                                      NO. 07-02-0475-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                        APRIL 20, 2005

                             ______________________________


                                JUSTIN CORPUS, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                           _________________________________

               FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                   NO. 02-01-5222; HONORABLE ANDY KUPPER, JUDGE

                            _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                            OPINION


       Appellant Justin Corpus was convicted by a jury of murder over his plea of not guilty

and sentenced to 40 years in the Institutional Division of the Texas Department of Criminal

Justice. He raises two points of error on appeal. We will affirm the trial court’s judgment.




       1
           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
       Corpus attended a party at a restaurant in Levelland, Texas. A dispute arose

between Terry Richardson and Corpus over music being played at the party. Terry

Richardson placed an African-American rap CD in the CD player. Corpus replaced the CD

with a Hispanic rap CD. There was a brief confrontation among Corpus, Terry Richardson,

and the eventual victim, Jerome Palmer Richardson,2 but the confrontation resolved itself

without further difficulty there.


       Later in the evening, the party moved from the restaurant to a building known as “the

ranch” just outside the city limits. Several guests played pool while others were dancing,

drinking, and listening to music. Terry Richardson testified that Corpus “went to mean

mugging again” and gesturing as if to pick a fight. Corpus uttered something in Spanish to

Terry Richardson and a brawl ensued. Terry Richardson broke a pool stick over his knee

to use as a weapon. The owner of the premises, David Jaramillo, and other guests pushed

Richardson to the floor to keep him from hitting anyone.


       Meanwhile, the victim confronted Corpus and asked if he had a problem, to which

Corpus responded, “No.” Witnesses testified the victim turned away and Corpus said

something to him.3 As the victim turned back around he was stabbed by Corpus. Several

guests at the party took the victim to a local emergency room, where he later died from a

single stab wound that penetrated his heart.




       2
        Terry Richardson and the victim Jerome Palmer Richardson were friends, but not
related.
       3
           The record does not indicate what Corpus said to the victim.

                                              -2-
       A Hockley County grand jury indicted Corpus alleging that he did “intentionally or

knowingly cause the death of an individual namely, Jerome Palmer Richardson, by

stabbing him with a knife.”


       Corpus admitted stabbing the victim, but claimed he acted in self-defense and, at

the punishment stage, while under the influence of sudden passion. He argues on appeal

the evidence is factually insufficient to support the conviction because the jury’s rejection

of his defense of self-defense is contrary to the great weight and preponderance of the

evidence.4 He also contends the evidence is factually insufficient to support the jury’s

finding on the punishment special issue relating to sudden passion.


       Corpus testified at trial that the events surrounding the stabbing happened quickly.

He said the victim walked up to him and asked if “I had a problem.” He replied in the

negative, and “backed up towards the wall.” Terry Richardson was nearby. Corpus feared

for his safety, “to an extent,” and felt threatened. The victim, holding a beer bottle in one

hand, hit Corpus three times in the face, knocking him against the wall and to the floor.

Corpus “came back up” with his knife in his hand and stabbed the victim. He stabbed the

victim because he was scared. After the stabbing, Corpus said, he “got hit a few more

times.” His injuries in the fight included a scrape over his right eye, a swollen lip and a

swollen left eye.




       4
         Corpus does not otherwise challenge the sufficiency of the evidence supporting the
conviction.

                                             -3-
       Self-defense is a justification excluding criminal responsibility and as such is a

defense. Tex. Pen. Code Ann. §§ 2.03(a), 9.02, 9.31 (Vernon 2003)5; Luck v. State, 588

S.W.2d 371, 375 (Tex.Crim.App. 1979); Kizart v. State, 811 S.W.2d 137, 139

(Tex.App.–Dallas 1991, no pet.). See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.

2003). A jury implicitly rejects the defense by finding the defendant guilty. Adelman v. State,

828 S.W.2d 418, 422 (Tex.Crim.App. 1992).


       When a defendant raises a defense, he bears the initial burden to present evidence

raising the defense; however, once the defense is raised, the State bears the burden of

persuasion to disprove the defense. Zuliani, 97 S.W.3d at 594. The State’s burden does

not decrease once the defense is raised; rather the State disproves the defense by proving

its case beyond a reasonable doubt. Id.


       A person is justified in using deadly force against another when and to the degree

he reasonably believes it is immediately necessary to protect himself against the other’s

use or attempted use of unlawful deadly force, § 9.32(a)(3), and if a reasonable person in

the actor’s situation would not have retreated, § 9.32(a)(2). The use of force against

another is not justified in response to verbal provocation alone. § 9.31(b)(1).


       In this factual-sufficiency review we will consider all the evidence in a neutral light,

and determine if the jury was rationally justified in rejecting Corpus’s defense of self-

defense, and in finding guilt, beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477,



       5
       References to sections are to the Texas Penal Code Annotated (Vernon 2003)
unless otherwise noted.

                                              -4-
484-85 (Tex.Crim.App. 2004);6 Zuliani, 97 S.W.3d at 594. There are two ways in which the

evidence may be insufficient. First, when considered by itself, evidence supporting the

rejection of the defense may be too weak to support the rejection beyond a reasonable

doubt. Zuniga, 144 S.W.3d at 484-485. Second, there may be both evidence supporting

rejection of the defense and evidence supporting its acceptance. Id. Weighing all the

evidence, the evidence supporting acceptance of the defense may be strong enough that

the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict

should not stand. Id. at 485. We give proper deference to the jury verdict, and to its

determinations involving credibility and demeanor of witnesses. Id. at 481; Johnson v.

State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407

(Tex.Crim.App. 1997).


       When considering factual sufficiency of the evidence we must address the most

important evidence that the appellant contends undermines the jury’s verdict. Sims v. State,

99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Corpus points to evidence he was attacked and injured first before the stabbing, that

Terry Richardson had broken a pool stick over his knee to use as a weapon and the victim

was carrying a beer bottle, that the victim struck him three times with sufficient force to

knock him against a wall and knock him down, and that he received facial wounds serious

enough to be apparent several hours later when he was booked into jail.


       6
         Corpus argues that the jury’s rejection of his defense is contrary to the great weight
and preponderance of the evidence. The Court of Criminal Appeals clarified the standard
of review for factual sufficiency in Zuniga which was handed down after briefs were filed
in this appeal.

                                              -5-
      Corpus’s contention depends heavily on his version of the stabbing events. He was

the only witness who testified that the victim hit him before the stabbing. Jason Martinez

testified he saw Corpus on the floor with the victim, Terry Richardson and Jonathan

Singleton on top of him, hitting him. Martinez agreed Corpus was defending himself

against their attacks and was acting in self-defense. Martinez also said he saw Terry

Richardson holding a knife, and that Richardson was “flashing a knife” while the party was

at the restaurant. But Martinez did not claim to have seen the stabbing. He placed the

events he was describing near the room’s door, across the room from the location Corpus

described. The events Martinez testified to as easily could have occurred after the

stabbing. He also testified he was a heavy drinker and had a lot to drink.


      Corpus’s version of the stabbing was directly contradicted by the testimony of

Melissa Singleton and Marianne Richardson. Like Corpus, Singleton testified the victim

asked Corpus, “Do you have a problem?” and that Corpus responded, “No.” But Singleton

said the victim then turned to walk away from Corpus, when Corpus made a comment to

the victim, causing him to turn back around, and Corpus stabbed him.            Marianne

Richardson also testified the victim walked away, Corpus said something to him, he turned

back around and Corpus stabbed him.


      Terry Richardson’s testimony, and that of Melissa Singleton, placed him on the other

side of the pool table from Corpus at the time of the stabbing. The testimony Terry

Richardson broke a pool cue over his knee adds little to Corpus’s self-defense theory

because Corpus testified he did not see Richardson take that action. Terry Richardson



                                           -6-
confirmed he had a knife in his possession, but said he did not pull it out until most of the

fighting was finished, and threw it on the floor.7


       Nor do the wounds Corpus sustained require acceptance of his testimony that the

victim hit him before the stabbing. He and other witnesses testified to fighting that occurred

following the stabbing.


       We have carefully reviewed the testimony of all the witnesses who described the

events surrounding the stabbing. Considering all the evidence in the proper light, we

conclude that evidence supporting the jury’s implied rejection of Corpus’s defense justifying

his use of deadly force is not so weak, nor the evidence in favor of the defense so strong,

as to preclude a finding of his guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at

484-485. The evidence supporting conviction is factually sufficient. Corpus’s first point is

overruled.


       Corpus’s second point of error attacks the jury’s rejection of his claim that he acted

under the immediate influence of sudden passion. At the punishment stage, a defendant

convicted of murder may raise the issue whether he caused the death under the immediate

influence of sudden passion arising from an adequate cause. Tex. Pen. Code Ann. §

19.02(d). If he proves, by a preponderance of the evidence, that he did so, the offense of

murder is reduced from a first degree felony to a second degree felony. Id.




       7
           There is no contention Terry Richardson used his knife during the fight.

                                              -7-
       The court’s charge on punishment included a special issue inquiring whether the jury

found by a preponderance of the evidence that Corpus caused the victim’s death under the

immediate influence of sudden passion arising from an adequate cause. “Adequate cause”

and “sudden passion” were defined for the jury in accordance with the statutory definitions.

§ 19.02(a)(1), (2). The jury returned a negative answer to the special issue.


       Although Corpus states his point of error as one challenging the factual sufficiency

of the evidence to support the jury’s answer to the special issue, he correctly points out

that, because he bore the burden of persuasion on the special issue, the applicable

standard of review asks whether the jury’s negative answer is so contrary to the great

weight and preponderance of the evidence as to be manifestly unjust. See Johnson v.

State, 23 S.W.3d at 9-10; Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990);

Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.–Dallas 1998, pet. ref’d).


       Corpus here relies on the same evidence he emphasized in support of his first point

of error. He contends the evidence showed he was first attacked before the stabbing, and

that the victim hit him three times, knocking him against the wall and to the floor. He points

also to the evidence Terry Richardson had broken a pool cue to use as a weapon and that

the victim had a beer bottle in his hand, and to the facial wounds he received. He argues

the evidence presents a picture of one being assailed, with his back to the wall, with no

means of retreat and no choice but to defend himself. He concludes the evidence

establishes he acted out of terror.




                                             -8-
       Like his argument on his first point, Corpus’s contention with respect to sudden

passion depends largely on his version of the events surrounding the stabbing. While the

jury could have accepted his version, the jury also could have found credible the testimony

of two witnesses that the victim started to walk away from Corpus just before the stabbing,

and turned around to face Corpus only in response to a remark Corpus made. As noted,

no witness but Corpus testified that the victim hit him before the stabbing. It was the role

of the jury to evaluate the credibility of the witnesses who presented differing versions of

the events leading to the victim’s death. See Johnson, 23 S.W.3d at 8. After reviewing the

entire record, and giving particular consideration to the evidence Corpus emphasizes, we

do not agree that the jury’s negative answer to the “sudden passion” special issue was

contrary to the great weight and preponderance of the evidence. Corpus’s second point

of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                                  James T. Campbell
                                                     Justice



Do not publish.




                                            -9-
