      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00435-CR



                                 Desmond F. Moore, Appellant

                                                v.

                                  The State of Texas, Appellee


           FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
         NO. C-1-CR-14-200313, HONORABLE MIKE DENTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Desmond F. Moore of assault family violence, and the

trial court sentenced him to one year in jail but suspended imposition of the sentence and placed

him on eighteen months of community supervision. See Tex. Penal Code § 22.01. Moore appeals,

asserting that the evidence is insufficient to support the jury’s verdict because he proved he was

acting in self-defense. We affirm the trial court’s order placing Moore on community supervision.


                                       Factual Summary

               Reagan, the complainant and Moore’s daughter, testified that the altercation began

after she confronted Moore about whether he had “put hands on my son.” Moore “said something

along the lines of it doesn’t matter I can do what I want [sic],” and Reagan repeated her question,

“basically saying don’t put hands on my son[,] it’s not your place. And he came very close to my

face [and] at that point I did push him away from me, and that’s when he started hitting me.”
Reagan testified that when Moore pressed his forehead against hers, she felt threatened because he

was too close and “acting belligerent in the first place. And then when he came into my space like

that that’s when I felt threatened. I felt like I needed to remove him from my space. And right after

that is when he started swinging at me.” Moore repeatedly struck Reagan in the face with his fists,

and she said she was too shocked to respond other than to attempt to block his blows with her hands.

Reagan’s jaw was bruised and painful afterwards, she had “a weird bump on my chin that didn’t go

away for a while,” and her hand hurt for about a year after the assault. Reagan denied hitting Moore

and said she believed he inflicted his own alleged injuries between the time the police were called

and their arrival.

                Reagan’s daughter D., who was seven at the time of the altercation, testified that her

grandfather “beat up my mom.” D. testified that the day before the fight, when she asked Moore why

he had thrown a toy, he hit her on the arm, although she said she was not hurt. The next day, Reagan

asked Moore “why he was putting his hands on us,” and Moore became angry and “just came up

and started hitting her.” D. saw Moore hit Reagan in the face with his fist and said Reagan tried to

block Moore’s blows. D. said that Reagan did not hit Moore and that “she didn’t do anything.”

                Moore testified that when Reagan asked him if he had put his hands on her children,

he felt threatened because “[s]he seemed as if she wanted to punish me.” Moore stated that he asked

her what she was talking about, and she punched him on the right side of the face with her left hand.

Moore said he tried to push Reagan away, and that she hit him two more times before he hit her

back, trying to defend himself. He said, “I wasn’t attempting to hurt her, I just wanted to get her off

of me.” Moore also denied having physically disciplined Reagan’s children. He said D.’s testimony



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that he had physically disciplined the children and that he hit Reagan first was a “[s]traight up” lie.

Moore testified that his lip was swollen and that there were red marks on his face.


                                              Discussion

                Moore argues that the evidence is insufficient to support the jury’s determination

that he was not acting in self-defense when he struck Reagan. He contends that the evidence shows

he was confronted by his daughter, who outweighed him, that she initiated physical contact by

pushing him, and that he had an “absolute right to self-defense” and “an immediate right to

neutralize [Reagan’s] aggression.” He argues that the State did not prove beyond a reasonable doubt

that he did not act in self-defense during the altercation. We disagree.

                In evaluating the sufficiency of the evidence supporting a jury’s verdict, we view

the evidence in the light most favorable to the verdict and ask whether a rational fact-finder could

have found the essential elements of the offense beyond a reasonable doubt. Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v. State, 323 S.W.3d 893, 902 n.19

(Tex. Crim. App. 2010)). We are instructed only to “ensure that the evidence presented supports the

jury’s verdict and that the [State] has presented a legally sufficient case of the offense charged.” Id.

“The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses,”

and if “the record supports conflicting inferences, we presume that the jury resolved the conflicts

in favor of the verdict, and we defer to that determination.” Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014).

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

reasonably believes is immediately necessary to protect himself against the other’s use or attempted

                                                   3
use of unlawful force. Tex. Penal Code § 9.31(a). “[T]he issue of self-defense is an issue of fact to

be determined by the jury.” Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). When

a defendant raises the issue of self-defense, “the State has the burden of persuasion in disproving the

evidence of self-defense,” but it is not required to “affirmatively produce evidence refuting the

self-defense claim, but rather . . . to prove its case beyond a reasonable doubt.” Id. In evaluating

the sufficiency of the evidence supporting a jury’s rejection of a claim of self-defense,1 we ask not

whether the evidence refuted the self-defense testimony but whether, viewing the evidence most

favorably to the prosecution, a rational juror could have found against the claim of self-defense

beyond a reasonable doubt. Id. at 914. Evidence supporting a claim of self-defense “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.” Id.

               Moore testified that Reagan initiated the physical confrontation by pushing him.

However, Reagan testified that he approached her and pressed his forehead against hers in a

threatening way and that she pushed him away in response, at which point Moore started punching

her in the face. The jury was free to consider both versions of events and find Reagan’s testimony,

which was supported by D.’s version of events, more credible. Further, self-defense only excuses

the use of force the defendant reasonably believes is necessary to protect himself, Tex. Penal Code

§ 9.31(a), and the jury could have concluded that punching Reagan in the face after she pushed him

away was not a reasonably necessary use of force.




       1
          A jury implicitly rejects a claim of self defense when it returns a guilty verdict. Saxton v.
State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

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              We overrule Moore’s issue on appeal and affirm the trial court’s order granting

community supervision.



                                           __________________________________________

                                           David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Pemberton

Affirmed

Filed: June 10, 2016

Do Not Publish




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