Affirmed as modified; Opinion Filed January 23, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01092-CR

                               KENNETH WATTS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F17-76274-R

                              MEMORANDUM OPINION
                          Before Justices Molberg, Reichek, and Evans
                                  Opinion by Justice Reichek
       A jury convicted Kenneth Watts of murder and assessed punishment at nineteen years in

prison. In two issues, appellant argues (1) the evidence is insufficient to support his conviction

because a rational jury could not reject his claim of self-defense and (2) a portion of the $25 time

payment fee assessed as part of the court costs is facially unconstitutional. We overrule appellant’s

first issue but sustain his second issue regarding the time payment fee. We modify the trial court’s

judgment to delete a portion of the court costs and affirm the judgment as modified.

                                     FACTUAL BACKGROUND

       On the night of August 26, 2017, appellant fatally shot Christopher Meredith in the head

with an AK-47 assault rifle. Meredith was driving a car in a shopping center parking lot at the

time. Appellant claimed that he feared Meredith was about to run him over, and he shot Meredith

to protect himself. To prove appellant murdered Meredith, the State relied primarily on the
testimony of two eyewitnesses, Jenita Busbey and Leroy Broadway, as well as video evidence

depicting what occurred before and after the shooting, but not the shooting itself. Busbey and

Meredith previously dated and had a child together; Broadway was an acquaintance from whom

Meredith had previously purchased drugs.

        On the night of the incident, Meredith drove Busbey’s car to pick her up from work.

Meredith then drove them to a gas station located in a shopping center in East Dallas to buy $20

worth of marijuana. When they arrived shortly before 11 p.m., some fifteen to twenty people were

hanging out in the parking lot. Meredith saw appellant and initially purchased the marijuana from

him. But right after he made the buy, Meredith saw Broadway and decided that he wanted to

purchase the marijuana from him. Meredith went to get his money back from appellant. Appellant

agreed, but slapped Meredith with the money as he returned it. The slap angered Meredith, who

took it as a sign of disrespect.

        Meredith went to the trunk of his car, opened it, and briefly appeared to be looking for

something as he argued with appellant. Although appellant initially believed Meredith was

looking for a gun, he never saw Meredith with one. Meredith closed the trunk and got into his car

to leave before suddenly getting out again. Appellant and his co-defendant, Jerrick Chism, walked

over to Meredith, and Chism hit Meredith in the head. Both men then repeatedly punched and

kicked Meredith several times, knocking him into the driver’s seat of the car, where they continued

to beat him.

        Busbey, who was in the front passenger seat, got out of the car when Chism reached in and

appeared to take her car keys from the ignition. She confronted Chism, who knocked her to the

ground. After several seconds, appellant and Chism walked away. Busbey said Meredith was

“pretty upset” and drove around the parking lot a couple of times looking for appellant and Chism.

At one point, they saw appellant. Ultimately, she was able to convince Meredith to leave. Busbey

                                               –2–
said Meredith was yelling and cursing during the incident, but she never heard him threaten to kill

anyone.

       Shortly after they left, Busbey discovered that her purse and phone were missing. She and

Meredith presumed it was taken by appellant or Chism during the fight. Busbey said the keys to

her home and work were in her purse, and she needed them. They immediately returned to the

shopping center. Surveillance video showed that they arrived at 11:07 p.m. Busbey said she got

out of the car to look for her purse and found it on the ground in a dark corner of the parking lot.

Its contents had been dumped and, in picking them up, she noticed her phone and keys were

missing. She was able to retrieve her phone from one of the many people hanging out on the

parking lot that night, but she never found her keys. Surveillance video showed Busbey with her

purse walking across the parking lot at 11:09 p.m.

       During this time, appellant was driving erratically around the parking lot looking for the

two men who beat him. After Busbey got back into the car, she saw appellant, who walked in

front of their car. Meredith and appellant continued to yell at each other. According to Busbey,

Meredith was still “really mad” and wanted to fight them. Once appellant moved out of the way,

Meredith drove erratically around the parking lot, making a “couple more donuts.” As the car

rounded a parking lot median and was facing the store fronts, Busbey saw appellant and Chism

standing next to each other in front of the darkened windows of one of the stores. She immediately

noticed they had weapons––appellant had an assault rifle and Chism had a pistol––and told

Meredith. Busbey testified that when Meredith saw that the men were armed and “were about to

shoot us,” he started to drive at a high rate of speed to “get us out of there.” She heard four or five

gunshots and then woke up in the car inside of one of the closed stores, Henderson’s Chicken. It

was dark, but she could see that Meredith’s face was bloody and he was “jerking.” Appellant and

Chism were captured on video at 11:11 p.m. running from the scene.

                                                 –3–
       Busbey squeezed out of the car and ran to a police officer. She said she was “scared” and

in “disbelief” over what had happened. After talking to the police, she was taken to the hospital,

where she learned that Meredith would not survive his injuries. Busbey said appellant did not have

a gun that night and she never heard him threaten to kill anyone. She acknowledged, however,

that Meredith was very angry “from the moment they jumped him” and wanted to fight them.

       On cross-examination, Busbey dismissed the idea that Meredith returned to the shopping

center parking lot that night simply to look for his assailants. She said they returned to get her

belongings, although she said she was sure “it infuriated [Meredith] more that they stole my

property.” She also agreed that at the moment she saw that appellant and Chism had weapons, her

car was pointed directly at them. But she also testified that if Meredith had wanted to run over

appellant, he could have done so when appellant walked in front of their car just before the

shooting. She said Meredith was not trying to run over anyone that night. Moreover, she did not

believe Meredith would have wrecked her car “just to run over two individuals through a glass

building.”

       Broadway was subpoenaed by the State but was a reluctant witness who said he was scared

to testify and did not remember the events of that night. Initially, he responded to each question

with either he did not know, did not remember, or did not recall. After a break in the proceedings,

appellant acknowledged that he was on the surveillance video of the scene that night and that he

had talked to Detective Esteban Montenegro, the investigator on the case. He also said he watched

the video of his interview and remembered giving a statement.

       Broadway testified that he was the person that took Busbey’s purse that night because, once

the fight broke out, he wanted to get his marijuana back. He testified that after the fight, Meredith

tried to run over appellant, was “deranged,” was driving erratically, and was about to hit other

people. When Meredith returned to the parking lot after leaving, he was still upset and was ranting,

                                                –4–
raving, and hollering at appellant and Chism. According to Broadway, appellant said he “wanted

to kill them,” was “going to try to kill them,” and was “going to get them, you know, going to do

something bad to them.” Broadway said he did not remember telling Detective Montenegro that

appellant and Chism shot Meredith while he was walking to his car. He acknowledged hearing

that statement on the video, but said he did not remember what actually happened because he was

“highly intoxicated” that night.

       Montenegro, the investigating detective, obtained outside surveillance video from a

convenience store where the events began. Based on that video, he was ultimately able to identify

the two shooters. The video, which showed the drug transaction and events that led to the physical

fight, was offered into evidence and was used during the testimonies of Busbey, Broadway,

Montenegro, and appellant to explain the events.

       As part of his investigation, Montenegro interviewed both Busbey and Broadway. Busbey

was “all over the place,” but both said Meredith was angry and “acting crazy” that night and should

have left the scene. But Montenegro said that Meredith being out of control did not warrant him

getting shot. He did not remember Busbey telling him that Meredith was driving the car towards

the shooters when the shots were fired; rather, Busbey told him they drove around the parking lot

a couple of times and as they came around the corner, she saw the men holding guns and they

opened fired. Although there were many people at the scene that night, none of them came forward

with any information. He was not able to find any other independent witness who actually saw

the incident.

       Crime scene analysts photographed the scene and collected two fired cartridge casings

stamped Tulammo 7.62x39, four fired cartridge case heads stamped R-P 40 S&W, and two fired

bullet fragments. The “40s” were found on the sidewalk, and the 7.62s were found in the parking

lot close to the sidewalk. The distance from the median to the sidewalk was more than 54 feet. A

                                               –5–
firearms and tool mark expert testified that the 7.62s came from an AK-47/SKS-type of semi-

automatic rifle and had been fired by the same firearm. The four 40 S&W cartridge casings were

fired from the same .40-caliber firearm, likely a Smith and Wesson M&P series pistol.

       In addition, Busbey’s car was processed, and it appeared that only one projectile went

through the vehicle. The bullet appeared to go through the front driver’s side windshield and

through part of the vinyl sun visor. A fired bullet/shredded jacket was found in the left rear seat.

The projectile looked like it came from a rifle.

       Appellant testified he was selling marijuana that night when Meredith drove up and asked

to buy some. After he sold marijuana to him, Meredith came back and accused appellant of selling

him some “bunk ass weed.” He gave Meredith his money back and watched Meredith do a

“transaction” with Broadway. He denied slapping Meredith with the money. Meredith was in his

car and was leaving when he suddenly stopped, got out of the car, and “acted like he had a weapon

in his trunk.” According to appellant, Meredith kept saying, “You just don’t know who you

fucking with.” Appellant said Meredith was “aggressive,” and appellant thought he had a weapon.

Appellant said he asked Meredith if he was going to shoot him over $20, and appellant said, “You

don’t know who you fucking with. I live right down the street. I’ll be back.” At one point,

Meredith had his hand up in the air, which appellant said meant that “he’s fix’in to get his shit.”

       Meredith started to leave, but again, stopped and got out of the car. Appellant said he could

tell that Meredith did not have a weapon and felt “comfortable” approaching him to ask “what the

problem was.” Chism also walked up, although appellant said he was not involved in the

transaction and he did not ask him to get involved. Appellant said Meredith threatened to “fuck”

them up and “pop” both of them. At that point, Chism hit Meredith, and the fight broke out. When

the fight ended, appellant said Meredith tried to run them over with his car. He said Meredith

drove the car over the curb and was chasing them. Appellant said he ran into a smoke shop, which

                                                   –6–
was three or four doors down from the Henderson’s Chicken. Appellant said he stayed in the

smoke shop while appellant circled the parking lot. A friend, who he said has since died, came

into the store and told him he had a gun in his car if he needed it. At one point, appellant peeked

out of the shop to leave, but saw Meredith circling the parking lot again and “backed up.”

       When appellant decided to leave the smoke shop, he heard “a lot of commotion” coming

from Meredith. He said he could hear Meredith asking, “Where them n–––? I’m fix’in to kill

them.” Appellant said he took the threat seriously. He went to his “homeboy’s car” and got the

gun because he was “thinking about what [Meredith] said.” As he was walking toward the

commotion, he said he saw Meredith and Meredith saw him. He testified that Meredith drove the

car “full speed directly” at him, and appellant said he feared for his life. He said he did not know

if Meredith had a gun or if he was about to run him over with his car. So, appellant said, he fired

two shots at Meredith’s car and then ran.

       On cross-examination, appellant acknowledged that he and Meredith were yelling at each

other over the course of the incident, but he denied ever making any threatening statements. He

also knew that when Meredith closed his trunk, he did not have a gun. He admitted––and the video

evidence showed––that he and Chism beat Meredith and were going at it “hard.” He also

acknowledged that the smoke shop was a “safe place” for him after the fight.

       As for the events that occurred after Meredith returned, he denied Busbey’s account that

he had an encounter with Meredith right before the shooting in which he was standing in front of

the car while he and Meredith yelled at each other. In addition, the State questioned him about

why he would leave his “safe place” when he claimed to hear Meredith threatening to kill him. He

said he heard the threat from a distance away in the parking lot, but instead of returning to the

smoke shop, he went and got the AK-47 assault rifle, which he acknowledged was a “pretty hefty

weapon to handle,” and began walking in the direction of the commotion. As for Chism’s

                                                –7–
involvement, he said it was a “matter of pure coincidence” that Chism also got a weapon and

walked to the exact position as appellant, aimed in the exact direction, and shot at the exact same

time. He said the shooting was not planned.

       After hearing the evidence, the jury rejected appellant’s claim of self-defense and convicted

him of murder. This appeal ensued.

                                          SELF-DEFENSE

       In his first issue, appellant argues the evidence is insufficient to support the conviction

because no rational factfinder could have found against him on his claim of self-defense. In

particular, he argues his belief that deadly force was immediately necessary to protect him against

Meredith’s use or attempted use of deadly force was reasonable under the circumstances.

1. Law of Self-Defense

       As charged here, a person commits murder if he (1) intentionally or knowingly causes the

death of an individual or (2) intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. §

19.02(b)(1), (2). A person is justified in using force against another when and to the degree he

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

or attempted use of unlawful force. Id. § 9.31(a). Under section 9.31, the use of force against

another is not justified in response to verbal provocation alone. Id. § 9.31(b)(1). A person is

justified in using deadly force against another (1) if he would be justified in using force against

another under section 9.31 and (2) when and to the degree he reasonably believes deadly force is

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

deadly force. Id.§ 9.32(a). “Deadly force” means force that is 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




                                               –8–
injury). TEX. PENAL CODE ANN. § 9.01(3). “Reasonable belief” means a belief that would be held

by an ordinary and prudent person in the same circumstances as the actor. Id. § 1.07(a)(42).

       An actor is not required to retreat before using deadly force if he has a right to be present

at the location where the deadly force is used, he has not provoked the person against whom the

deadly force is used, and he is not engaged in criminal activity at the time deadly force is used.

Id. § 9.32(c). In determining whether the actor reasonably believed that the use of force was

necessary, the fact finder may not consider whether the actor failed to retreat. Id. § 9.32(d).

2. General Principles Governing Legal Sufficiency Review

       In reviewing the sufficiency of the evidence to support a criminal conviction, we examine

the evidence in the light most favorable to the verdict to determine whether any rational jury could

have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Braughton v. State, 569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018). This standard,

which applies equally to both direct and circumstantial evidence cases, accounts for the

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). On review,

this Court considers whether the necessary inferences made by the trier of fact are reasonable,

based on the cumulative force of all the evidence. Braughton, 569 S.W.3d at 608. We do not

engage in a “divide-and-conquer” analysis, separating each piece of evidence offered to support

an appellant’s conviction, followed by speculation on the evidence the State did not present.

Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012). We presume that the factfinder

resolved any conflicting inferences in favor of the verdict, and we defer to that resolution.

Braughton, 569 S.W.3d at 608.




                                                –9–
       When performing our review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the jury. Id. “Although the parties may disagree

about the logical inferences that flow from undisputed facts, ‘[w]here there are two permissible

views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.’”

Braughton, 569 S.W.3d at 608 (quoting Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App.

2006) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574, (1985)). But juries are not

permitted to come to conclusions based on “mere speculation or factually unsupported inferences

or presumptions.” Id.

3. Conducting Sufficiency Review for Self-Defense Claim

       The issue of self-defense is a fact issue to be determined by the jury. Saxton v. State, 804

S.W.2d 910, 913 (Tex. Crim. App. 1991). The defendant has the initial burden of producing

evidence to raise self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);

Saxton, 804 S.W.2d at 914. If the defendant produces some evidence, the State has the burden of

persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594. The State is not obligated

to offer evidence refuting a claim of self-defense; rather, the State is required to prove its case

beyond a reasonable doubt. Id. Thus, when an appellant challenges the sufficiency of the evidence

to support the rejection of a self-defense claim, we review all the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact would have found the

essential elements of the offense beyond a reasonable doubt and also would have found against

the appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. If

a jury finds the defendant guilty, then it implicitly finds against the defensive theory. Zuliani, 97

S.W.3d at 594.




                                               –10–
4. Analysis

        Appellant argues the evidence demonstrated that he acted reasonably in shooting Meredith

to protect himself from Meredith’s use or attempted use of unlawful deadly force. He argues that

Meredith’s verbal threats, coupled with his “erratic, angry, and upset driving directly towards”

appellant, shaped appellant’s reasonable belief that defensive action was immediately necessary

to protect against being run over by Meredith. He directs us to his testimony that Meredith (1)

told appellant he didn’t know who he was “fucking with,” (2) said he was going to “fuck” them

up and “pop” both of them, and (3) said he was “fix’in to kill them.” He argues that the fight had

been over for several minutes and Meredith became the aggressor when he returned to the parking

lot to “hunt” him down and attempt to “run him over.” Finally, he also argues that he had no duty

to retreat because (1) he had a right to be on the parking lot, (2) he did not provoke Meredith at the

time Meredith “accelerated the vehicle directly towards [him” and had not threatened him that

night, and (3) he was not engaged in any criminal activity at the time Meredith “accelerated the

car.”

        Although the jury heard evidence favorable to appellant, they also heard from Busbey and

were able to view the video of events before the shooting. Although she acknowledged Meredith

was very angry that night after appellant and Chism beat him and had driven erratically around the

parking lot, she denied ever hearing Meredith threaten to kill anyone. She said he did not have a

gun, and she also made it clear to Detective Montenegro that Meredith did not use his car as a

weapon that night. As she explained, if Meredith had wanted to run over appellant, he had the

opportunity just before the shooting and did not do it.

        As Busbey testified about the actual shooting, she used photographs from the scene to

explain to jurors where she and Meredith were in relation to appellant and Chism. She said

Meredith twice circled a median depicted in State’s Exhibit 6 and, on the second trip, she

                                                –11–
immediately saw appellant and Chism. Appellant was holding an AK-47 rifle and Chism had a

black pistol. Busbey’s car, as it came around the corner, was positioned facing them. Busbey

testified that when Meredith saw that appellant and Chism were about to shoot them, he “started

driving at a high rate of speed” to “get out of there.” The distance from the median to the sidewalk

was more than fifty-four feet. One shot went through the windshield and struck Meredith in the

head.

        Even under appellant’s version of events, the jury could have determined he did not act in

self-defense that night. Appellant admitted he was in a safe place, the smoke shop, after the fight.

But, he said, he came out of the shop and claimed to hear appellant making verbal threats about

him. In response, he walked to a car in the parking lot, grabbed an AK-47 rifle from it, and then

headed in the direction of the alleged threat. From this, the jury could have determined appellant

was not acting reasonably but was acting on what he perceived to be a future threat by immediately

shooting Meredith. Although he claimed that the shooting was not planned and that he and Chism

ended up in the same place, with weapons, by coincidence, the jury could have concluded

otherwise. Finally, after firing into the car, appellant ran off, hid in an apartment complex, and

got rid of the gun by returning it to his friend. The jury could have believed this evidence showed

appellant’s consciousness of guilt. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000)

(recognizing, in sufficiency review, jury may consider evidence showing consciousness of guilt);

Martin v. State, 151 S.W.3d 236, 245 & n.8 (Tex. App.—Texarkana 2004, pet. ref’d) (defendant’s

consciousness of guilt shown by his flight from scene of shooting in murder case where defendant

claimed self-defense).

        In sum, the jury viewed the video recording, listened to the witnesses, and considered the

witnesses’ demeanor and credibility before rejecting appellant’s claim that he acted in self-defense

that night and finding that he either (1) intentionally or knowingly caused Meredith’s death or (2)

                                               –12–
committed an act clearly dangerous to human life. Given the evidence, we conclude the jury acted

reasonably in doing so. Viewing the evidence in the light most favorable to the verdict, and

deferring to the jury’s determinations regarding conflicts in the testimony and credibility of the

witnesses, we conclude a rational jury would have found the essential elements of murder were

proved beyond a reasonable doubt and also would have found against appellant on his defensive

claim of self-defense. Accordingly, we overrule the first issue.

                                        TIME PAYMENT FEE

       In his second issue, appellant contends a portion of a $25 time payment fee assessed as part

of the court costs in the case under section 133.103 of the Local Government Code is facially

unconstitutional. Specifically, he argues that the fees collected under subsections (b) and (d) were

not collected for a legitimate criminal purpose and therefore violate the separation of powers

provision of the Texas Constitution. He asks that we modify the judgment to delete $22.50 of the

court costs assessed.

       The State first responds that appellant has waived this complaint by failing to object below.

We disagree. Although appellant did not object to the costs in the trial court, the costs were not

imposed in open court and the written judgment does not contain an itemization of the imposed

costs. Thus, appellant may challenge the constitutionality of the costs for the first time on appeal.

See Johnson v. State, 537 S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam); Dulin v. State,

583 S.W.3d 351, 352 n.1 (Tex. App.—Austin, pet. filed).

       As to the merits of his complaint, this Court recently addressed this exact issue and

concluded subsections (b) and (d) of section 133.103 are facially unconstitutional. See Ovalle v.

State, No. 05-19-00136-CR, at *3 (Tex. App.—Dallas Jan. 22, 2020, no pet. h.). We therefore

sustain appellant’s second issue.




                                               –13–
       We modify the trial court’s judgment to reduce the total amount of court costs by $22.50

to reflect the reduction in the time payment fee from $25 to $2.50. As modified, we affirm the

trial court’s judgment.




                                                 /Amanda L. Reichek/
                                                 AMANDA L. REICHEK
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
181092F.U05




                                             –14–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 KENNETH WATTS, Appellant                            On Appeal from the 265th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-18-01092-CR         V.                       Trial Court Cause No. F17-76274-R.
                                                     Opinion delivered by Justice Reichek;
 THE STATE OF TEXAS, Appellee                        Justices Molberg and Evans participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

      (1) To reduce the total amount of court costs by $22.50 to reflect the reduction in the
Time Payment Fee from $25.00 to $2.50.

       As MODIFIED, we affirm the trial court’s judgment.



Judgment entered this 23rd day of January, 2020.




                                              –15–
