Opinion issued December 15, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00337-CR
                           ———————————
                MATTHEW JACOB CONTRERAS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 208th District Court
                           Harris County, Texas
                       Trial Court Case No. 1371344


                         MEMORANDUM OPINION

      A jury convicted appellant Matthew Jacob Contreras of murder and found

that he used a deadly weapon, which was not a firearm, in the commission of the

offense. See TEX. PENAL CODE § 19.02. The trial court assessed punishment at 40

years in prison. On appeal, appellant raises two issues, arguing that the evidence
was insufficient to support the jury’s implicit rejection of his self-defense argument

and that the court erred by excluding certain evidence pertaining to the

complainant’s gang involvement.

      We conclude that the State met its burden of persuasion as to the self-

defense claim, and that the evidence was legally sufficient to support the jury’s

verdict. In addition, we conclude that the evidentiary complaints were waived.

Accordingly, we affirm.

                                    Background

      Appellant Matthew Contreras had a close friendship with his mentally

impaired uncle, Lazaros Contreras. Lazaros shared a home with his brother, Abel,

his niece Lea Martinez, and three other relatives. Appellant and Lazaros had spent

a Saturday afternoon drinking beer when appellant’s friend Jaime Garcia joined

them at Lazaros’s house. Later the complainant, Erick Bejarano, arrived. Bejarano

suggested going out and robbing people, but Garcia dissuaded him. The men

continued drinking beer outside through the night. But Bejarano became aggressive

and threw beer bottles on the ground. Appellant left briefly to walk a visiting

neighbor home.

      Lazaros testified that when appellant left, Bejarano assaulted him with a beer

bottle, cutting his face and fingertips as he held up his hands defensively. When

appellant returned around 3:00 a.m., he saw Lazaros sitting alone in a chair near



                                          2
the garage, bleeding. After that, Lazaros went inside to wash up and did not return

outside until the police arrived.

      Appellant testified that Bejarano had revealed that he was a member of a

Central American gang. Because childhood experiences had familiarized him with

the behavior of gang members, appellant believed that he, his family, and their

property were in danger. Appellant testified that he grabbed a large chef’s knife

from the kitchen for protection. Meanwhile, Garcia and Bejarano had picked up

R.R., who was approximately 16 years old, and returned to Lazaros’s house to

retrieve an item that Bejarano had left behind. R.R. was carrying a handgun.

      The trial testimony about what happened next conflicted in some respects.

After Garcia parked by a streetlight near Lazaros’s house, a gun was fired. Garcia

testified that he was in in the driver’s seat, and Bejarano and R.R. were outside the

car at the time. Garcia said that one of them fired a gun, but he did not see who.

R.R. testified that Bejarano took the gun from him and fired it. Martinez testified

that she heard the gunshot, called the police, and then hid in her room until they

arrived. Abel did not hear a gunshot, and Lazaros did not remember hearing a

gunshot.

      Appellant testified that he heard a gunshot, which prompted him to run

toward Garcia’s car, in fear for his family, their home, and their possessions.

Garcia testified that appellant angrily approached the car, demanding to know who



                                         3
fired the gun. When everyone calmed down, the men walked toward the garage.

Garcia testified that appellant led the way, Bejarano followed behind, with R.R.

next. Garcia followed behind all three of the other men, and he did not see a gun

during the walk back to the garage.

      Near the garage, appellant and Bejarano began to fight. R.R., who testified

that Bejarano had been harassing and ridiculing appellant, left as soon as the fight

began. He hid the gun that he had been carrying in a nearby park, and he retrieved

it the following day.

      Garcia testified that appellant was angry about the gunshot, and all the men

were heavily intoxicated. Garcia testified that he tried unsuccessfully to break up

the fight when appellant pulled a knife on Bejarano. Appellant stabbed Bejarano,

who tried to escape and screamed in pain. When he fell to the ground, appellant

kicked him and continued to stab him. Garcia testified that at one point, the knife

became stuck in Bejarano’s head. Eventually appellant stopped stabbing Bejarano,

attempted to enter the house, and fled when he heard sirens and realized the door

was locked. Meanwhile, Bejarano lay dead or dying on the driveway. The police

arrived nearly immediately after appellant fled.

      Appellant described Bejarano as the aggressor, bearing down on him and

overpowering him physically. He testified that Bejarano was bigger and that he

was unable to push him away. Appellant testified that he did what he “felt



                                         4
necessary to protect” his “life and to protect the lives” of his “uncle and everybody

else that was in the house.” He admitted stabbing Bejarano to death, but he said he

feared for his life, that he blacked out, and that he had no memory of the stabbing.

Appellant stopped stabbing Bejarano when he realized that he was on the ground,

covered in blood, and not moving. He heard sirens, ran home, got in bed, and went

to sleep. At trial, he said he thought he would “wake up the next day and it would

all be a dream.” He stated: “I just didn’t want to be there. I just wanted to be

home.”

      Houston Police Department Officer R. Wieners responded to the scene of

the crime and found Bejarano dead on the driveway. He also found a bloody chef’s

knife with a bent tip. Officer J. Huckabee went to appellant’s house and found him

asleep in his bed, wearing only a shirt and covered with a blanket from his waist

down. His arms and face were covered in blood. His jeans, which were beside the

bed, also had blood on them. Officer Huckabee woke appellant, helped him get

dressed, and took him back to the scene of the murder to await the arrival of

homicide investigators. Officer Huckabee testified that he saw no injuries on

appellant.

      Appellant was indicted for murdering Bejarano with a deadly weapon. He

pleaded not guilty, and at trial he argued that he acted in self-defense. Appellant’s

argument centered on his fear of Bejarano, whom appellant believed was involved



                                          5
with a violent gang. At trial, forensic evidence showed that Bejarano had not

recently fired a gun when he was killed. The autopsy report showed that Bejarano

died from 35 sharp force wounds. The detective who took appellant’s statement

testified that he never mentioned anything about a gunshot. In addition, appellant

admitted that this was not the first stabbing for which he faced criminal

consequences. He testified that while at school two years earlier, he stabbed a boy

in the neck with a scalpel because he believed that the boy wanted to fight. Then he

had claimed that he could not recall the details of the stabbing because he had

blacked out.

      The jury found appellant guilty of murder, implicitly rejecting his self-

defense claim. Appellant filed a notice of appeal.

                                     Analysis

      Appellant raises two issues on appeal. He challenges the sufficiency of the

evidence to support the jury’s implicit rejection of his claim of self-defense. He

also argues that the trial court erred by excluding evidence relating to the

complainant’s affiliation with a gang.

I.    Sufficiency of the evidence

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable



                                         6
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks

v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). We defer to the

responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh

evidence, and to draw reasonable inferences from the facts. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 898–99. In so doing, we may not

reevaluate the weight and credibility of the record evidence and thereby substitute

our own judgment for that of the factfinder. Brooks, 323 S.W.3d at 898–99. This

standard applies equally to circumstantial and direct evidence. Laster v. State, 275

S.W.3d 512, 517–18 (Tex. Crim. App. 2009).

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or 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 § 19.02. A “person is justified in using 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). Deadly force is justified “to protect the actor

against” another’s “use or attempted use of unlawful deadly force” and to prevent

another’s “imminent commission” of murder, kidnapping, sexual assault, or

robbery. Id. § 9.32(a). A person is justified in using deadly force against another to

protect a third person if, “under the circumstances the actor reasonably believes



                                          7
them to be, the actor would be justified” in using force against the other under

section 9.31 or 9.32 “to protect himself against the unlawful force or unlawful

deadly force he reasonably believes to be threatening the third person he seeks to

protect” and “the actor reasonably believes that his intervention is immediately

necessary to protect the third person.” Id. § 9.33.

      The defendant bears the initial burden to produce evidence supporting a

justification defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

Once the defendant produces some evidence, the State then bears the burden of

persuasion to disprove the raised defense. Id. The burden of persuasion does not

require the State to produce evidence; it requires only that it prove its case beyond

a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.–

Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of murder after

he has raised the issue of self-defense, the State is required to prove the elements

of the offense beyond a reasonable doubt and to persuade the jury beyond a

reasonable doubt that the defendant did not kill in self-defense. Zuliani, 97 S.W.3d

at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d).

      Appellant admitted killing Bejarano by repeatedly stabbing him with a large

knife. This satisfies the elements of murder. See TEX. PENAL CODE § 19.02. On

appeal, appellant argues that the evidence was insufficient to support the jury’s



                                           8
implicit rejection of his argument that he was acting in self-defense. He argues that

the State failed “to produce enough evidence to disprove self-defense beyond a

reasonable doubt.” But the State had no burden to produce evidence as to the self-

defense issue and had only a burden of persuasion beyond a reasonable doubt that

appellant committed murder. See Zuliani, 97 S.W.3d at 594; McClesky, 224

S.W.3d at 409.

      Appellant also limits his insufficiency arguments to selected pieces of

evidence that fail to contradict his testimony, while ignoring the evidence that does

rebut his testimony. For example, appellant argues that his self-defense claim was

not contradicted by R.R.’s admission that he fled when appellant wielded a knife

(which was proof that R.R. did not witness the whole fight), Garcia’s testimony

that appellant stabbed Bejarano many times, and forensic evidence that Bejarano’s

blood was found on the knife and appellant’s clothes.

      While those isolated fragments of the record may not have contradicted

appellant’s self-defense claim, other parts of the evidence did. For example,

appellant testified that he defended himself from Bejarano’s overpowering assault,

but Officer Huckabee saw Contreras half-undressed, helped him get dressed, and

observed no injuries on him. Garcia testified that he tried to break up the fight, but

appellant continued assaulting Bejarano, who was screaming in pain and trying to

escape.



                                          9
      Ultimately, because appellant was the only witness to provide any evidence

relevant to his self-defense claim, the jury’s decision to accept or reject it hinged

on its assessment of his credibility. That credibility was undermined by appellant’s

own testimony: he testified that he blacked out during the fight. A rational jury

could have questioned appellant’s memory as to whether his use of deadly force

was immediately necessary at the time he killed Bejarano. The jury was also free to

consider the amount of alcohol he drank and his behavior after the stabbing. It was

the jury’s responsibility to weigh and resolve conflicting evidence, assess witness

credibility, and draw reasonable inferences in arriving at a verdict. See Brooks, 323

S.W.3d at 898–99. The jury’s verdict in this case is supported by the evidence, we

hold that it is legally sufficient, and we overrule this issue.

II.   Waiver of evidentiary issue

      In his second issue, appellant argues that the court erred by excluding

evidence of Bejarano’s association with a gang. In particular, he contends that the

court improperly excluded “gang tracker” records connecting Bejarano to the Mara

18th Street gang, an internet article about the gang from a British news

organization, and testimony from Garcia corroborating appellant’s testimony that

Bejarano bragged about his gang involvement.

      To preserve error regarding a trial court’s exclusion of evidence, a party

must make an offer of proof unless the substance of the evidence was apparent to



                                           10
the trial court from the context of the questioning. TEX. R. EVID. 103(a)(2). “The

primary purpose of the offer of proof is to enable an appellate court to determine

whether the exclusion was erroneous and harmful.” Holmes v. State, 323 S.W.3d

163, 168 (Tex. Crim. App. 2009). Appellant did not offer the “gang tracker”

records or the internet article into evidence, and he made no record of what Garcia

would have said if asked about Bejarano’s bragging about his gang involvement.

To the contrary, Garcia testified that he did not know Bejarano was associated with

the Mara 18th Street gang. Our independent review does not reveal that the

substance of the allegedly excluded evidence was apparent from the record, and

appellant does not argue otherwise.

      We hold that error was not preserved as to the allegedly excluded evidence,

and we overrule this issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           11
