                              *7f5-/5 r
             WO:
                                                                    ORIGINAL
                              IN   THE


             COORT       OF   CRIMINAL     APPEALS

                         AUSTIN,      TEXAS



                                                             COURT OF CRIWAUPPatS
                     MARK      BRANIGAN.
                                                                   SEP 14 2015
                          Petitioner.


                               vs .



                THE      STATE     OF    TEXAS

                         Respondent.




       On Petitioner For Discretionary Review
from the Second Court of Appeals. Fort Worth.                    Texas
                   No.    02-13-00490-CR




                                          Mark   Branigan
                                          Clements   Unit    -   188 7004
                                          y601   Spur 591
                                          Amarilio. TX 791^|L^fN
                                                      COURT OF CRIMINAL APPEALS
                                                                 SEP 16 2015

                                                            Abel Acosta, Clerk
                                 TABLE      DF   CONTENTS

TABLE OF CONTENTS                                       .

INDEX OF AUTH0RITES                                         11 .


STATEMENT REGARDING ORAL ARGUMENT-                          iii

STATEMENT OF THE      CASE                                  iii

STATEMENT OF PROCEDURAL HISTORY..                           iii

GROUNDS    FOR   REVIEW

GROUND ONE                                                  1.

GROUND TWO                                                  1 .

ARGUMENT ONE                                                1 .

ARGUMENT TWO                 '    .                         2.

PRAYER                                                      k .

APPENDIX




                                      l .
                                   INDEX    OF    AUTHORITIES




Cleveland       v.   State,
    177 S.U.3d 374 (Tex .App.-Houston [1st Dist.]               2005)

Jackson    v.    Virginia
    443 U.S.         307,   99   S.Ct.   2781    (1979)

Moore    v . State ,
    278 S .W .3d 444(Tex.App.-Houston [14th Dist.] 200 9)

McDuff    v.    State,
    939 S.W.2d 607 (Tex .Crim App-. 1997)

Zulianav.State,
    97 S.W.3d 589 (Tex .Crim.App.                  2003)




                                                 li .
                      STATEMENT   REGARDING     ORAL   ARGUMENT

       Because Petitioner is proceeding prase and the issues addressed

are not complex in a legal nature, he waives and does not request oral
argument .


                            STATEMENT     OF   THE   CASE

       Petitioner is convicted by jury of the felony offense of muraer
from a contaminated crime scene.and uncoorborated tesimony of various
witnesses which resulted in a 40-year imprisonment in lieu of the
evidence.


                      STATEMENT   OF    PROCEDURAL     HISTORY

       On October 26. 2012, the state filed an Indictment in which they,
allege that on or about August 2, 2012. in Tarrant County. Texas, the
Petitioner intentionally caused the death of. Danny Lafedge. by shooting
him with a firearm.    The indictment also allged a repeat offender
paragraph.

       Petitioner entered a plea of not guilty to the jury for guilt-
innocence and presented the affirmative defense of self-defense to
the murder charge.. The jury found Petitioner guilty and found true
the repeat offender enhancement and assessed punishment at 40-years
imprisonment.

       Petitioner made direct appeal;to the Second Court of Appeals

in Fort Worth. Texas and on June 4, 2015, the Court affirmed the murder

conviction in an unpublished opinion.          From said opinion Petitioner

now   seeks Discretionary Review.



                                       in .
                                    GROUNDS        FOR   REVIEW

ERROR    FOR   REVIEW      ONE


        THE SECOND COURT OF APPEALS ERRED IN FINDING THAT THE EVIDENCE
        WAS LEGALLY SUFFICIENT TO PROVE PETITIONER DID NOT SHOOT MR.
        LAFEDGE    IN    SELF-DEFENSE.

ERROR    FOR   REVIEW      TWO:

        THE SECOND COURT OF APPEALS ERRED IN RULING THAT THE TRIAL COURT
        DID NOT ABUSE IT'S DISCRETION IN DENYING THE MOTION FOR MISTRIAL
        FOR PROSECUTOR'S UNFOUNDED STATEMENT ON SELF-DEFENSE.
                                                     ARGUMENT

ERROR    FOR   REVIEW      ONE    RESTATED

        THE SECOND COURT OF APPEALS ERRED IN FINDING THAT THE EVIDENCE
        WAS LEGALLY SUFFICIENT TO PROVE PETITIONER DID NOT SHOOT MR.
        LAFEDGE    IN    SELF-DEFENSE.

        When evaluating a legal sufficiency claim,                         courts consider all

the evidence.           Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim .App .1997 ).

        Self-defense is classified as a defesne as distinguished from an

affirmative defense.              Zuiiana v. State,              97 S.W.3d 589,      594 (Tex.Crim.

App.    2003).     With    a defense,        the    burdens       at   trial alternate     between   the

defesne and the State, with the defendant bearing the burdenof produc

tion of some evidence to support the particular defense and,                                once the

defendant has met that burden,                 the state bearing the               burden of persuation

to   disprove     the    raised    defense.        Id.     In    short,   when    a defendant raises

the issue of self-defense,              the state,          in    order to   convict him or murder,

first must prove the elements of the offense beyond a reasonable doubt r.

and then has to persuade the jury that the defendant did not act in

self-defense.           Cleveland v. State,              177 S.W.3d 374,         379 (Tex .App .-Houston

[1st .Dist]      2005) .




                                                    Page 1
        The following facts were prsented to the jury which clearly,                                     in

relation          to    the    evidence     estadlishes      that    Petitioner      acted    in   self-

defense:


        )(        Petitioner was           not hunting the victim;

        )(        Petitioner was           attempting to return his           apartment whenthe

victim       approached             Petitioner in    an   agry manner;

        )(        The       victim was attempting to retrieve a gun;

        )(        The victim was under the influence of marijuana,                           hyddrocodone,

and    an    opiate          derivative;

        )"•(•'• The victim had previously been extremely proud of                             his gun and

even had          a picture          taken'with it showing him            throwing    gang    signs;

        )(        The victim sold drugs;

        )(        No        witness    ever saw    Petitioner fire         a gun;

        )(        No fingerprints of gun or               shells we conducted;

        )(        There was          a massing firearm from the crime sceene;

        )(        All the witness testimony contradicted each other;

   ~    )(    .'•Petitioner clearly was              defending       himself against being murdered

himself.


        Any rational                trier fact •could ••have     easily     determined       that the

Petitioner             was    only    defending    himself    against      being    assaulted      or   murdered

I .d   Jackson          §    319.


ERROR       FOR    REVIEW       TWO    RESTATED:    ' .


        THE       SECOND COURT OF APPEALS ERRED IN FINDING THAT IHE TRIAL COURT
        DID       NOT ABUSE IT'S DISCRETION IN DENYING THE MOTION FOR A MISTRAIL
        FOR       PROSECUiOR"S          UNFOUNDED    STATEMENT       UN   SELF-DEFENSE.




                                                          Page   2
           In reviewing page 44 of                the Appellate brief the statement made by

the    Prosecutor regarding                Petitioner loading                a gun was       expounded             upon

and    was       clearly    established         that     the    statment          about"loading              a gun    is

not    self-defnese          in    any form or          fashion."        The       statement made             by    the

prosecutor planted                a poisoned          seed in    the    minds       of the       jury that due

to    the    fact that       Petitioner         admitted        to    loading       a gun    negates          any    theory

of    self-defense.


           Appellat courts          review a trial court's                   denial       of a motion' for mistrial

as    an    abuse of discretion.                Moore     v.    State,       278 5.W.       3d   444,        449 (Tex.

App.-Houston          [14th Dist].          2009).        Mistrial are appropriate only for

highly       prejudicial          and   incurable        errors..      Id.        When determining             whether

a new       trial    nonetheless         is mandated           despite       an    instruction          to    disregard,

the        Appellate       courts look at             the facts and circumstances                   of the          case

to    see    if the       trial    court's      instruction           cured       the    presentation          of

objectionable matter before the Jury.                            Id.    @ 450.

           The    trial    court    took    the       curative       measure       of instructing             the    jury

to disregard the prosecutor's statement.                                However,the court's jury

instruction was             ineffective,          the damage was             already done          to    the jury

in the       effect they now believed that by loading a gun there is no way

for    self-defense.              Id.   Moore     @    45U.     Because       the       evidence        as    clearly

presented in error one uas= insufficient to support, a conviction,                                                  the

prosecutor needed to get the unlawful statement to the                                           jury to secure

a    conviction       and    it    worked.




                                                         Page    3
                                            PRAYER


        Wherefore,     premises considered,        Petitioner prays that the. Honorable

Court of Criminal        Appeals   grant review and after                review   of   the   errors

presented.herein,        reverse the   Second.Court of Appeal's judgment of

affirmation and Order the entry of an aquittal and or grant any and all

other   relief    to   which   Petitioner   is   entitled.

                                             Respectfully           submitted,




                                             Mark    Branigan
                                             Clements      Unit      t   188704
                                             9601    Spur 591
                                             Amarilio.         TX   79107-9606
                                             Pro    se
                                             August      24,    2015


                                   CERTIFICATE      OF   SERVICE


     This is to certify that I have on this 24th day of August, 2UT5,
 placed a true and exact copy of this document in the U.S. Mail, postage
 pre paid addressed to:

 Sharon    A.   Johnson,
 AssistantDistrict.Attorney
Tim.Curry Criminal Justice Center
401 W. Belknap
 Fort   Worth.    TX   76196




                                            Page    4
                                    APPENDIX


      Due to   the fact that Petitioner   is   a pro   se   prisoner 'and without

any   type of access to a copy machine he is not able to supply a copy

of the   only Second Court of Appeal's June 4, 201.5^opinion .




                                    Page   5.
                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                   FORT WORTH


                               NO. 02-13-00490-CR



MARK BRANIGAN                                                     APPELLANT


                                       V.


THE STATE OF TEXAS                                                      STATE




         FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                            TRIAL COURT NO. 1292313D




                            MEMORANDUM OPINION1



                                 I. Introduction


      Appellant Mark Branigan appeals his conviction for murder. In two issues,

Branigan argues that the evidence is insufficient to support the jury's

determination that he did not act in self-defense when he admittedly shot and

killed Danny Lafedge and that the trial court erred by denying his motion for

mistrial. We will affirm.


      1See Tex. R. App. P. 47.4.
                                   II. Background


      Heather Goldsmith testified that around 3:00 a.m. on August 2, 2012,

Brandon Jackson and his friends came by her apartment and stayed for a couple

of hours.   Later in the morning, Goldsmith and Lafedge, who was staying with

her, discovered a loaded Hi-Point 9 millimeter handgun between the armrest and

cushion of the sofa.        By Goldsmith's account, Branigan then came by the

apartment around 11:00 a.m. and Lafedge showed him the gun. Goldsmith said

that while she was on the phone, Branigan took the gun without permission and

left. Goldsmith stated that she called after him, repeatedly telling him to bring the

gun back, but that Branigan ignored her demands.

      Goldsmith said that she then got into her car and followed after Branigan,

shouting at him to bring the gun back, but that he just walked away even faster.

By Goldsmith's account, she then saw Branigan go into another apartment, so

she parked her car in front of it.     When Branigan came back out, Goldsmith

testified that she again told him he needed to return the gun and that he told her

he would return it later.     Goldsmith said that she started to drive back to her

apartment but that after talking with her boyfriend on the phone, she returned to

the apartment she had seen Branigan enter, knocked on the door, and asked to

speak with him. Branigan never came to the door, so Goldsmith drove back to

her apartment, where she told Lafedge that Branigan had taken the gun. From

there, according to Goldsmith, Lafedge went to retrieve it.
      Steven Perry testified that on the same day, he was in the apartment of

Megan and Melody Saltzman when he saw a car pull up in front with two people

inside the car. They got out and started arguing. According to Perry, Branigan

then went inside the apartment and the woman he had been arguing with drove

off. Perry said that Branigan appeared "flustered" and "really, really upset" and

that he was cursing about Lafedge.       Perry said that the woman in the car

returned and knocked on the apartment door, asking for Branigan.        Perry said

that he told her that he did not know who Branigan was and sent her away.

Perry testified that he then saw Branigan pull a gun out of his waistband, load it,

and wave the gun around.      Branigan asked Perry to give him a ride to some

nearby apartments, but Perry refused because he "did not want to be involved

anymore with what was going on." Branigan left on foot.

      As he watched Branigan from the apartment window, Perry said he saw

Lafedge come across the parking lot, "walking very fast" toward Branigan.

According to Perry, as Lafedge neared Branigan, Branigan pulled the gun from

his waistband and shot him. Perry testified that Lafedge did not have a weapon.

By Perry's account, Branigan shot Lafedge, then there was a pause, and then

Perry "heard a couple more [shots] and [he] saw [Lafedge] go to the ground."

Perry said that Lafedge fell behind a car, blocking his view of him, but he then

saw Branigan point the gun toward the area where Lafedge had fallen and

continue shooting.   Perry said that Branigan then ran away, carrying the gun.

Perry immediately ran outside, where he found Lafedge lying on the ground.
      William Hendrix testified that he was also in the Saltzmans' apartment

when Branigan showed up on August 2. Hendrix described Branigan as "pretty

irrational" and said that he was "yelling, screaming about a guy being at his

buddy's house selling his drugs and being around his wife."          According to

Hendrix, Branigan said he was going to "get that mother         " Hendrix said he

then heard a gun's slide being pulled back, and looked over to see Branigan

picking up a bullet that he apparently had just ejected from the chamber of the

gun he was holding. Hendrix said that Branigan then loaded the bullet back into

the gun's clip. Hendrix said that Branigan also asked him for a ride but that he

refused "[b]ecause [he] knew [Branigan] had a gun on him."

      When Branigan left, Hendrix also looked out the apartment's window and

watched Branigan until he was out of sight. Hendrix testified that he then noticed

a man walking across the parking lot and that although he could not make out the

words, he heard Branigan "yelling and screaming" at the man. Hendrix said he

heard four gunshots within short order.      Hendrix averred that he then went

outside, "peeked [his] head out around the corner," and saw Lafedge lying on the

ground with Branigan standing over him declaring "I got you now, mother—"

Hendrix said he heard Lafedge yell, "No," but Branigan continued to fire the gun

"until it was empty," at which point Branigan then ran away. Hendrix also testified

that Lafedge had no weapon.

      After the shooting, Hendrix went to visit his sister, Danielle Rice, who lived

in a neighboring apartment complex. To his surprise, he found Branigan inside
her apartment.    Hendrix said that Branigan asked him, "Is [Lafedge] dead?"

Hendrix asked Branigan to step outside. While outside, Hendrix said he asked

Branigan if he still had the gun and Branigan replied that he had thrown it into

"the creek."   Hendrix said that he then left his sister's apartment, called his

mother, and told her to get his sister out of the apartment. From there, Hendrix

flagged down a police officer and told him about the shooting.

      Zakarie Barksdale was also in the Saltzmans' apartment that day. Like the

testimony of others, Barksdale described Branigan as "irritated, aggressive," and

"definitely mad at someone about something." Barksdale said that Branigan was

using profanity and that his comments were directed at Lafedge. According to

Barksdale, the sound of Branigan dropping the gun's clip and ejecting a bullet

attracted his attention toward the fact that Branigan was holding a gun.

Barksdale recalled that after Goldsmith came to the apartment and was turned

away, Branigan left. After hearing a gunshot, Barksdale said he "ran outside to

see what was going on" and then heard "five more" shots. Once outside, he saw

Lafedge lying on the ground with Branigan standing over him. Barksdale said he

heard Branigan say, "I told you I was going to kill you." Like Perry and Hendrix,

Barksdale testified that Lafedge did not have a weapon. According to Barksdale,

after Hendrix had briefly pulled him back inside the apartment, he saw Branigan

run by the patio door "with the gun in his hand," so he ran back outside to

Lafedge and stayed by him as he died.
      Rice testified that on August 2, she and her sister were outside Rice's

apartment, watching their children play, when Branigan walked up and started a

conversation. She said that she recognized Branigan from his previous visits to

her neighbors. When Rice and her family went inside, Branigan accompanied

them, asking for a drink of water. Once inside, according to Rice, Branigan then

pulled out a "blunt" and offered to share it with them. Rice testified that as the

three of them smoked, Branigan told them that he had just shot and killed

someone. Rice said that Branigan also told them that no one saw him and the

police could not prove that he had shot someone because he had discarded the

gun. By Rice's account, Branigan said if he was questioned, he would say he

was with Rice and her sister, and he asked them if they would be his alibi. Rice

testified that Branigan "didn't really seem too like regretful" about shooting

Lafedge. When he asked her sister for a number, Rice said she then realized he

was serious about the shooting and his need for an alibi. Rice said that she then

gave Branigan a candle and some home decor catalogs and told him that he

could use them as proof that he was at her apartment during the time of the

shooting.

      Fort Worth Police Officer Andy Morquecho testified that when they located

Branigan, he told officers, "I'm not going to run from yiall; I almost got shot myself

at that apartment." Morquecho said that as he transported Branigan to the police

station after arresting him for an unrelated charge, Branigan volunteered that he

had discarded the gun used in Lafedge's murder.              On cross-examination,
defense counsel asked Morquecho whether Branigan's statement that he had

almost gotten shot was suggestive of self-defense. Morquecho replied, "In my

opinion, no. And the reason why, he was very calm and collected. A person that

I've noticed that had problems in the past or in a fight, they want to tell you their

whole story and they're flustered, and -- and this was not the case." Morquecho

testified that during his investigation of Lafedge's murder, he was unable to

recover the weapon used to kill Lafedge.

      Susan Roe, a forensic pathologist for the Tarrant County Medical

Examiner's Office, testified that Lafedge had suffered four entry gunshot wounds:

one to his left upper chest, one in the lower right side of his chest, one to the top

of his foot, and one to the fourth finger of his left hand.      According to Roe,

Lafedge also had graze wounds on the fourth finger of his right hand and his left

elbow. Roe said that the graze wounds might have been caused by the same

bullets that struck Lafedge's body. Roe testified that as a result of the gunshot

wounds, Lafedge suffered extensive injuries, including damage to his pulmonary

artery, his left lung, and his liver. Roe estimated that Lafedge was struck by

between four and six bullets.        Roe said that Lafedge's injuries were not

survivable.

      Vicki Hall, a trace evidence examiner with the Tarrant County Medical

Examiner's Office, testified that test results for gunshot residue on Branigan were

inconclusive. The gunshot residue test on Lafedge's hands, however, revealed

antimony, barium, and lead on the backs and palms of both his hands.
According to Hall, the residue on Lafedge's hands could have been deposited if

he held his hands up while being shot at.

      In its case-in-chief, the State offered a seventy-five minute excerpt of

Branigan's recorded interview with Fort Worth Police Detective Danny Paine. In

the interview, Branigan denied shooting Lafedge. Moreover, Branigan claimed to

have witnessed another individual commit the murder.      Branigan can be heard

telling Paine a narrative wherein Lafedge was planning to trade a gun for

marijuana and asked Branigan to go along to "watch [his] back."          Branigan

identified the individual Lafedge was allegedly planning the trade with as "G."

According to Branigan's statement, he told Lafedge not to hand "G" a loaded

gun. But, according to Branigan's story in the interview, Lafedge did give "G" a

loaded weapon and received a "nice-sized package" of marijuana in return.

      Branigan said that from there he saw the two men begin to exchange

words and heard twelve to thirteen gun shots; he ran from the scene without

"look[ing] back."   Branigan can be heard saying that he met a girl named

"Melissa" and told her that his friend got shot because his friend was stupid and

gave someone a gun. But then Branigan can be heard contradicting a portion of

his statement to Paine, saying he did not know Lafedge was going to trade the

gun and that he just thought Lafedge was carrying it for protection.        In the

interview, Branigan insisted he did not shoot Lafedge.

      After Branigan finished telling his story, Paine confronted Branigan with the

fact that several witnesses had identified him as the shooter. Paine can be heard


                                            8
telling Branigan that if Lafedge had done something to provoke or frighten him, or

if he thought Lafedge was about to shoot him, he needed to tell Paine about it.

Branigan responded, "I ain't fired no gun, man."

      Shortly thereafter, Paine again told Branigan that he could understand

Branigan shooting Lafedge if he thought he was about to get shot himself and

that if something like that happened, they needed to talk about it. For the next

fifteen minutes Paine continued to encourage Branigan to tell him whether he

had acted in self-defense, assuring him that everyone understands that a person

has the right to defend himself, and Branigan continued to deny shooting

Lafedge.

      The defense called Ellen Dexter, who testified that on August 2, she was

lying on her couch when she heard two gunshots and went outside. Dexter said

that she saw a man lying on the ground and saw a white woman and a black

man standing nearby. Dexter testified that the woman was having a discussion

with the man and that the woman was holding something that "looked like a gun."

On cross-examination, however, Dexter said that her memory is sometimes fuzzy

due to her medications, and she agreed that the item in the woman's hand could

have been a cell phone.

      Branigan testified at trial. He began his testimony by admitting to having a

prior conviction for robbery in Illinois, where he stole a car at gunpoint, and a
prior conviction for assault in Missouri, where he shot at a police officer.
      Branigan testified that Lafedge had lived with him until three days prior to

the shooting and that their living arrangements changed when Branigan's

girlfriend found out that the two of them were selling marijuana out of the

apartment. According to Branigan, his girlfriend told him they had to stop selling

drugs from their apartment but when he told Lafedge, the two had a falling out

because Lafedge did not believe Branigan's story and wanted to keep selling.

      By Branigan's account, when he went by Goldsmith's apartment on

August 2, she told him to take the gun home with him. He said that Goldsmith

then drove him to the Saltzmans' apartment and that he told her that when her

boyfriend got out of jail, he was going to tell him "something was going on"

between her and Lafedge.      It was then, according to Branigan, that Goldsmith

demanded that he give the gun back but that he refused.

      Branigan said that Lafedge had come to the Saltzmans' apartment looking

for him, but the apartment's occupants turned him away. Branigan said that he

waited for a brief time, hoping that Lafedge was gone, and then started toward

his own apartment.

      Branigan averred that it was then that Lafedge came up behind him with a

gun and fired two shots. Branigan testified that he was in fear for his life, so he

returned fire, emptying his gun.

      Branigan said that he then ran from the scene because he was scared,

and ended up at Rice's apartment, where he told her that he had "shot somebody

[he] loved, [he] cared for, but [Lafedge] forced [him] to do it." Branigan said that

                                        10
Rice offered to furnish him with an alibi, but he told her he did not need one.

Branigan testified that the story he told Paine in the recorded interview was a

fabrication.


       The jury returned a verdict of guilty, and after Branigan pleaded true to the

State's enhancement paragraphs, the jury assessed punishment at forty years'

incarceration.      The trial court entered judgment accordingly, and this appeal

followed.


                                    III. Discussion


       A.      Self-Defense


       In his first issue, Branigan argues that the "evidence is legally insufficient

to show [he] did not shoot Lafedge in self-defense." We disagree.

               1.     Standard of Review

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.




                                           11
      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170.    Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder.   Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      A defendant has the burden of producing some evidence to support a

claim of self-defense.   Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). After the defendant has introduced some evidence of a defense, the

State bears the burden of persuasion to disprove it.     Id.; Saxton v. State, 804

S.W.2d 910, 913-14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285,

291 (Tex. App.—Fort Worth 2004, pet. ref'd). This burden does not require the

State to produce evidence disproving the defense; it requires only that the State

prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton,

804 S.W.2d at 913; Dotson, 146 S.W.3d at 291. To determine the sufficiency of

the evidence to disprove self-defense, the appellate court asks whether, after

                                         12
viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the charged

offense beyond a reasonable doubt and also could have found against the

appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804

S.W.2d at 913-14; Dotson, 146 S.W.3d at 291.

            2.      Applicable Law

      As charged in this case, a person commits murder if he intentionally or

knowingly causes the death of a person or if he intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death

of a person.     Tex. Penal Code Ann. § 19.02(b)(1)-(2) (West 2011).     Also as

charged in this case, a person is justified in using force against another when

and to the degree the person reasonably believes the force is immediately

necessary to protect against the other's use or attempted use of unlawful force.

See id.§ 9.31(a) (West 2011).

            3.      Discussion


      Here, the evidence is sufficient to support Branigan's murder conviction

and the jury's rejection of self-defense. Viewing the evidence in the light most

favorable to the verdict and resolving any conflicting inferences in favor of the

prosecution, the evidence reflects that Branigan took a Hi-Point 9 millimeter

handgun from Goldsmith's apartment despite her repeated protests to return it.

From there, Branigan, in an agitated state of mind and specifically enraged

toward Lafedge, entered the Saltzmans' apartment, where multiple people saw


                                       13
Branigan brandish and load the gun. Testimony further revealed that Branigan

was specifically angry with Lafedge regarding another man's wife and drug

dealing.   Witnesses testified that Branigan's presence and demeanor in the

apartment, coupled with him possessing a firearm, caused them to fear giving

him a ride. Thus, Branigan left on foot, where he encountered Lafedge in the

parking lot and, after yelling and screaming at him, shot him. Multiple witnesses

testified seeing Lafedge on the ground as Branigan continued shooting him, and

multiple witnesses said that Lafedge did not have a weapon.        Further, multiple

witnesses testified that upon shooting Lafedge, Branigan could be heard stating

things like "I got you now, mother.   " and "I told you I was going to kill you." The

State also introduced evidence that Lafedge may have held his hands up to

defend himself against being shot at by Branigan.

      Multiple witnesses also testified that after fleeing the scene of the shooting,

Branigan bragged about killing Lafedge, told of disposing of the murder weapon,

and attempted to fabricate an alibi. See Clay v. State, 240 S.W.3d 895, 905 n.11

(Tex. Crim. App. 2007) (noting that evidence of flight evinces a consciousness of

guilt); see also Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994)

(op. on reh'g), cert, denied, 519 U.S. 1030 (1996) (holding that acts designed to

reduce the likelihood of prosecution, conviction, or incarceration for the offense

on trial show a consciousness of guilt).

      Also, after police apprehended him, Branigan's statement was that

someone else had shot Lafedge. And despite Paine giving Branigan repeated

                                           14
opportunities to claim self-defense, Branigan maintained his statement that

another person had killed Lafedge. See Ramirez v. State, 229 S.W.3d 725, 729

(Tex. App.—San Antonio 2007, no pet.) (op. on reh'g) (upholding a murder

conviction where the defendant claimed the shooting was an accident but failed

to call the police or hospital and told inconsistent stories about the incident).

      Although Branigan testified that he shot Lafedge in self-defense and that

Lafedge, and not "G," had come looking for him, it was for the jury to determine

whether Branigan's testimony was more credible than that of other witnesses,

and we are not permitted to re-evaluate the weight and credibility of the

evidence. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We must presume that the jury resolved any conflicts in testimony in favor of the

prosecution and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793.

       We hold that a rational trier of fact could have found Branigan guilty of

murder beyond a reasonable doubt by choosing to believe the evidence favoring

that he intentionally or knowingly caused the death of Lafedge, or that he

intended to cause serious bodily injury and committed an act clearly dangerous

to Lafedge's life that caused Lafedge's death, and by choosing to disbelieve the
evidence favoring that he was justified in using force against Lafedge to the

degree he reasonably believed immediately necessary to protect himself against
Lafedge's use or attempted use of unlawful force.           See Smith v. State, 352
S.W.3d 55, 63 (Tex. App.—Fort Worth 2011, no pet.) (holding that it was jury's

                                           15
prerogative to resolve conflicting evidence in favor of assault conviction and not

in favor of self-defense); see also Denman v. State, 193 S.W.3d 129, 132 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref'd) ("Because the jury, by finding

appellant guilty, implicitly rejected his self-defense theory, it necessarily chose

not to believe the testimony concerning such.").         We overrule Branigan's first

issue.


         B.    Motion for Mistrial


         In his second issue, Branigan argues that the trial court erred by denying

his motion for mistrial. We disagree. We review a trial court's denial of a motion

for mistrial under an abuse-of-discretion standard.          See Ocon v. State, 284

S.W.3d 880, 884 (Tex. Crim. App. 2009); Archie v. State, 221 S.W.3d 695, 699

(Tex. Crim. App. 2007).

         During the State's questioning of Branigan, the following exchange

occurred:

         [Prosecutor]: So before anyone pulled a gun on you, you had a
         plan to shoot someone, didn't you?

         [Branigan]: No, ma'am.

         [Prosecutor]: Well, that's not what you just told this jury.

         [Branigan]: All right.

         [Prosecutor]: What you just - you have to let me finish.
                          What you just told this jury is: I heard people
         coming around. No one has pulled a gun on you at all at this point,
         and you've decided, I'm going to start loading my gun, correct?

         [Branigan]: Yes, ma'am.


                                            16
      [Prosecutor]: You understand that's not self-defense in any form or
      fashion. Do you understand that?

      [Branigan]: No, ma'am.

      [Defense counsel]: Your Honor, I'm going to object to that on - on
      legal grounds. It doesn't even involve - loading a gun doesn't
      involve self-defense in these circumstances.


      THE COURT: I'm going to sustain the objection. You're -

      [Defense counsel]: Ask for the jury -

      THE COURT: Just a moment, Counsel. I've ruled. Rephrase your
      question.

      [Prosecutor]: Thank you, Your Honor.

      [Defense counsel]: Your Honor, if you - if you have made a ruling,
      I'd ask that the jury be instructed to disregard.

      THE COURT: I sustained the objection. Ladies and gentlemen,
      please follow my instruction that you are to disregard the last
      question and last response ifthere was one. Thank you.

      [Defense counsel]: And, Your Honor, I respectfully ask for a mistrial.

      THE COURT: Denied.

      A mistrial is an appropriate remedy only in extreme circumstances for a

narrow class of highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884;

Marchbanks v. State, 341 S.W.3d 559, 561-62 (Tex. App.—Fort Worth 2011, no

pet.) (explaining that a mistrial is appropriate only when "the error is so prejudicial

that expenditure of further time and expense would be wasteful and futile").

Because it is an extreme remedy, a mistrial should be granted only when less

drastic alternatives are insufficient to cure the harm and residual prejudice

remains.    Ocon, 284 S.W.3d at 884-85.           Generally, a trial court's prompt

                                          17
instruction is considered sufficient to cure improprieties that occur during trial,

and we are to presume that a jury follows the trial court's prompt instructions.

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

      Branigan argues that the prosecutor's questions and commentary that

Branigan's loading his gun was inconsistent with self-defense left the jury with an

Improper understanding of the law regarding self-defense and that the trial
court's instruction to disregard did not cure this misperception.         Branigan

attempts to buttress his argument by pointing out the State's later questioning of

Branigan as to why he had changed his testimony regarding his reasoning for

loading the gun and the State's closing argument wherein the prosecutor points

to this inconsistent testimony.

      First, Branigan did not object to the State's questioning him about his

changing testimony or to the State's closing argument; thus, to the extent that

Branigan is now appealing the State's questioning regarding his vacillating

testimony as to why he loaded the gun, he has failed to preserve this issue for

our review. See Habib v. State, 431 S.W.3d 737, 740^41 (Tex. App.—Amarillo

2014, pet. refd) (holding that appellant failed to preserve denial of closing

argument issue for appeal because "appellant did not voice an objection [during]

closing argument").

       Further, even assuming that the prosecutor's question and statement that

loading a gun is inconsistent with the legal definition of self-defense, Branigan

has not persuaded this court that we should fail to abide by the presumption that

                                         18
the jury followed the court's prompt instruction to disregard the State's question.

Gamboa, 296 S.W.3d at 580. Moreover, as the State points out, the trial court

correctly instructed the jury on self-defense in the jury charge, and the jury is

presumed to have followed the court's instructions. See Taylor v. State, No. 02-

02-000125-CR, 2003 WL 21197542, at *3 (Tex. App.—Fort Worth May 22, 2003,

no pet.) (mem. op., not designated for publication), citing Gardner v. State, 730

S.W.2d 675, 696-97 (Tex. Crim. App.), cert, denied, 484 U.S. 905 (1987)). We

overrule Branigan's second issue.

                                 IV. Conclusion


      Having overruled both of Branigan's issues on appeal, we affirm the trial

court's judgment.



                                                   /s/ Bill Meier


                                                   BILL MEIER
                                                   JUSTICE


PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 4, 2015




                                        19
Mark' Branigan
ClB-me!*l*«"Iffiit TBB70.0 4
9601   Spur 591
Amarillo, TX. 29.1 07-9696
                                                          I
                                           Texas-Court of Criminal Appeals
                                   ATTN:   CLERK
                                           Supreme Court Building
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                               TaTCn-'Sl B i4    CO x x
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