      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00800-CR



                                    Samuel Taylor, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 3030694, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Samuel Taylor guilty of murder, for which the district court

assessed a thirty-year prison term. See Tex. Pen. Code Ann. § 19.02 (West 2003). In his only point

of error, appellant contends that the evidence is factually insufficient to sustain the guilty verdict,

with particular reference to the jury’s failure to find that he acted in self-defense. We find the

evidence to be sufficient, and will affirm the judgment of conviction.

               On April 14, 2003, the deceased, Harold Eugene Owens, Jr., sold appellant some

cocaine for $200. Later that day, after deciding that the quality of the drug was not what he had

expected, appellant called Owens and demanded a meeting. Owens’s friend, Robert Fennell, drove

Owens to the house where the meeting was to take place. Fennell testified that Owens entered the

house and called out appellant’s name. Appellant emerged from a back room and the two men began

to argue. According to Fennell, appellant was the aggressor and reached toward Owens. The men
began to exchange punches, striking each other in the face. Owens pushed appellant into a wall with

enough force to put a hole in the wall. Fennell testified that appellant began to fumble in his pocket

as Owens continued to hit him with his fists. Appellant produced a small pistol and shot Owens.

               Steven Nelson also witnessed the altercation. He testified that Owens was angry

when he entered the house and called to appellant, “Bring your bitch ass out here.” When appellant

entered the room, Owens attacked him and the men began to exchange blows. Appellant fell to the

floor, reached into his pocket for the pistol, and shot. Although Nelson did not actually see Fennell

push appellant, he testified that he thought that Fennell was helping Owens during the fight.

               After the shooting, Owens and Fennell ran from the house, followed by appellant.

Owens ran across the street and fell in a neighbor’s yard. Witnesses described appellant standing

over him as Owens pleaded for his life. Appellant left the scene on foot and Owens called out to

Fennell for help. Fennell drove Owens to a nearby fire station, where he died soon after arriving.

               When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979)

(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal

sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency).

When the issue of self-defense was submitted to the jury, we must also determine whether a rational

trier of fact could have found against the defendant on that issue, that is, found beyond a reasonable

doubt that the defendant’s conduct was not justified. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).



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               In a factual sufficiency review, all the evidence is considered equally, including the

testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836

S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). Although due deference must be accorded the

fact-finder’s determinations, particularly those concerning the weight and credibility of the evidence,

the reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed factually insufficient

to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too strong to

support a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85; see Johnson,

23 S.W.3d at 11.

               As a general rule, a person is justified in using deadly force in self-defense if he

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

use or attempted use of unlawful deadly force, and if a reasonable person in his situation would not

have retreated. Tex. Pen. Code Ann. § 9.32 (West 2003). A person has the right to defend himself

from apparent danger to the same extent as he would if the danger were real. Hamel v. State, 916

S.W.2d 491, 493 (Tex. Crim. App. 1996). Appellant argues he was attacked by two “ruthless drug

dealers,” thrown against a wall, and knocked to the floor. He also cites evidence that Owens may

have been a gang member. Under the circumstances, appellant urges that the great weight of the

credible evidence shows that he reasonably believed his life to be in danger and was justified in his

use of deadly force.

               Whether appellant reasonably believed that the use of deadly force was immediately

necessary under the circumstances was a fact issue for the jury. Id. Even if we accept as true



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Nelson’s characterization of Owens as the aggressor and assume that Fennell was lending moral and

perhaps physical support to Owens in his struggle with appellant, there is no evidence that either man

was armed or that either actually used deadly force against appellant. There is no evidence that

appellant sought help from Nelson or any other person who was present, or that appellant attempted

to flee from Owens. Considering all of the evidence in the record and applying the standard of

review prescribed in Zuniga, we hold that the State’s evidence of guilt was not so weak and the

evidence appellant cites as justification for his conduct was not so strong as to preclude a rational

jury from finding beyond a reasonable doubt that appellant’s use of deadly force was unjustified.

               The point of error is overruled and the judgment of conviction is affirmed.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: May 25, 2006

Do Not Publish




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