained that the police detective had gotten that statement backwards. When first asked
about this possibility, the detective testified that she didn’t believe she had made a mistake. But on
cross examination, after reading the note in the context of the previous sentence, which stated that
Dodson had pulled a gun on Raul, the detective changed her mind and testified that she had probably
inadvertently switched the names in her notes.

                                                  4
Raul’s reaction to Dodson’s threat was to exit the car and walk off by himself.                Dodson

acknowledged that he and Raul had argued and that Raul had walked away from the car, but testified

that he did not recall threatening Raul.

                After Raul walked away, he went to the hotel where his wife Lydia and his children

were staying. While there, Raul spoke with Lydia about his conflict-filled relationships with

Dodson, his mother, and Lydia. According to Lydia, Raul told her that Dodson had pulled a gun on

him and accused him of trying to send Dodson back to jail. Lydia testified that Raul was upset that

his mother had watched this happen and had done nothing to intervene on Raul’s behalf. As they

spoke about their own troubled relationship, Raul told Lydia that if he could just shoot himself and

her, then all of their troubles would go away. Lydia testified that this statement did not frighten her;

she simply took it as evidence that Raul was feeling sad.

                While Raul was at the hotel with Lydia and the children, Betty and Dodson drove to

Pflugerville to Dodson’s sister’s house so that Dodson could pick up his social security card and

identification card. According to Dodson, he needed those items to look into the bank account that

Raul allegedly opened in Dodson’s name. As Dodson and Betty were driving back to north Austin,3

Betty received a call from Raul, who asked her to bring some clothes to his hotel room. Betty

testified that Raul was still angry with Dodson and asked her to not bring Dodson; however, she and

Dodson went to the hotel together anyway.




        3
          Dodson testified that he and Betty were driving to a bank to check on the supposed bank
account that Raul had opened. Betty testified that Dodson had wanted to go by the bank to check
on the supposed life insurance policy, but that she had refused, and that they were not headed to any
specific place when Raul called.

                                                   5
                  When they arrived at the hotel, Betty went inside to give Raul his clothes. Betty

testified that Raul then asked her to give him a ride. When Betty returned to the car, she told Dodson

that Raul was coming with them. She asked Dodson if he wanted to continue to drive or if he

wanted her to drive. Dodson told her to drive. Raul then came out to the car, carrying his daughter’s

backpack with his gun inside.4 Dodson moved to the back seat and told Raul to sit in the front

passenger seat.

                  They had only driven a few miles when Dodson shot Raul. When police first arrived

on the scene and questioned Betty, she told them that she did not know the person who had shot her

son. She said they had picked up an unknown hitchhiker who had then shot her son and walked

away. She also told the police she was unable to describe the hitchhiker or even tell them his race.

After the police found Dodson’s identification card on her, Betty admitted that he had been the

shooter. Betty testified at trial that she had been protecting Dodson because she loved him and did

not want to be alone.

                  Dodson was arrested on April 9, 2007. The booking officer testified that Dodson told

him that “he didn’t understand why he was in jail, he did a good thing taking him out. He told me

that someone was selling a lot of drugs, kidnapping kids, and he did it and he’ll take it.” The officer

further testified that Dodson said he was “the only one who could get close enough” and that Dodson

did not make any statements indicating he was afraid of Raul or had shot Raul in order to protect

himself or anyone else.


       4
           Betty testified at trial that she did not know Raul had his gun with him. This testimony
contradicted her testimony before the grand jury. Defense counsel drew this contradiction to the
jury’s attention. Once Betty finished testifying about this issue before the trial court, she was
arrested, outside the presence of the jury, on suspicion of perjury.

                                                   6
               The jury found Dodson guilty of murder. See Tex. Penal Code Ann. § 19.02(b). The

trial court sentenced him to thirty years’ imprisonment.


                                   STANDARD OF REVIEW

               Evidence is factually insufficient when it is so weak that the verdict seems clearly

wrong and manifestly unjust, or when the verdict is against the great weight and preponderance of

the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In reviewing for factual sufficiency, we consider

all the evidence in a neutral light, while giving due deference to the jury’s determination.

Sims v. State, 99 S.W.3d 600, 604 (Tex. Crim. App. 2003) (reviewing court must consider all

evidence, including that which is most important to appellant’s claim); Vasquez v. State, 67 S.W.3d

229, 236 (Tex. Crim. App. 2002) (reviewing court must view evidence in neutral light and be

appropriately deferential to jury). The jury is the sole judge of the credibility of the witnesses and

the weight to be accorded their testimony. Vasquez, 67 S.W.3d at 236. We may not reweigh the

evidence and substitute our judgment for that of the jury. Watson, 204 S.W.3d at 417; King v. State,

29 S.W.3d 556, 563 (Tex. Crim. App. 2000).


                                          DISCUSSION

               In his sole point of error, Dodson argues that the evidence was insufficient to prove

beyond a reasonable doubt that he did not act in self-defense. At trial, Dodson sought to show that

he was justified in using deadly force because he reasonably believed that deadly force was




                                                  7
necessary to protect himself against attempted unlawful deadly force by Raul. See Tex. Penal Code

Ann. § 9.32.5

                The issue of self-defense is a fact issue to be determined by the jury. Saxton v. State,

804 S.W.2d 910, 913 (Tex. Crim. App. 1991). A defendant raising the issue of self-defense has the

burden of producing evidence to support that defense. Zuliani v. State, 97 S.W.3d 589, 594

(Tex. Crim. App. 2003). The State then has the burden of persuasion to rebut the defense; however,

the State does not have a burden of production of evidence. Id. When a jury returns a guilty verdict,

it implicitly rejects the defendant’s theory of self-defense. Id.

                When a defendant challenges the factual sufficiency of the rejection of a defense, the

reviewing court applies the ordinary factual-sufficiency standard. Id. First, we review all of the

evidence in a neutral light and ask whether the State’s evidence of guilt is so weak as to make the

guilty verdict clearly wrong or manifestly unjust. Id. Then, we weigh the State’s evidence against



        5
         Under the penal code, “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.” Tex. Penal Code Ann. § 9.31(a)
(West Supp. 2008). Deadly force is justified only if the actor reasonably believes the deadly force
is immediately necessary “to protect the actor against the other’s use or attempted use of unlawful
deadly force.” Id. § 9.32(a)(2)(A) (West Supp. 2008).

        In determining whether the actor reasonably believed that deadly force was necessary, the
jury may consider whether the actor failed to retreat unless the actor “has a right to be present at the
location,” did not provoke the victim, and was not engaged in criminal activity at the time the deadly
force was used. Id. § 9.32(c),(d).

       Force is not justified “in response to verbal provocation alone” nor is it justified “if the actor
sought an explanation from or discussion with the other person concerning the actor’s differences
with the other person” while the actor was unlawfully carrying a handgun. Id. § 9.31(b)(1),
(b)(5)(A), § 46.02 (West Supp. 2008).

                                                   8
the evidence presented by the defense and ask whether the verdict of guilty is against the great

weight and preponderance of the evidence. Id.

                There was no dispute that Dodson shot Raul. The State presented testimony by

Betty Olalde that when Dodson shot Raul, Raul was in the process of smoking crack. Betty testified

that Raul and Dodson were not arguing and that Raul made no threats to Dodson. The State also

presented evidence that Dodson was angry with Raul, had threatened him in the past, and

accompanied Betty to the hotel to meet Raul, even though he knew Raul did not want him to come.

The fact that Raul was shot in the back and the testimony by impartial eye witnesses that Dodson

exited the vehicle from the rear seat and then walked calmly away from the scene just moments after

having shot Raul provide additional support for a murder conviction. Thus, the State’s evidence of

guilt is not so weak as to make the guilty verdict clearly wrong or manifestly unjust.

                Neither is the verdict against the great weight and preponderance of the evidence.

While Dodson’s testimony raised the possibility of self-defense, his version of events was

contradicted by Betty Olalde’s testimony. Dodson testified that he shot Raul after Raul reached for

his lap, whereas Betty testified that Raul was in the process of smoking crack cocaine and had just

lit the soda can he held in one hand with the lighter he held in the other hand. The police did not find

any crack cocaine in the car when they searched the car. When Raul exited the car, however, the

backpack he had been holding fell to the ground (and was later picked up by Betty and thrown into

the backseat of the car), and the jury could have reasonably concluded that the rock of crack cocaine

fell to the ground, as well, and was never noticed by the police. In addition, the toxicology report

on Raul revealed that he had cocaine in his blood stream, which indicates cocaine use during the last

one or two days of his life.


                                                   9
                Further, Dodson’s testimony that Raul had threatened him in the past and was angry

with Dodson was countered by the testimony of Betty and Lydia Olalde that it was in fact Dodson

who was angry with Raul and had threatened him. Finally, the booking officer’s testimony that

Dodson had told him that “he did a good thing taking [Raul] out,” and that Dodson did not tell the

booking officer that Raul was reaching for his gun or that he was afraid of Raul, also undermines

Dodson’s self-defense argument.

                In the end, this case comes down to conflicting witness testimony, and it is for the

factfinder—the jury in this case—to resolve conflicts in evidence. Vasquez, 67 S.W.3d at 237.

Dodson argues that Betty Olalde was not a credible witness and cites to the fact that she was arrested

for perjury because parts of her testimony before the trial court contradicted her testimony before the

grand jury. However, the jury, as the trier of fact, is the sole judge of the credibility of a witness’s

testimony and may believe or disbelieve any part of a witness’s testimony. Johnson v. State,

23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Saxton, 804 S.W.2d at 914 (Tex. Crim. App. 1991). The

jury was presented with Betty’s conflicting grand jury testimony about whether she knew that Raul

had a gun when he got in the car. The jury was then free to assess her credibility and judge for itself

whether to believe her version of the events or Dodson’s.6 Based on the evidence presented, the jury

found Dodson’s theory of self-defense unpersuasive.7


        6
         The jury was also presented with impeachment evidence against Dodson. Dodson admitted
to seventeen prior misdemeanor convictions and four prior felonies, including burglary of a
habitation with intent to commit assault. Dodson also admitted to being a regular user of crack
cocaine, to burglarizing cars and selling crack to support his habit, to smoking crack in the hours just
before the shooting took place, and to having impaired judgment when high.
       7
         The jury may have found Dodson’s theory unpersuasive because they did not believe his
version of the events, and instead believed Betty. Alternatively, the jury may have believed Dodson,
but found that Raul reaching for his lap would not have created a reasonable apprehension of deadly
harm in a reasonable person in Dodson’s position.

                                                  10
               After reviewing all the evidence in a neutral light, we cannot say that the evidence

is so weak as to make the jury’s verdict clearly wrong or manifestly unjust, nor can we say that the

jury’s verdict is against the great weight and preponderance of the evidence. We overrule Dodson’s

point of error and affirm the judgment of conviction.


                                         CONCLUSION

               Because the evidence was factually sufficient to support the jury’s verdict, we affirm

the judgment of conviction.

                                              __________________________________________

                                              Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: November 7, 2008

Do Not Publish




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