      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00262-CR



                                 Marques Eugene Guntz, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
      NO. 15-0406-K277, HONORABLE STACEY MATHEWS, JUDGE PRESIDING



                               M E M O R A N D U M O P I N I O N1


               A jury found appellant Marques Eugene Guntz guilty of assault involving dating

violence, a third-degree felony. See Tex. Penal Code § 22.01(b)(2). Guntz argues in one issue that

legally insufficient evidence supports the jury’s rejection of his self-defense claim. For the reasons

that follow, we will affirm.


                                         BACKGROUND

               Catherine Fletcher and Guntz dated from December of 2012 until Fletcher broke off

the relationship in January of 2015 because she believed that Guntz had been “talking to other


       1
         Notice of appeal for this case was originally filed in this Court in December 2016, at which
time the case was transferred to the El Paso Court of Appeals in compliance with a
docket-equalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas
Supreme Court ordered that certain cases be transferred back to this Court from the El Paso
Court, and we consider this appeal pursuant to that order. See Misc. Docket No. 18-9054 (Tex.
Apr. 12, 2018) (per curiam).
women.” Approximately two weeks later, Fletcher took her dog for an evening walk. When she

returned, Guntz was waiting in front of her apartment with wine and flowers. Guntz tried to

convince her to get back together, and Fletcher invited him in so that they could “hash things out”

and then “walk away” from the relationship. Once in the apartment, Fletcher lay down on the couch

and Guntz sat on an ottoman nearby. Fletcher and Guntz had several alcoholic drinks each while

they discussed, in Fletcher’s words, “everything leading up to” the end of their relationship. Fletcher

and Guntz testified to different versions of how the discussion turned violent.


Fletcher

                Fletcher testified that Guntz gave her his phone and demanded that she look through

it for proof he had been seeing other women. Fletcher opened the phone’s call history and

immediately saw the name of a woman Guntz had dated in the past. Fletcher saw the number,

laughed, and told Guntz that this confirmed she did not want to resume their relationship. Fletcher

testified that Guntz immediately “pushed me back on the couch with both hands on my neck and

began to strangle me” while “yelling at me that he was going to kill me.” Fletcher began to lose

consciousness but Guntz released her before she blacked out completely. As he moved away,

Fletcher dialed 911 on her cell phone and put it in the pocket of her pants. Guntz was pacing the

apartment yelling “I’m going to kill you,” and “I’m going to fucking end you” but then decided to

leave. Fletcher jumped up from the couch and moved between him and the door. Guntz grabbed

her by the neck and threw her into the wall. As he left, Fletcher grabbed one of the back pockets

of Guntz’s pants and ripped it all the way down to the cuff of one leg. Fletcher explained at trial that




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she tried to keep Guntz in the apartment because she hoped that police were on their way and

because she “needed somebody to know what he had done” to her.


Guntz

               According to Guntz, Fletcher saw a text message from a woman appear on his phone

and screamed at him to leave. Guntz stood up and put on his sports coat, and Fletcher kicked him

in the abdomen. Fletcher then held Guntz by his neck tie and hit him multiple times on the head.

Guntz placed his left arm against her throat and pushed to create distance between them. Guntz’s

tie came over his head and he moved away from her. Guntz admitted that it was him on the 911 tape

saying “I’m going to kill you,” and “I’m going to fucking end you” at this point, but argues that he

did not mean it literally. Rather, he was trying to de-escalate the situation without using violence.

Guntz testified that Fletcher removed her phone from her bra, hung up the 911 call, and said “I’ve

fucking got you now.” Fletcher advanced towards him but tripped and fell to the floor. Fletcher

reached up and tore Guntz’s pants as he stepped over her on his way out the door.


Trial

               In addition to Fletcher, the State presented testimony from Sergeant Michael

Krogman and Detective John Combs of the Round Rock Police Department, Fletcher’s neighbors

Hannah Day and Chad Copeland, and the emergency room physician who treated her. The jury

listened to a recording of the 911 call from Fletcher’s phone and watched a visual recording of

Guntz’s interview with Detective Combs. The trial court also admitted crime scene photographs of




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Fletcher’s living room, photographs of Fletcher taken after the assault, and a bag containing a tie,

shirt suspenders, and a torn pair of pants recovered from Fletcher’s apartment.

               Guntz testified to his version of the events inside of Fletcher’s apartment and claimed

that he acted in self defense. The trial court granted Guntz’s request for a jury instruction on self

defense and charged the jury accordingly.

               The jury returned a verdict of guilty. The trial court sentenced Guntz by agreement

to ten years’ imprisonment, probated for five years, and a $2,500 fine. Guntz, a patrol officer with

the Round Rock Police Department, also agreed to “permanently and unconditionally” surrender his

peace officer’s license. This appeal ensued.


                                            ANALYSIS

               In one issue, Guntz asserts the evidence is legally insufficient to support the jury’s

rejection of his self-defense claim.


Standard of Review and Applicable Law

               We evaluate the legal sufficiency of the evidence by viewing all of the evidence in

the light most favorable to the verdict and determining whether a reasonable jury could have found

each essential element of the offense beyond a reasonable doubt. Cary v. State, 507 S.W.3d 750, 755

(Tex. Crim. App. 2016). This standard requires us to defer to the jury’s responsibility “to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We afford almost complete deference to the jury’s



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determinations of the credibility and weight of the evidence and may not substitute our own

judgment. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).

                We measure the sufficiency of the evidence against the elements of the offense as

defined by the hypothetically correct jury charge.2 Ramjattansingh v. State, 548 S.W.3d 540, 546

(Tex. Crim. App. 2018). A hypothetically correct charge for this case required the State to prove

beyond a reasonable doubt that Guntz (1) intentionally, knowingly, or recklessly, (2) caused bodily

injury to Fletcher, (3) a person who had a dating relationship with him, by (4) “impeding the normal

breathing or circulation of the blood of [Fletcher] by applying pressure to [her] throat or neck.” See

Tex. Penal Code § 22.01(b)(2). However, it is a defense that the actor “reasonably believes the force

is immediately necessary to protect the actor against the other’s use or attempted use of unlawful

force.” Id. § 9.31(a).

                A defendant claiming self defense bears the initial burden to produce some supporting

evidence. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant

produces some evidence to raise the issue, the State bears the burden of persuasion to disprove the

defense. Id. The burden does not require the State to produce evidence, only that it prove its case

beyond a reasonable doubt. Id. If the jury finds the defendant guilty, it has implicitly rejected the

defense. See Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991); Rodriguez v. State,

546 S.W.3d 843, 860 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Thus, to convict Guntz of


        2
           A hypothetically correct jury charge is one that “accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018)
(quoting Malik v. State, 953 S.W.2d 234, 238 (Tex. Crim. App. 1997)).

                                                   5
assault, the State had the burden to prove the elements of assault beyond a reasonable doubt and that

he did not act in self defense. See Rodriguez, 546 S.W.3d at 860.


Discussion

                Guntz contends the question of his guilt reduces to whether the jury believed his

testimony or Fletcher’s because the independent evidence supports both versions. Guntz argues that

a rational jury could not believe Fletcher because she had assaulted him during a bar crawl in

downtown Austin almost a year prior to the incident at issue here. Fletcher testified that she was the

aggressor in that incident and there is no indication that she ever represented otherwise. The jury

was entitled to conclude that Fletcher was being similarly truthful about what happened in her

apartment. See Merritt, 368 S.W.3d at 525; Schneider v. State, 440 S.W.3d 839, 841 (Tex.

App.—Austin 2013, pet. ref’d) (observing that the jury “can believe all, some, or none of the

testimony presented”). And based on all of the evidence before the jury, we cannot say the jury’s

decision was an irrational one. See Cary, 507 S.W.3d at 757 (“[N]otwithstanding a court’s deference

to the jury’s credibility and weight determinations, the jury’s finding of guilt must be a rational one

in light of all of the evidence presented at trial.”).

                The jury heard significant evidence and testimony that Guntz lied to investigating

officers on multiple occasions. Sergeant Krogman testified that he and Sergeant Eric Mount went

to Guntz’s apartment following the incident to relieve him of duty. While there, they asked him

about Fletcher’s allegations, and Guntz denied that there had been any “physical contact” at all.

Guntz told them he had been in Fletcher’s apartment for 30 minutes and showed them an undamaged

gray suit that he claimed to have worn that night. Guntz initially maintained this story during his

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later interview with Detective John Combs, a recording of which was played for the jury. Both the

recording and Combs’ testimony reflect that Guntz denied the fact that Fletcher tore his pants fifteen

times before admitting that it happened. Guntz also denied telling Krogman and Mount that there

had been no violence.

               Guntz admitted during his testimony that he can be heard on the 911 call, which was

also played for the jury, saying “I will fucking kill you” three times but contends that he did not

literally intend to kill Fletcher. Rather, he was following his training and attempting to de-escalate

the situation with verbal commands. However, Fletcher can also be heard on the tape saying “stop”

and “what happened” multiple times. After listening to the tape, we conclude that the jury could

rationally decide that there was anger in Guntz’s voice and confusion and fear in Fletcher’s,

a situation consistent with Fletcher’s testimony that Guntz was the aggressor.             Moreover,

Detective Combs testified that based on his own training and experience, Guntz did not sound like

he was trying to de-escalate a violent situation.

               Fletcher’s next-door neighbors, Hannah Day and Chad Copeland, testified that they

heard parts of the argument from their apartment throughout the night. Day testified that starting

around 8:30 p.m., she heard raised voices from Fletcher’s apartment and that this continued “on and

off” for “the next few hours.” Day became concerned for Fletcher’s safety several hours later

because “the noises were getting louder” and no longer seemed like an ordinary argument. Copeland

testified that he placed a glass up against the wall to listen to the argument and heard Fletcher say

“[w]hy are you choking me? You’re a police officer -- or you’re a cop.”




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               Viewing all the evidence in the light most favorable to the jury’s verdict as we must,

we conclude that a rational jury could find beyond a reasonable doubt both that the State proved each

element of assault and that Guntz did not act in self defense. We conclude the evidence is sufficient

to support Guntz’s conviction and overrule his sole issue on appeal.


                                         CONCLUSION

               We affirm the trial court’s judgment of conviction.



                                              _________________________________________
                                              Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: August 28, 2018

Do Not Publish




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