             PD-1465-15                                           PD-1465-15
                                                 COURT OF CRIMINAL APPEALS
                                                                 AUSTIN, TEXAS
                                              Transmitted 11/11/2015 11:56:45 AM
                                                 Accepted 11/12/2015 2:17:01 PM
                                                                  ABEL ACOSTA
                                                                          CLERK

                      IN THE

     TEXAS COURT OF CRIMINA,L APPEALS



                  No. 14-14-00M4-CR
           In the FourteenthCourtof Appeals
                        of Texas




             Justin RossAllen, Appellant

                         V.


             The Stateof Texas,,Afuellee




     Appollant'sPetitionfor Discre{ionarT
                                        Review




                               JefatdK. Crrabe,r
                               T$B # 08240320
                               917Franklin,Suite510
                               H$rston,Texas77A02
                               Tdl.713-22+232
                               grOberlaw@sbcglobal.net
                               A4omey for Appellant
November 12, 2015
          StatementRegardingOral Argument


Appellantwaivesoral argument.
                  Identitv of Judge.Parties.and Counsel

Pursuantto TEX. R. APP.P. 38.1(a),the followingpersonsareinterested

parties:

Appellant

Mr. JustinRossAllen
TDCJ# 0r960t4s
HollidayUnit
295lH-45 North
Huntsville,TX 77320


Trial Judee

TheHonorableBrad Han
230tr,
    DistrictCourr
1201Franklin
Houston,Texas77002


Attomeysfor State

Ms. SarahRobertsandMs. Lisa Calligan(in trial)
Mr. Alan Curry(on appeal)
HarrisCountyDA's Office
1201Franklin,6ftFloor
Houston,Texas77002


Attomey for Appellant

Mr. GordonDeesand Mr. William Denham(in fial)

Mr. JeraldK. Graber (on appeal)
917 Franklin,Suite510
Houston.Texas77002
                    Table of Contenti

                                          Page

STATEMENTREGARDINGORAL ARGIII\{bNT        2

IDENTITYOFJUDGE,PARTIES,AND CoI.Ii\tSEL   3

TAtsLEOFCONTENTS                          4

INDEXOFAUTI{ORITIES                       5

STATEMENTOFTT{ECASE                       6

STATEMENTOFPROCEDURAL
                    HISTORY               6

APPELLANT'S GROUNDSFORREVIEW              7

REASONFOR REVIEWING GROUNDSFOR REVIEW     7

ARGUMENT                                  8

CONCLUSIONandPRAYERFOR RELIEF             1,4

CERTIFICA]E OF COMPLIA}TCE                T4

CERTIFICATEOF SERVICE                     15
                        Index of Authorities

Cases                                            Pase
Cookv.State,                                     9,lr
    884S.W.2d485(Tex.Crim.App. 1994)

Jaclrsonv.Virginia,                              8 ,1 l
      443U.S.307,318-19,99
                         S.Ct.2781,278F-99,
      6LL.Bd.zds60(re7e)

Leal v. State,                                   9 ,1 1
      800s.w.2d346,348
      (Tex.App.,CorpusChristi lgg},pet ref.)

Lugo-Lugov. State,                             9, LI-12
     650S.W.2d72,81(Tex.Crim.App. 1983)

Saxtonv. State,                                  t2
      804S.W.2d910,911(Tex.Crim.App. tq91)

Thomosv. State,                                  13
    578S.W.2d691,698
                   (Tex.Crim.App. Ig79)




Statutes.
        CodesandRules

Tex.Pen.Codeg 6.03(a),
                    (b)                         9 ,T T

Tex.Pen.Codeg 9.32                              13

Tex.Pen.Code$ 19.02(bX1),
                      (2)                      8,9,11

Tex.R.App.Proc.
              66.3(c)and(D                      8
To the HonorableCourt of Criminal Appeals:


                           Statementof the Case


      Appellantwaschargedby indictmentwith the felonyoffenseof murder.

(CR 10).Appellantentereda pleaof 'onotguilty" andthe casewastried before

a iury. GR III 23). The jury found appellantguilty as chargedin the

indictment.(CR 97). Thereafter,the jrry assessed
                                               a sentenceof 13 yearsin

prison.(RR IV 12). Appellanttimely filed a written notice of appeal.(CR

128). Thetrial courtcertifiedthe defendant's
                                           right of appeal.(cR 130).




                     Statementof ProceduralHistory

      on November10, 2015 a panel of the FourteenthCourt of Appeals

                   opinionaffirmingthetrial court'sjudgmentin this case.
issuedan unpublished

Appellantfilesthis first petitionfor discretionary
                                                 reviewwith this Court.
                     Appellant'sGroundsfor Review


      r) The court of Appealserredin holding the evidencesufficientto
         supportthejury's verdictof guilt for murder.No trier of fact could
         have found that appellanteither intentionallyor knowingly caused
         the deathof the complainantor intendedto causeseriousbodily
         injuy to the complainant.

      2) The Court of Appealserredin holding the evidencesufficientto
         supportthejury's verdictof guilt for murdersinceno rationaltrier of
         fact could havefound beyonda reasonabledoubtthat appellantdid
         not actin self-defense.




          Reasonfor ReviewinsAppellant'sQround for Review


      ThelowerCourt'sruling shouldbe reviewedpursuantto Tex.R. App.

P. 66.3(c)and(f).
                                   Argument

Ground for Review Number One:

      The evidenceis legally insufficient to support the jury's finding that

appellant intentionally or knowingly causedthe death of the complainant,

JamesTaylor. In this case,the evidencedoes not prove beyond a reasonable

doubt that appellant either intentionally or knowingly causedthe death of the

complainant or intended to cause serious bodily injury to the complainant.

Thus, the evidence is insufficient to support the jury's guilty verdict on

murder. The trial judge erred by not granted appellant's motion for an

instructedverdict of not guilty.

      In reviewing the legal sufficiency of evidence,courtsconsiderall of the

evidencein the light most favorableto the verdict and determinewhetherany

rational trier of fact could have found the essentialelementsof the crime

beyonda reasonabledoubt.Jacksonv. Virginia,443 U.S. 307,318-19,99

S.Ct. 2781,2788-89,61L.Ed.2d560 (1979). As chargedin the indictment

and the jury charge, a person can commit murder if he (1) intentionally or

knowingly causesthe death of an individual or (2) intends to causeserious

bodily ittjuty and commits an act clearly dangerousto human life that causes

the deathof an individual.Tex. Pen.Code g 19.02(bX1),(2). An intentional

killing occurswhen the person's consciousdesireor objective is to causethe
deathof another. A knowing kilting occurswhen the personknows that death

is reasonablycertain. Tex. Pen. Code $ 6.03(a), (b). Thus a knowing killing

contemplatesthe commissionof an act that is objectively dangerousto human

rife.Lugo-Lugov. state,650s.w.2d72,81 (Tex.crim. App. 1983).To prove

murder under this theory, the statemust prove that the defendantintentionally

or knowingly engagedin an actthat causedthe death and intendedor knew

that deathwould resultfrom that act.Leal v. State,800s.w.2d346,34g (Tex.

App., Corpus Christi 1990, pet ref.). Intentional and knowing murder under

$19.02(b)(l),(2) is a result-of-conduct
                                     offense.Cookv.State,884S.W.2d485

(Tex. Crim. App. 1994). Thus, the culpable mental state is focused on the

defendant'sintent to achievethe result, ratherthan the defendant'sknowledge

regardingthe conduct.Lugo-Lugov. State,650S.W.2dat 81.

      In this case,at the close of the State's case-in-chief appellantmade a

motion for an instructedverdict of not guilty. The motion was deniedby the

trial judge. (RR IV 80). The trial judge erred by not granting appellant's

motion for an instructedverdict of not guilty sincethe state'scase-in-chiefdid

not prove the essentialelementsof murder. The stateonly proved that (1) the

complainant died from blunt force trauma to his head erndneck area, (2)

appellanttold his fatherthat the complainant"wasn't going to make it to work

the next day becausehe was dead in a blanket in the motel room," and (3)
appellant
       waslocatedandarrested
                           outsideat a nearbyhotel.(RRIII 49,236,

IV 13-14,34).Therewasnoevidence
                              directlyor indirectlylinkingthedeathof

the complainantto appellant.The fact that appellantand the complainantwere

sharinga motel room is not any evidencethat appellantwas the actualperson

who causedthe death.Furthermore,there was no evidencepresentedthrough

appellant'sfather that appellantadmittedto the killing. Thus, the evidenceis

legally insufficient to support a finding that appellant either intentionally or

knowingly causedthe death of the complainantor intendedto causeserious

bodily inj,rry to the complainant,ffid the trial judge erred by not granting

appellant's motion for an instructedverdict of not guilty at the close of the

stateoscase-in-chief.Thus, the Court of Appeals erredin fitndingthe evidence

sufficientto supportthe verdict. Appellant shouldbe acquitrtedby this Court.




Ground for Review Number Two:

      The evidenceis legally insufficient since no rational trier of fact could

have found beyond a reasonabledoubt that appellant did not act in self-

defense.There is no evidencein this caseto disprovethat appellantdid not act

in self-defense.Self-defenseis the only logical explanationfor what happened.

      Appellant assertsthere was insufficient evidence to disprove self-

defensebeyonda reasonabledoubt.The jury was instructedlto acquit appellant



                                      10
unlessit believedbeyonda reasonabledoubtthat he did not act in self-defense.

(CR 89-93). In reviewing the legal sufficiency of evidence,courtsconsiderall

of the evidence in the light most favorable to the ver<lict and determine

whetherany rationaltrier of fact could have found the essentialelementsof the

crime beyonda reasonabledoubt. Jaclxon v. Virginia,44:l U.S. 307, 318-19,

99 S.Ct.2781,2788-89,6I L.Ed.zd 560 (1979). As chargedin the indictment

and the jury charge,a person can commit murder if he til) intentionally or

knowingly causesthe death of an individual or (2) intends to causeserious

bodily injury and commits an act clearly dangerousto hunnanlife that causes

the deathof an individual.Tex. Pen.Code $ 19.02(bX1),t.2). An intentional

killing occurswhen the person's consciousdesireor objective is to causethe

deathof another. A knowing killing occurswhen the personknows that death

is reasonablycertain. Tex. Pen. Code $ 6.03(a), (b). Thus,a knowing killing

contemplatesthe commissionof an actthat is objectively dangerousto human

Iife. Lugo-Lugov. State,650S.W.2d72,81(Tex.Crim. Af,p. 1983).To prove

murder under this theory, the statemust prove that the defcndant intentionally

or knowingly engagedin art act that causedthe death ancl intended or knew

that deathwould resultfrom that act.Leal v. State,800S.\I/.2d346,348 (Tex.

App., Corpus Christi 1990, pet ref.). Intentional and knorving murder under

           (2) is a result-of-conduct
$19.02(a)(1),                      offense.Cookv. State,884S.W.2d485



                                      l1
(Tex. Crim. App. 1994). Thus, the culpable mental state is focused on the

defendant'sintent to achievethe result, ratherthan the defendant'sknowledge

regardingthe conduct.Lugo-Lugov. State,650S.W.2dat 81. Furthermore,in

reviewing the sufficiency of the evidencein self-defensecases,courtsnot only

consider all of the evidence in the light most favorabl: to the verdict to

determine whether any rational trier of fact could have found the essential

elementsof murder beyonda reasonabledoubt but also del.erminewhetherthe

jury could have found beyond a reasonabledoubt that appellantdid not act in

           Saxtonv.State,804S.W.2d910,911 (Tex.Crim. App. 1991).
self-defense.

      In this case,the jury was instructedon the use of dleadlyforce in self-

defense.The jury was instructedproperly that if you find from the evidence,as

viewed from the standpointof the defendantat the time, thertfrom the words or

conduct or both of JamesTaylor it causeda reasonableexpectationor fear of

the imminent commission of the offense of sexual assault at the hands of

James Taylor and that acting under such apprehensionand reasonably

believing that the use of deadly force on his part was immediatelynecessaryto

protect himself against James Taylor's imminent con:unissionof sexual

assault,he struckJamesTaylor with a hammeror an unknown object,then you

should acquit the defendanton the groundsof self-defense;or if you have a

reasonabledoubt as to whetheror not the defendantwas acting in self-defense



                                     12
on said occasion and under the circumstance,then you should give the

defendantthe benefit of that doubt and say by your verdict, not guilty. (CR 89-

93); Tex. Pen. Code $ 9.32. The charge accurately applies the law that

appellantlegally may use deadly force againstthe complairnantto escapefrom

being the victim of a crime before or during the commission of that crime.

Thomasv. State,578S.W.2d691,698 (Tex. Crim. App. 1979).

      Appellant did not have any motive or reasonto strike the complainant

with the hammer other than the fact that he had been se><uallyassaultedthe

                                                           at the time of the
previousday and was in the grips of being sexuallyassaultrsd

killing. A rational jury could not have found beyond il reasonabledoubt

against appellant on the issue of self-defense.Appellant explained that the

complainant, at the time of the killing, was restraining appellant and

attempting to rape him again. (RR IV 146-147). That is the sole reason

appellant grabbedthe hammer and struck the complainant on the neck two

times.His intent was not to kill him. but to defendhimself from anothersexual

assault. A11appellantwanted was for the complainantto get off of him and

not sexually assaulthim again. (RR IV 150). The fact that appellant only

struck the complainant two times with a hammer proves thLathe did not intend

to kill *re complainant,but only actedin self-defense.If erpersonintendedto

kill another, it is highly likely that one would use much more force and



                                      13
violencethanonly two hammerstrikesto the neck.If appellanthadthe intent

to kill, Mr. Taylor would havehad manymore injuriesto his body.Frankly,

thereis no evidencein this caseto disprovethat appellantdid not act in self-

defense.Self-defense
                   is theonly logicalexplanation
                                               for whathappened.

      Therefore,sincethe evidencedid not provebeyonda reasonable
                                                               doubt

that the defendantwas not actingin self-defense
                                              on saidoccasionandunder

the circumstance,
               the defendantis entitledto the benefitof that doubt.Thus,

the Court of Appealserredin finding the evidencesufficientto supportthe

verdict.Appellantshouldbe acquittedby this Court.




                         Conclusionand Praver


      Appellantpraysthatthis HonorableCourtgrantApp,ellant's
                                                           Petitionfor

Discretionary
            Review,reversethe decisionofthe Courtof rA.ppeals,
                                                           andacquit

Appellant.

                                           RespectfullySubmitted,

                                            z/f"*aQ*a

                                           JeraldK. Graber
                                           917 Franklin,Suite510
                                           Houston,Texas 77002
                                           7r3-224-232',.'
                                           Attomeyfor,Appellant

                                    T4
      I, JeraldK. Graber,do certifu that this     on is in compliance with

Rule 9 sincethe entire documentconsistsof       25 words and is type4 using

l4-point font.




partiesvia e-file:

Alan Curry
HarrisCountyDisfict Attorney'sOffice
1201Franklin,6* Floor
Houston,TX 77002

Lisa McMinn
StateProsecutingAttorney
P.O.Box 13406
Austin,Texas 787IL-3046




                                    15
Affirmed and MemorandumOpinion filed November10,:2015.




                                    In The

                   lfisurttenth @uurtuf AffBulr

                            NO. 14-14-00844-CR

                     JUSTIN ROSSALLEN, Appellant

                                      v.
                     THE STATEOF TEXAS,Appellee

                  On Appeal from the 230th District Court
                           Harris County, Texas
                      Trial Court CauseNo. 1407495


                MEMORANDUM                    OPINION


     Appellant appealshis conviction for murder.In two issueshe challengesthe
sufficiencyof the evidenceto supportthe conviction.We affi.rm.

                 I. F.lcruAL ANDPnocnouRAl BAcKGRoIUND

      Appellant and severalco-workerswere stayingat a motel in Houstonwhile
working on a constructionjob. Appellant's father was the supervisor.Appellant
and the complainantwere staying in the samemotel room. On the night of the
offense,appellant,the complainant,anda co-workernamed(SermanAguilar were
working the night shift. In the early morning hours appellantcameto his father's
motel room and told his father that the complainantwould not be reporting for
work the next day becausehe was deadin appellant'smotelroom.

      When Harris County SherifPsdeputiesarrived,appellant'sfather directed
the investigationtoward appellant'smotel room. Inside the deputiesfound the
complainant'sbody wrappedin a blanketon the floor. The deputiesdid not see
appellant,and advisedthe dispatcherthat appellantwas a suspectand that he was
not at the scene.The deputiesalso discoveredsheets,pillowcases,and a pillow
from the bed in the bathtubwith soapywater. The bed that the complainanthad
occupiedduringthe motel stay did not haveany bedding.The otherbed, in which
appellanthad beensleeping,still had beddingon it. The complainanthad wounds
                                            to be stabwounds.
to the backof his neckthat initially appeared

      After getting a searchwarrant,law enforcementofficers searchedthe motel
room and discovereda hammerinside of two trashbags.The:hammerappearedto
have been placed in a clear plastic bag and then the clearrbag containingthe
hammerhad beenplacedin a blackplastictrashbag.The officersdiscoveredblood
on the headboardof the complainant'sbed and on the sheet covering the
complainant'sbody.The complainant'sbodywas fully dresserd.

      Becauseappellanthad left the scene,the Harris Cor.rnfycanine unit was
calledout to help searchfor him. The canineunit reportedto the La Quintamotel,
whereappellanthad last beenseen.Whenthe searchdog alertiedon appellantin the
high grass of a retentionpond near the motel, the canine handler shined his
flashlight and saw appellantlying on the ground. Becausethe dog is trained to
engagewith the suspect,the dog bit appellant.The handlerdiidnot instructthe dog
to release appellant until appellant was handcuffed. Later, appellant received
treatmentat the hospitalfor the dog bite.

      Appellant's Testimony

      Appellant testified that he and the complainanthad been roommatesfor
approximately three weeks. According to appellant, thr: complainant often
mentioned his lack of sexual intercourse,showeredwith the door open, and
masturbated approximately every other day. Appellant testified that the
complainant'sconductmadehim uncomfortable.

      According to appellant,the complainanttook sleepi.ngmedicationevery
night. On the night before the offense,appellantand the complainantreturnedto
the motel from the night shift. The complainanttook a showerwhile appellant
madea sandwich,dranka beer,andbeganto watchtelevisiorr.Appellanttook a sip
from his secondbeer when he decidedto take a shower.Appellant left his open
beer in the room while he was in the shower. After gettir:Lgout of the shower,
appellantdrankthe restof the secondbeerandthendranka third beerbeforegoing
to bed. Appellant testified that he felt more groggy than usual after drinking three
beers.At somepoint after going to bed appellantwas awakenedby a handon his
shoulder.When appellantawoke he discoveredhis underwearand pajamapants
were pulled down to his ankles.He also heardthe complainantclimbing into the
complainant'sbed.Appellantfelt what he thoughtwas semenon his buttocks.

      Appellant woke up late that afternoonand preparedfur the night shift. The
shift endedearly becausea part on the machinethey were using broke. Appellant,
the complainant,and Aguilar returnedto the motel. Appellant askedAguilar for
the keys to Aguilar's van from which appellantretrieved a battery chargerfor a
power tool and a hammer.Appellant returnedto the motel room and placed the
battery charger and hammer on his bed. After approximatelyfive minutes the
complainantgrabbedappellantin a "bearhug," andthe two menfell onto the bed.
The complainant was on top of appellant and began '"humping" appellant.
Appellant grabbedthe hammerand hit the complainanttwioe in the back of the
head, which causedthe complainantto fall onto the bed. Appellant moved the
complainant'sbody to the floor and coveredhim with a sheet.Appellanttook the
other sheetfrom the bed, put it in the bathtub,and turned onLthe water. Appellant
then walked to his father's room and reportedthat the complerinant
                                                                would not be at
work that day becausehe was dead.Appellant'sfathertold appellanthe would call
911. Appellantthen returnedto his motel room, drank approximatelyfour beers,
smokeda cigarette,and placedthe hammerinsidetwo plastic bagsin the trash can
of his motel room. When appellantsaw the police arrive, h,efled to a nearbyLa
Quintamotel,jumpedover a fence,andhid in a retentionponduntil the canineunit
foundhim.

                         appellanttestifiedhe did not rememberclosing the
      On cross-examination
trash bag that containedthe hammer,nor did he remembertaking the pillow from
the bedout of the pillowcaseandplacingthe pillowcaseandprillowin the bathtub.

      State'sRebuttalEvidence

      The forensic sexual assaultnurse examinertestified that she performed a
physicalexaminationon appellantwhile he was sedatedin surgery.tHer physical
examinationrevealedscratcheson appellant'srib cage,but no evidenceof sexual
trauma.After appellantwoke from surgery,the nurseattemptedto obtain an oral
history from appellant.Appellant replied,"I prefer not to talli aboutit, not without
my lawyer present."The nursereportedthat appellant"becamevery tearful," and
statedhe did not want to talk about the alleged sexual assilult at that time. The
nursetestified that it was not uncommonfor a victim of sexualassaultto become
tearful.
      '
          Appellantrequiredsurgeryas a resultof the dog bite.

                                               4
                            II. Issuns Arlo AN.q.Lvsrs

      Appellant presentstwo issueson appeal.He assertsthat the evidenceis
legally insufficientto supporthis convictionin that (1) there is no evidenceof
intent to murder,and (2) the Statefailed to sufficiently refute appellant'sevidence
of self-defense.

      Appellant argues that the trial court erred in den'ying his motion for
instructedverdict becauseat the close of the State'scase-in-chiefthe Statehad
provedonly that (1) the complainantdied from blunt force trauma,(2) appellant
told his father that the complainant"wasn't going to make it to work the next day
becausehe was deadin a blanketin a motel room," and (3) appellantwas located
andarrestedoutsideof the motel.

      A challengeto the trial court'sruling on a motion for an instructedverdictis
in actualitya challengeto the sufficiencyof the evidenceto supportthe conviction.
Cook v. State,858S.W.zd467,470 (Tex. Crim. App. 1993).Therefore,
                                                               when
consideringwhether the trial court erred in overruling a motion for instructed
verdict,the reviewingcourt is not limited to a review of the ,evidence
                                                                     presentedin
the State'scase-in-chief.Id. We will considerappellant'sissuesin light of the
well-established
               standardof review applicableto a challenger
                                                        to the sufficiencyof
the evidenceto supporta conviction.

      In evaluatinga challengeto the sufficiency of the evidencesupportinga
conviction,we view all of the evidencein the light most favorableto the verdict.
Wesbrookv. State,29 S.W.3d 103, 111 (Tex. Crim. App. 2000).The issueon
appealis not whetherwe, as a court, believethe State'sevidenceor believethat
appellant'sevidenceoufweighsthe State'sevidence.Wickerv. State,667 S.W.2d
137,143 (Tex. Crim. App. 1984).The verdict may not be c,verturned
                                                                unlessit is
                       by proof beyonda reasonable
irrationalor unsupported                         doubt.Matsonv. State,8l9
S.W.2d839,846 (Tex.Crim.App. 1991).Thetrier of fact 'oisi
                                                       the solejudgeof the
credibility of the witnessesand of the strengthof the evidence."Fuentesv. State,
991 S.W.2d267,27I (Tex. Crim. App. 1999).The trier of fact may chooseto
believeor disbelieveany portion of the witnesses'testimon;r.Sharpv. State,707
S.W.2d6lI,614 (Tex. Crim. App. 1986).When facedwith conflictingevidence,
we presumethe trier of fact resolved conflicts in favor of the prevailing party.
Turro v. State,867 S.W.2d 43, 47 (Tex. Crim. App. 1993).Therefore,if arry
rationaltrier of fact couldhavefoundthe essentialelementsof the crimebeyonda
         doubt,we must affirm. McDuff v. State,939 S.W.zd 607,614 (Tex.
reasonable
Crim. App. 1997).

           A. Is the evidencesufficient to support the jury's finding that
      appellantintendedto kill the complainant?
      A personcommitsthe offenseof murder if he intentionallyor knowingly
causesthe deathof an individual or intendsto causeseric,usbodily injury and
commits an act clearly dangerousto human life that calses the death of an
                                                     A personactswith
                                         (2)(West20l1).
individual.Tex. PenalCodeAnn. $ 19.02(bX1),
intent"with respectto the natureof his conductor to a resultof his conductwhenit
is his consciousobjectiveor desireto engagein the conductlor causethe result."
Tex. Penal Code Ann. $ 6.03(a) (West 20Il). A person acts knowingly with
respectto his conductwhen that personis awarethe conductis reasonablycertain
to causethe result.Tex. PenalCodeAnn. $ 6.03(a).

      The Stateinitially arguesthat appellant'sfirst issue should be overruled
                                                               Becausean
becauseappellanttestifiedhe committedthe offensein sell'-defense.
                  is an intentionalact,the Statearguesappellantcannotchallenge
act of self-defense
the sufficiencyof the evidenceto supportintentto kill the complainant.The Court
of Criminal Appealsof Texas,however,has held that the PenalCode doesnot
require that a defendantintend the death of an attacker for the appellantto be
justified in using deadlyforce in self-defense.
                                             Alonzo v. Stctte,353S.W.3d778,
783 (Tex. Crim. App. 2011).Therefore,appellantmay arguethat he actedin self-
defense,but, in doingso, did not intendto kill the complainant.

      Intent, being a questionof fact, is in the sole purview of the jury. Brown v.
Stote,122S.W.3d 794,800(Tex.Crim.App. 2003).A jury rnayrely on collective
commonsenseand commonknowledgewhen determiningintent.Ramirezv. State,
229 5.W.3d725,729(Tex.App.-San Antonio2007,no pet.).Intentalsomay be
infened from the circumstantialevidencesurroundingthe incident,which includes
acts, words, and conductof the accused.See Tex. Code Crim. Proc. Ann. art.
38.36(a)(West 2005);Patrick v. State,906 S.W.zd 481,tl87 (Tex. Crim App.
lee5).
      Thejury heardevidencethat duringthe day,beforethe,complainant'sdeath,
appellantretrieveda hammerfrom Aguilar's truck. Appellant admittedhitting the
complainantin the back of the headwith a hammer.Appellant testified that after
he struck the complainantwith the hammer,he strippedthe sheetsfrom the bed
and placed them in the bathtub with soap and water. Appellant also admittedhe
wrappedthe hammerin two trash bags and placedthem in the motel room trash
bin. Appellantthen fled the motel wherethe complainantwas killed and hid in a
retentionpond until a Sheriff s office canineunit found him. "Attempts to conceal
incriminating evidence,inconsistentstatements,and implaursibleexplanationsto
                                                                    of guilt."
the police are probativeof wrongful conductand are also circumstances
                                                    Thejury couldhave
Guevarav. State,152S.W.3d 45,50 (Tex.Crim.App. 2004)t.
infened intent from the evidenceof appellant's(1) acquisitionof the murder
weapon earlier in the day, (2) attemptsat concealment,and (3) flight from the
scene of the offense that he intended to kill the complainant.See id. Finding
sufficient evidencethat appellantintentionallycommittedan act clearly dangerous
to humanlife, we overruleappellant'sfirst issue.

           B. Is the evidencesufficient to support the jury's rejection of
      appellant'sself-defense
                            theory?
      In his second issue appellantarguesthere was insufficient evidenceto
"disprove" self-defensebeyonda reasonabledoubt.The State,however,was not
requiredto "disprove" self-defense.Becauseappellantraisedthe issue of self-
defense,the Statehad to prove the elementsof the offensebeyond a reasonable
doubt, and the State had to persuadethe jury that appellantdid not kill the
                         SeeZuliani v. State,97 S.W.3d589, 594 (Tex. Crim.
complainantin self-defense.
App. 2003).A defendanthasthe burdenof producingsomeevidenceto supporta
                    Zuliani, gT S.W.3dat 594.Oncethe defendantproducesthat
claim of self-defense.
evidence,the Statethen bearsthe burden of persuasionto disprovethe raised
defense.Id. The burden of persuasiondoes not require the State to produce
evidence;it requiresonly that the Stateprove its casebeyonda reasonable
                                                                      doubt.
Id. A determination of guilt by the factfinder implies a finding against the
defensivetheory.Id.

      A personis justified in using deadlyforce againstanotherwhen and to the
                                                                        to
degreethe personreasonablybelievesthe deadlyforce is immediatelynecessary
prevent the other's imminent commissionof sexual assault.Tex. Penal Code
g 9.32(a)(2XB)(West 2011).In resolvingthe sufficiency-of-the-evidence
                                                                   issue,we
look not to whetherthe Statepresentedevidencethat refuted appellant'sself-
defensetestimony,but ratherwe determinewhetherafter viewing all the evidence
in the light most favorableto the prosecutioo,ffiy rational trier of fact would have
found the essentialelementsof murder beyonda reasonabledoubt and also would
have found againstappellanton the self-defenseissuebeyon.da reasonabledoubt.
SeeSaxtonv. State,804 S.W.2d 910,914 (Tex. Crim. App. 1991);Hernandezv.
State,309S.W.3d661, 665 (Tex. App.-Houston [14th Diist.]2010,pet. ref d).
                                        with the physicalevidenceat the
Defensiveevidencethat is merelyconsistent
scene will not render the State's evidence insufficient rsincethe credibility
determinationof suchevidenceis solelywithin the jury's provinceandthe jury is
freeto acceptor rejectthe defensiveevidence.Saxton,804 S.'W.2dat914.

      Appellant arguesit was unreasonablefor the jury to have rejectedhis claim
of self-defensebecausehe had no motive to kill the cormplainant.
                                                              Appellant
contendsthat the only reasonhe struck the complainantwitlh the hammerwas in
self-defense.The jury also heard evidencethat appellantretrievedthe hammer
from his co-worker'struck and placed it on the bed in the motel room. The
complainantwas struck in the back of the head, which is inconsistentwith
appellant's testimony that the complainant approachedhim from behind.
Moreover, the physical evidencerevealedblood spatteron the complainant's
headboard,but not on the bed in which appellanthad beensleeping.The bedding
was still on appellant'sbed,but had beenremovedfrom the complainant'sbed and
placedin the bathtub.

                               in the evidenceandthe witnesses'testimony
      Any allegedinconsistencies
                                                         SeeLanconv. State,
concernthe credibilityandweightto be giventheir testimony,,
253 S.W.3d 699,705-07(Tex.Crim. App. 2008).To the extentthe testimonyis
inconsistent,thejury, asthe trier of fact, had the ultimateauthLority
                                                                    to determine
the credibilityof witnessesandthe weightto be givento their testimony.SeeTex.
                                                        (Tex.Crim.
CodeCrim.Proc.art.38.04;Garciav.State,919S.W.2d370,,382n.6
                             in the evidenceshouldbe resolvedin favor of the
App. 1996).Any inconsistencies
jury's verdictin a sufficiencyreview.Morenov. State,755S.W.2d866,867 (Tex.
Crim.App. 1988);Draperv. State,335S.W.3d 412,415(Te>r.
                                                    App.-Houston
      [14thDist.] 2}tl,pet. refld).

      Consideringall of the evidencein the light rrlostfavorableto the verdict, we
conclude the evidence is sufficient to support rtlrejury's implicit rejection of,
appellant'sclaim of self-defenr..Wr ovemrleappellant'ssecondissue.

      Having overruledall of appellant'schallengeson appeal,we affirm the trial
court'sjudgment.




                                      lsl    KemfihompsonFrost
                                             ChiefJlustice



Panelconsistsof Chief JusticeFrost and JusticesC[ristopher andDonovan.
Do Not Publish- Tex. R. App. P. 47.2(b).




                                        10
