Affirmed and Memorandum Opinion filed May 22, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-01027-CR

                          ANTONE RICHIE, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1300545

                  MEMORANDUM OPINION
      Appellant Antone Richie appeals his conviction for murder. On appeal, he
contends that the evidence is insufficient to support his conviction and the trial
court’s assessment of court costs.

                                     BACKGROUND

      It is undisputed that appellant was searching dumpsters for scrap metal
outside of a building on March 21, 2011, when complainant Jim Lee, an overnight
security guard at the building, approached appellant. Lee demanded that appellant
“keep moving” and quit searching the dumpsters. Tempers flared, the two
exchanged profanities, and a physical altercation ensued. During the altercation,
appellant drew a folding knife, cut Lee several times across the arms, face, and
chest, and stabbed Lee once in the arm. At some point, the knife folded back onto
appellant’s thumb, cutting him as well.

      The record reflects that Lee retreated back to his building and appellant fled
across the street to a bank. Appellant got the attention of a security guard at the
bank, told the guard about the altercation with Lee, and accepted the guard’s offer
to call the police and an ambulance for appellant. Emergency medical services
arrived at the scene quickly. After treating appellant’s thumb, the paramedics
departed.

      Houston Police Officer Thomas Gabler responded to the call and arrived at
the bank shortly after the paramedics left. According to Gabler’s testimony at trial,
appellant described the incident to him as an assault by Lee, cooperated with
questioning, and turned over the knife used during the fight. Appellant told him
that he was struck by Lee, and that in response he stabbed Lee in the arm.
Additionally, appellant told Gabler that he had tried to stab Lee in the stomach
area, but that he was unsuccessful because the knife folded back on his thumb.
Observing fresh blood on the blade of the knife, Gabler decided to investigate the
scene where appellant and Lee had fought. Though he did not see Lee or blood
from either party, Gabler prepared an incident report “[i]n case the other party
actually existed and came forward.”

      Meanwhile, the record reflects that Lee continued with his usual activities
for two days after the reported incident. He worked his usual morning and
afternoon shifts as a crossing guard at an elementary school, and when asked about

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his visible cuts and bruises, he reportedly told others they were caused by barbed
wire he encountered while doing yard work. On the second night after the incident,
Lee went into severe shock and called the paramedics. By the time paramedics
arrived and transported Lee to the hospital, he was experiencing multiple organ
failure. Again, Lee claimed to the paramedics his injuries were caused by yard
work. After intensive care and three surgeries, Lee passed away at the hospital on
the sixth day after the altercation with appellant.

      Despite Lee’s statements to the contrary, hospital staff believed that some of
his injuries were, in fact, stab wounds. Consequently, they sent Lee’s body to be
autopsied by the Harris County Medical Examiner and alerted the Houston Police
Department to a possible homicide. After an investigation, appellant was arrested.
While in custody, appellant voluntarily gave a recorded statement to Homicide
Investigator Todd Miller about the fight. In his statement, appellant told Miller that
he had tried to stab Lee but the knife “wouldn’t go in.” This recorded statement
was entered into evidence at trial.

      Doctor Sara Doyle performed the autopsy and testified at trial. She reported
that Lee’s wounds did not fit the pattern of barbed wire, but instead were consistent
with stab wounds. Though many of his wounds were superficial, Lee had a stab
wound six inches deep into his abdomen. The instrument that stabbed Lee in his
abdomen had perforated his small intestine, causing bacterial matter to leak into his
abdominal cavity over several hours.

      Doyle testified that the bacteria entered Lee’s bloodstream and caused
sepsis. The resulting infection caused Lee to slip into “multiple organ failure”
before he arrived at the hospital. Ultimately, Doyle concluded that Lee’s death was
caused by the severe sepsis and organ failure that were “complications of the stab
wound of his abdomen with perforation of his intestine.”

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      At the conclusion of the trial, the jury found appellant guilty of murder,
enhanced by two prior felony convictions, and assessed punishment at thirty years
in prison. This appeal followed.

                                      ANALYSIS

   I. Legal Sufficiency of the Evidence to Support Appellant’s Conviction

      In his first two issues, appellant asserts that the evidence is insufficient to
support his conviction. Appellant was charged under sections 19.02(b)(1) and
19.02(b)(2) of the Texas Penal Code, and the jury charge tracked the language of
the indictment. Appellant contends that the evidence is insufficient to support his
conviction because a rational factfinder could not have concluded that appellant
committed the offense of murder. Appellant also contends that the evidence is
insufficient to support the jury’s negative finding against him on the issue of self-
defense.

      When evaluating the legal sufficiency of the evidence to support a criminal
conviction, we must view all the evidence in the light most favorable to the
prosecution and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318–19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.
App. 2013).

      When the record presents conflicting inferences, a reviewing court presumes
that the jury resolved the conflicts in favor of the verdict. Temple, 390 S.W.3d at
360. The jury is the sole judge of the weight and credibility of witness testimony.
Id. Additionally, the jury, as the sole judge of the credibility of the witnesses, is
free to believe or disbelieve all or part of a witness’s testimony. Jones v. State, 984
S.W.2d 254, 257 (Tex. Crim. App. 1998).


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      Under this standard, a criminal conviction may be based on circumstantial
evidence. Temple, 390 S.W.3d at 359. The State is not required to present direct
evidence, such as eyewitness testimony, to establish guilt. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004). The law does not require that each piece of
evidence point directly and independently to the guilt of appellant, as long as “the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

   A. Sufficiency of the Evidence to Support Finding that Appellant
      Committed the Offense
      A person commits murder if he intentionally or knowingly causes the death
of an individual. Tex. Penal Code § 19.02(b)(1). A person acts intentionally with
respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result. Id. §
6.03(a). A person acts knowingly with respect to the nature of his conduct when he
is aware of the nature of his conduct. Id. § 6.03(b). A person acts knowingly with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result. Id.

      Viewing the evidence in the light most favorable to the verdict, we
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Laster, 275 S.W.3d at 517. After giving
proper deference to the factfinder’s role, we will uphold the verdict unless a
rational factfinder must have had reasonable doubt as to any element of the
offense. Laster, 275 S.W.3d at 518. We begin with the element of causation before
turning to whether appellant acted intentionally or knowingly.

   1. Whether Appellant Caused the Death of Complainant

      Appellant first complains of the lack of direct evidence showing that

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appellant caused the stab wound to Lee’s abdomen, but the State is not required to
present direct evidence to establish an element of the offense. See Guevara, 152
S.W.3d at 49. Rather, the element may be proved by the cumulative force of all the
incriminating circumstances. See Hooper, 214 S.W.3d at 13.

       In this case, it is undisputed that appellant fought with Lee, cut Lee
numerous times across the arms and face, and stabbed him once in the arm.
Testimony from Officer Gabler, as well as appellant’s recorded statement to
Investigator Miller, show that appellant attempted to stab Lee in the stomach, but
thought he was unsuccessful. Although appellant claims that a wound six inches
deep was inconsistent with a knife blade only five inches long, Dr. Doyle
explained to the jury that a five-inch knife blade can cause a six-inch wound when
the blade is thrust into a soft part of the body, such as the abdomen. Similarly, Dr.
Doyle explained that the lack of blood on the blade and around the crime scene,
while atypical, was not so unusual because the autopsy in this case indicated that
no major organs or blood vessels were pierced. The jury was entitled to believe the
testimony of Officer Gabler and Dr. Doyle over appellant’s proffered explanation
that the knife never actually entered Lee’s abdomen. See Temple, 390 S.W.3d at
360.

       Viewed in the light most favorable to the verdict, the combined force of the
incriminating circumstances allowed the jury to rationally conclude beyond a
reasonable doubt that appellant caused the stab wound in Lee’s abdomen with the
knife appellant used during the encounter. See Hooper, 214 S.W.3d at 13.

       Appellant also contends that the evidence is insufficient to show he caused
Lee’s death because complainant waited several days before seeking medical
treatment for his wounds. Yet, Dr. Doyle testified that she believed Lee would not
have died but for the stab wound to his abdomen. See Tex. Penal Code § 6.04 (“A

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person is criminally responsible if the result would not have occurred but for his
conduct . . . .”). Furthermore, there is no statutory requirement that a victim seek
medical treatment promptly or at all. See generally Tex. Penal Code §§ 8, 9 (not
listing any defense that victim fails to seek medical treatment); Patrick v. State,
906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (rejecting appellant’s argument that
he lacked specific intent to kill complainant because the medical examiner testified
that “had the victim had medical attention, she would have had a ‘great chance to
live’”).

       Based on the testimony from medical personnel that complainant would not
have died but for the stab wound, a rational factfinder could have found beyond a
reasonable doubt that appellant’s actions caused the death of Lee. See Laster, 275
S.W.3d at 517. We hold that the evidence is legally sufficient to uphold this
element of the offense.

   2. Whether Appellant Acted With Intent or Knowledge

       The specific intent to kill may be inferred from the use of a deadly weapon.
Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Godsey v. State,
719 S.W.2d 578, 580–81 (Tex. Crim. App. 1986). A deadly weapon is “a firearm
or anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury; or anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” Tex. Penal Code
§ 1.07(a)(17) (emphasis added). A knife that produces injuries which result in
death or serious bodily injury is a deadly weapon. Rivera v. State, 271 S.W.3d 301,
304 (Tex. App.—San Antonio 2008, no pet.) (citing Tyra v. State, 897 S.W.2d 796,
798 (Tex. Crim. App. 1995)).

       The record in this case indicates that Lee’s death was caused by injuries
from appellant’s knife. When the knife perforated Lee’s intestine, a hole in the
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intestine allowed bacterial matter to leak into Lee’s abdominal cavity. The
bacterial matter, in turn, caused the poisoning of Lee’s bloodstream. Although Lee
underwent extensive medical treatment and three surgeries during his time in the
hospital, the testimony of Dr. Doyle indicated that he died from blood poisoning
and organ failure that were direct complications of the stab wound to his abdomen.

         Viewing the evidence in a light most favorable to the verdict, we conclude a
rational factfinder could have found that Lee’s death resulted from the stab wound
inflicted by appellant’s knife. See Laster, 275 S.W.3d at 517. Thus, the jury was
entitled to conclude that the knife was a deadly weapon, and that appellant had the
specific intent to kill. See Tyra, 897 S.W.2d at 798; Godsey, 719 S.W.2d at 580–
81. We therefore conclude that legally sufficient evidence exists to support a
finding on this element. See Tibbs v. State, 125 S.W.3d 84, 90–91 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) (Anderson, J., concurring) (holding that a
reasonable factfinder could infer appellant’s intent to kill based on his use of a
knife that killed one of his attackers).

         When the trial court’s charge authorizes the jury to convict on more than
theory, as it does in this case, the conviction will be upheld if the evidence is
sufficient on any one of the theories. Guevara, 152 S.W.3d at 49. Because
sufficient evidence exists to support the jury’s finding of each element of the
offense of murder under section 19.02(b)(1), we need not discuss appellant’s
arguments regarding the sufficiency of the evidence to support his conviction
under section 19.02(b)(2). We conclude that the evidence is legally sufficient to
support a finding of the essential elements of murder. We overrule appellant’s first
issue.




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   B. Sufficiency of the Evidence to Support a Negative Finding Against
      Appellant’s Claim of Self-defense
      In his second issue, appellant contends that the evidence is insufficient to
support a finding against appellant beyond a reasonable doubt on the issue of self-
defense.

      Self-defense is a defense to prosecution under Penal Code section 2.03. See
Tex. Penal Code § 9.31. A person may use 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.” Id. § 9.31(a).
The use of deadly force in self-defense is justified when a person reasonably
believes the force is immediately necessary to protect the actor against the other’s
use or attempted use of unlawful deadly force or to prevent the other’s imminent
commission of aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery. Id. § 9.32. A “reasonable belief” is one
that would be held by “an ordinary and prudent man in the same circumstances as
the actor.” Id. § 1.07(a)(42). “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).

      The initial burden to produce evidence supporting self-defense rests with the
defendant. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);
Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant
produces some evidence, the State bears the ultimate burden of persuasion to
disprove the raised defense. Saxton, 804 S.W.2d at 913. This burden of persuasion
does not require that the State produce evidence, but it does require that the State
prove its case beyond a reasonable doubt. Id. The issue of self-defense is a fact
issue to be determined by the jury, which is free to accept or reject any defensive
evidence on the issue. Id. at 913–14. If the jury finds the defendant guilty, then it
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implicitly finds against the defensive theory. Id. at 914.

      Appellant contends that Lee approached him and began striking him on the
head and chest. According to appellant, Lee was always the aggressor and
appellant only used his knife after demanding Lee stop the attack. Additionally,
appellant urges that his small stature relative to Lee affirmatively casts reasonable
doubt on the State’s case against self-defense.

      Appellant’s testimony alone does not conclusively prove self-defense as a
matter of law. See Saxton, 804 S.W.2d at 914; Hull v. State, 871 S.W.2d 786, 789
(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). Because the jury is the sole
judge of credibility and weight to be given the testimony, the jury was not
obligated to believe appellant’s account that complainant was the first aggressor.
See Saxton, 804 S.W.2d at 914.

      The record contains evidence that contradicts appellant’s claim of self-
defense. Emergency medical records showed that, when the paramedics arrived,
appellant did not complain that he had been struck by Lee. Similarly, Officer
Gabler testified that he observed no marks or injuries other than the bandage on
appellant’s thumb. When Gabler asked appellant if he was injured, appellant
replied that only his thumb was hurt. Moreover, the jury was not shown evidence
to justify appellant’s use of deadly force in response to Lee’s alleged assault. Other
than appellant’s account that Lee was “pounding” on appellant’s head and chest,
which other testimony contradicts, no record evidence established that appellant’s
use of deadly force was in response to Lee’s attempted use of deadly force. See §
9.32(a)(2)(A).

      Considering all the evidence in the light most favorable to the jury’s verdict,
we conclude a rational jury could have rejected appellant’s self-defense claim. See
Saxton, 804 S.W.2d at 914. We overrule appellant’s second issue. Id.
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   II. Legal Sufficiency of the Evidence to Support the Assessment of Court
       Costs in the Judgment
      In his third issue, appellant asserts that the assessment of court costs in the
trial court’s judgment is not supported by sufficient evidence. As part of its
judgment, entered November 5, 2012, the trial court assessed costs of $234 to be
paid by appellant. The original clerk’s record filed with this court contains a
computer screen printout from the Harris County Justice Information Management
System (JIMS) which reflects the assessment of $234 in costs. On December 10,
2012, the JIMS printout was signed by a deputy clerk and stamped with the seal of
the Harris County District Clerk, certifying the printout as a true and correct copy
of the original. Appellant objects to this JIMS computer screen printout, asserting
there is no evidence to support that it was part of the original record before the trial
court, and, therefore, it is no evidence to support the imposition of court costs.

      The Court of Criminal Appeals recently rejected appellant’s argument,
determining that, for the trial court to properly order a criminal defendant to pay a
specific amount of costs, there need not have been evidence in the record before
the trial court at the time of its judgment that supports the assessment of this
amount of court costs. See Johnson v. State, 423 S.W.3d 385, 390, 392–94 (Tex.
Crim. App. 2014). Because court costs are not part of the defendant’s guilt or
sentence and need not be proven at trial, courts should review the assessment of
costs to determine if there is a basis for the costs, not to determine if there is
sufficient evidence to support the assessment of costs. See id. at 389–90. The Court
of Criminal Appeals also held that a JIMS printout substantially similar to the
printout in the original clerk’s record in this case was a proper bill of costs that
supported the trial court’s assessment of costs. See id. at 392–94. Under the
Johnson precedent, either the JIMS printout or the Criminal Bill of Costs provides
a sufficient basis for the trial court’s assessment of court costs. See id. at 392–96.

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Absent a challenge to a specific cost or the basis for the assessment of that cost, a
bill of costs is sufficient. See id. at 396.

       Appellant further urges that his constitutional right to due process has been
violated if he is deprived of an opportunity to be heard in the trial court regarding
the propriety of these costs. This argument lacks merit under precedent from the
Court of Criminal Appeals. See Cardenas v. State, 423 S.W.3d 396, 398–99 (Tex.
Crim. App. 2014); Johnson, 423 S.W.3d at 391–92. Criminal defendants have
constructive notice of the mandatory-cost statutes. Cardenas, 423 S.W.3d at 398–
99. The procedures outlined in Johnson provide defendants with notice and an
opportunity to be heard because: (1) appellants do not have to preserve error in the
trial court; (2) appellants may challenge the assessment of court costs on direct
appeal; and (3) appellants may also challenge the assessment of court costs by a
motion under article 103.008. See Tex. Code Crim. Proc. art. 103.008; Cardenas,
423 S.W.3d at 399; Johnson, 423 S.W.3d at 391–92. Thus, appellant’s due process
right has been satisfied with respect to notice and an opportunity to be heard
regarding the assessment of court costs. See Cardenas, 423 S.W.3d at 399;
Johnson, 423 S.W.3d at 391–92. We overrule appellant’s third issue.

       Having overruled appellant’s three issues, we affirm the trial court’s
judgment.


                                           /s/      Ken Wise
                                                    Justice


Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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