                                  NO. 12-17-00132-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 MICHAEL GUISTO CROMEY, JR.,                      §       APPEAL FROM THE 7TH
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Michael Guisto Cromey, Jr., appeals his conviction for aggravated assault. Appellant
raises three issues on appeal. We affirm.


                                            BACKGROUND
       Tyler Police Department Officers April Molina and Jeremy Thompson responded to an
emergency call, and a man later identified as Appellant approached the officers while shirtless and
covered in blood. He stated his father hit him in the head, so Appellant struck him with
“something.” Shortly thereafter, Appellant further explained to the officers that his wife’s dog bit
him, he swung at the dog, Appellant’s father “came after [Appellant],” and that Appellant then
swung the “car . . . car whatever” while waving his arms in a striking motion. He also expressed
concern for his father. The officers made their way to an apartment and observed large quantities
of blood on the wall and floor of the stairwell and breezeway area near the apartment door, along
with a metal vehicle bike rack pipe covered in blood.
       Appellant’s wife and his father were inside the apartment. Appellant’s father had a large
laceration on his head, and his face, arms, and clothes were covered in blood. He stated that he
suffered the injury because Appellant struck him with the bicycle rack pipe. The officers learned
that Appellant’s father leased the apartment, and that he allowed Appellant and his wife to stay
there temporarily for a short period of time. Appellant’s father was transported to the hospital and
received several sutures and pain medication. Based on their investigation, the officers arrested
Appellant.
       Appellant was later indicted for aggravated assault with a deadly weapon, with the
punishment level enhanced to that of a first-degree felony due to Appellant’s prior felony
conviction. Appellant pleaded “not guilty” to the offense and the matter proceeded to a jury trial.
The primary witnesses included the arresting officers, Appellant’s father, and Appellant’s wife.
Appellant’s wife and father had conflicting testimony concerning the events leading to the injuries
of Appellant’s father. The jury ultimately found Appellant guilty of the offense, and after a
punishment hearing, sentenced him to seventeen years of imprisonment.1 This appeal followed.


                                      SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends the evidence is insufficient to support the jury’s
implicit rejection of his deadly force self-defense claim.
Standard of Review
       We review sufficiency challenges to the jury’s implicit rejection of a self-defense claim
under the Jackson v. Virginia standard. See Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct.
2781, 2788–89, 61 L. Ed. 2d 560 (1979)). The jury implicitly rejects a defendant’s self-defense
claim if it finds the defendant guilty of the underlying offense. Saxton v. State, 804 S.W.2d 910,
914 (Tex. Crim. App. 1991). Whether the defendant acted in self-defense is a fact issue to be
determined by the jury, and the jury exclusively determines the weight and credibility of the
evidence in support of a self-defense claim. Smith, 355 S.W.3d at 146. Under this standard, we
defer to the factfinder’s resolution of conflicting inferences in the record. Jackson, 443 U.S. at
326, 99 S. Ct. at 2793. In assessing a self-defense claim, the jury may consider the totality of the
circumstances leading up to, during, and after the use of force. See Whipple v. State, 281 S.W.3d
482, 497–98 (Tex. App.—El Paso 2008, pet. ref’d). Defensive evidence that is merely consistent
with the physical evidence at the scene 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. Saxton, 804 S.W.2d at 914.

       1
           Appellant pleaded “true” to the enhancement allegation in the indictment.


                                                         2
       The defendant bears the burden of producing some evidence to support his self-defense
claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces
that evidence, the State then bears the burden of persuasion to disprove the defense. Id. This
burden of persuasion does not require the State to produce evidence to disprove the defense; it
must only prove its case beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661,
665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also McClesky v. State, 224 S.W.3d
405, 409 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Thus, when deciding whether the
evidence is sufficient to support the jury’s rejection of a claim of self-defense, the task of the
appellate court is to “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, 804 S.W.2d at 914.
Applicable Law
       The Texas Penal Code’s justification for self-defense focuses on the existence of some
necessity, the circumstances under which the force was used, the degree of force used, and the type
of conduct against which the force was used. Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—
Tyler 1998, no pet.). A person is justified in using force against another when and to the degree
that he reasonably believes the force is immediately necessary to protect against the other person’s
use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a) (West 2011). If a person
is justified in using force under Section 9.31, he may use deadly force when and to the degree he
reasonably believes the deadly force is immediately necessary to protect himself against the other
person’s use or attempted use of unlawful deadly force. Id. § 9.32(a) (West 2011). A
“[r]easonable 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. 2018). “Deadly force” is force
“intended or known by the actor to cause, or in the manner of its use or intended use is capable of
causing, death or serious bodily injury.” Id. § 9.01(3) (West 2011). The amount of force used
must be in proportion to the force encountered. Kelley, 968 S.W.2d at 399.
Discussion
       The officers’ body camera videos show that they were told that Appellant’s father was the
first person to strike a blow, which was confirmed by the officers at trial. Moreover, Appellant
introduced evidence through his wife’s testimony that his father choked Appellant and attempted



                                                 3
to throw him down the stairs. Thus, Appellant satisfied his burden of production, and accordingly,
the trial court included the self-defense instruction in its charge to the jury. At trial, the officers
testified that striking someone in the head with the metal bike rack pipe can cause death or serious
bodily injury. Moreover, the treating emergency room physician testified that the blunt force
trauma strike suffered by Appellant’s father was a serious bodily injury. The question therefore is
whether Appellant reasonably believed that deadly force was immediately necessary to protect
himself against his father’s use or attempted use of unlawful deadly force.
       Appellant’s wife testified that the fight began because Appellant refused to purchase
replacement tires for his father’s motorcycle, and that he “smacked [Appellant] in the ear.” As
Appellant and his wife attempted to leave, the dog bit Appellant, the dog began having a seizure,
and Appellant’s wife provided treatment to the dog. She testified that, instead of merely grabbing
Appellant and pulling him outside the apartment, Appellant’s father choked him with both arms
around his neck until Appellant’s face turned red and he could not speak. She also claimed she
told the officers that Appellant’s father looked like he was going to push Appellant down the stairs
during the struggle. However, she testified that she did not see the actual events leading to
Appellant’s father’s injury because she was tending to her dog at the time. She initially testified
that she believed Appellant’s father suffered the head injury by hitting his head on a door knob,
and that Appellant did not use the bike rack pipe because it was in the same place it had been for
several days prior to the incident. However, when pressed during her testimony, she vacillated as
to how the injury occurred.
       Appellant’s father testified that he observed Appellant become angry with his wife, and
that the dog bit Appellant during the commotion. After Appellant struck the dog, his father
forcefully removed Appellant from the apartment. Appellant’s father explained that Appellant
calmed down and they reentered the apartment. Shortly thereafter, Appellant’s father testified, he
saw Appellant prepare to strike his wife with the bicycle rack pipe. Consequently, Appellant’s
father grabbed Appellant and again removed him from the apartment. Appellant’s father denied
choking Appellant or squeezing his throat, stating that he “didn’t have ahold of his neck,” and that
if he wanted to apply pressure to Appellant’s neck he would have had “to reach up.” Appellant’s
father explained that he had both arms around Appellant’s chest to prevent Appellant’s strikes
from the bicycle rack pipe. Further, Appellant’s father testified that he was not attempting to throw
Appellant down the stairs but was pulling Appellant along with him to the first floor of the



                                                  4
apartment building to “let him cool off,” and if Appellant had fallen, both men would have tumbled
to the bottom of the stairwell together. He explained that he would not attempt to seriously injure
or kill Appellant. We note that Appellant never claimed that his father attempted to choke him on
the night of the incident.
       The trier of fact is the sole judge of the weight and credibility of the witnesses and may
believe or disbelieve all or any part of any witness’s testimony. Williams v. State, 692 S.W.2d
671, 676 (Tex. Crim. App. 1984). What weight to give contradictory testimonial evidence is within
the sole province of the jury because it turns on an evaluation of credibility and demeanor. Cain
v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). It was thus within the sole province of
the jury to resolve the conflicting versions of events offered by Appellant’s wife and father because
it turned on an evaluation of their credibility and demeanor. See id. By its verdict, the jury credited
the testimony of Appellant’s father that he never used or attempted to use unlawful deadly force
against Appellant, and that therefore, Appellant was not justified in using deadly force in self-
defense. See TEX. PENAL CODE ANN. § 9.32(a)(2)(A); Saxton, 804 S.W.2d at 914 (“[T]he jury is
free to accept or reject the defensive evidence. A jury verdict of guilty is an implicit finding
rejecting the defendant’s self-defense theory.”). Because a rational jury could have found beyond
a reasonable doubt against Appellant on the deadly force self-defense issue, Appellant’s first issue
is overruled.


                                    EXCLUSION OF TESTIMONY
       In his second issue, Appellant argues that the trial court erred when it excluded evidence
pertaining to the violent nature of Appellant’s father.
Standard of Review and Applicable Law
       We review a trial court’s ruling on the admission or exclusion of evidence under an abuse
of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). There is no
abuse of discretion as long as the court’s ruling is within the zone of reasonable disagreement. De
La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009).
       A defendant who raises the issue of self-defense may also introduce evidence of a victim’s
character trait for violence to show that the victim was the first aggressor, but the defendant may
do so only through reputation and opinion testimony. See TEX. R. EVID. 404(a)(3), 405(a); Ex
parte Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2009). Evidence of a person’s other crimes,



                                                  5
wrongs, or acts is not admissible to prove the character of a person to show that he acted in
conformity with that character. TEX. R. EVID. 404(a)(1); see Tate v. State, 981 S.W.2d 189, 192
(Tex. Crim. App. 1998) (explaining that evidence of a person’s character may not be used to prove
that the person “behaved in a particular way at a given time”).
       However, a defendant may also introduce evidence under Rule 404(b) of a “victim’s prior
specific acts of violence when offered for a non-character purpose—such as his specific intent,
motive for an attack on the defendant, or hostility—in the particular case.” Ex parte Miller, 330
S.W.3d at 620; see TEX. R. EVID. 404(b)(2). As long as the proffered violent acts explain the
outward aggressive conduct of the alleged victim, and in a manner other than demonstrating only
character conformity, prior specific acts of violence may be admitted even though those acts were
not directed against the defendant. See Torres, 71 S.W.3d at 762.
Discussion
       Appellant offered evidence through his stepmother that Appellant’s father, while
intoxicated, assaulted her on many occasions, and that two years prior to Appellant’s trial,
Appellant’s father threatened to shoot her and her children. In excluding this evidence, the trial
court found that the evidence was unambiguous that Appellant’s father was the first aggressor.
The court also found that any probative value of the evidence was outweighed by the danger of
unfair prejudice under Rule 403.2
       Under Rule 404(b), a victim’s prior acts of violence may be admissible to clarify the issue
of first aggressor if the proffered act explains the victim’s ambiguously aggressive conduct. Allen
v. State, 473 S.W.3d 426, 446 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d, improvidently
granted, 517 S.W.3d 111 (Tex. Crim. App. 2017).                      Thus, as a condition precedent to the
admissibility of an extraneous act of the victim, there must exist “some ambiguous or uncertain
evidence of a violent or aggressive act by the victim.” Reyna v. State, 99 S.W.3d 344, 347 (Tex.
App.—Fort Worth 2003, pet. ref’d).
       Officers Molina and Thompson testified that they were told that Appellant’s father struck
the first blow, which was confirmed by their body camera videos at trial. Appellant’s wife testified
that Appellant’s father struck him in the ear first. She also testified that Appellant’s father choked
him. Appellant’s father admitted that he forcefully removed Appellant from the apartment. It is
therefore unambiguous that Appellant’s father was the first aggressor. Because Appellant’s

       2
           Appellant does not challenge the trial court’s exclusion of this evidence on Rule 403 grounds.


                                                          6
father’s unambiguous violent actions need no explaining, evidence of the victim’s extraneous
conduct admitted in conjunction with his unambiguous act would have no relevance apart from its
tendency to prove the victim’s character conformity, and thus would be inadmissible. Id.
       Appellant appears to argue that this evidence is relevant to show another purpose, namely
his father’s state of mind or intent to harm Appellant. Rule 404(b) only allows evidence of a
victim’s prior acts of violence to be admitted when the prior acts of violence are relevant to the
ultimate confrontation such that they clarify or explain the victim’s ambiguous conduct in some
way other than showing he acted in accordance with a violent character. See, e.g., Tate, 981
S.W.2d at 193 (evidence that victim stated, several months prior to his death, that he would kill
defendant was admissible to show victim’s intent or motive to cause the defendant harm on the
night he arrived at defendant’s home and defendant stabbed him); Torres, 71 S.W.3d at 761
(holding that the victim’s previous threat made to third party in the victim’s efforts to find his ex-
girlfriend and her children were relevant to show the victim’s intent to commit violence against
anyone who might stand between him and the girlfriend).
       Appellant did not connect the proffered evidence of the victim’s abuse of Appellant’s
stepmother and threat toward her children with the victim’s motive or state of mind at the time of
the offense. The record does not contain any explanation of how Appellant’s father’s specific prior
acts of violence were relevant to the ultimate confrontation, nor what the acts were admissible to
prove other than conformance with a violent character. Such use of evidence of prior acts is
prohibited by Rule 404. See TEX. R. EVID. 404(b)(1). Accordingly, we hold that the trial court’s
decision to exclude the evidence of the victim’s prior acts was not an abuse of discretion. See
Allen, 473 S.W.3d at 446 (defendant failed to show how prior physical abuse of girlfriend and
gang membership clarified victim’s aggressive conduct toward defendant other than showing
violent character conformity); Coleman v. State, 935 S.W.2d 467, 470 (Tex. App.—Tyler 1996,
pet. ref’d) (holding evidence of aggressive horseplay between victim and defendant several months
before assault inadmissible because not relevant to self-defense theory). We therefore overrule
Appellant’s second issue.


                                           COURT COSTS
       In his third issue, Appellant argues that the trial court erred by imposing unconstitutional
court costs.



                                                  7
Applicable Law
         The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State,
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The consolidated fee statute requires a defendant
to pay a court cost of $133.00 on conviction of a felony. TEX. LOC. GOV’T CODE
ANN. § 133.102(a)(1) (West 2011). The money received is divided among a variety of state
government accounts according to percentages dictated by the statute. See id. § 133.102(e) (West
2011); Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).
         In Salinas, the court of criminal appeals held the statute to be unconstitutional with respect
to two of these accounts—an account for “abused children’s counseling” and an account for
“comprehensive rehabilitation.” See Salinas, 523 S.W.3d at 105. As a result, the court set forth
that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the percentage
of the fee associated with these accounts. See id. The court further held that its holding applies
only to (1) a defendant who raised the appropriate claim in a petition for discretionary review
before the date of the court’s opinion, if that petition is still pending on that date and the claim
would otherwise be properly before the court on discretionary review or (2) a defendant whose
trial ends after the mandate in Salinas issues.3 See id. at 112–13.
Discussion
         Except for the amounts allocated to the abused children’s counseling and comprehensive
rehabilitation accounts, Appellant does not contest the amount of court costs assessed against him.
He points to the constitutionality of those fees under Salinas and argues that the amount of court
costs should be proportionately reduced. Because (1) no petition for discretionary review is
pending on Appellant’s claim and (2) the proceedings in the trial court ended on March 30, 2017—
prior to the court’s mandate in Salinas on June 30, 2017—the court’s holding in that case does not
apply. See id.; see also Salinas v. State, No. PD–0170–16 (Tex. Crim. App. June 30, 2017)
(mandate); Smith v. State, No. 12-17-00089-CR, 2018 WL 345740, at *4 (Tex. App.—Tyler Jan.
10, 2017, no pet.) (mem. op., not designated for publication).                       Accordingly, we overrule
Appellant’s third issue.


         3
           Before the mandate issued, the Legislature amended Section 133.102(e), effective June 15, 2017, to redirect
funds previously allowed to abused children’s counseling and comprehensive rehabilitation to the fair defense
account. See Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Sess. Law Serv. 3917, 3917–18 (West)
(current version at TEX. LOC. GOV’T CODE ANN. § 133.102(e) (West Supp. 2018)).


                                                          8
                                                   DISPOSITION
         Having overruled Appellant’s three issues, we affirm the trial court’s judgment.



                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered December 12, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          9
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 12, 2018


                                         NO. 12-17-00132-CR


                               MICHAEL GUISTO CROMEY, JR.,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1667-16)

                       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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
