                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00353-CR
                           ____________________

                     LLOYD WAYNE LOTSON, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                On Appeal from the County Court at Law No. 3
                           Jefferson County, Texas
                           Trial Cause No. 303455
________________________________________________________________________

                          MEMORANDUM OPINION

      Lloyd Wayne Lotson (Lotson) appeals his misdemeanor conviction for

assault of T.G. 1, an adult female. See Tex. Penal Code Ann. § 22.01 (West Supp.

2014). The jury found Lotson guilty, and the trial court assessed punishment at one

year of confinement. In one appellate issue, Lotson argues that the evidence was

      1
        We identify the victim by using initials that disguise her identity. See Tex.
Const. art. 1, § 30(a)(1) (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
                                         1
legally insufficient to support his conviction because the State failed to disprove

his assertion of self-defense beyond a reasonable doubt. We conclude the evidence

was legally sufficient to support his conviction and affirm the trial court’s

judgment.

                          EVIDENCE PRESENTED AT TRIAL

Testimony of T.G.

      T.G. testified that she met Lotson after she moved to Beaumont in 2014.

Lotson asked T.G. out on a date and T.G. told Lotson she was not looking for a

romantic relationship. According to T.G., she and Lotson were only friends and

they would “hang out” every other day or two. T.G. testified that Lotson was “a

little bit too controlling” and he was “pushing the boundaries of the questions that

he would ask [her]” regarding people he did not recognize that would show up at

the house where she was staying. T.G. explained at trial that when she told him

that she “didn’t think it was really something he should be doing” and that “[i]t

wasn’t [her] house[,]” Lotson “kind of backed off and apologized.” On some

occasions, Lotson would upset T.G. “because he would come right back to that

same thing.” T.G. began to distance herself from Lotson and she would not answer

his calls. T.G. testified that Lotson would “call and maybe text [T.G.]

apologizing[.]” Prior to the assault, Lotson and T.G. had a disagreement and she

                                         2
told him not to call her again. At some point, Lotson started calling T.G. again.

T.G. admitted that she had sexual relations with Lotson on one occasion, but T.G.

testified that she only considered Lotson a friend.

      T.G. testified that on June 1, 2014, she was working at a dollar store when

Lotson told her he needed to talk to her and said he could pick her up when she

finished work that day. T.G. told him she did not know if she wanted to do that,

and he said that he did not want to upset her. T.G. agreed and Lotson picked her up

from the store after work. They made a few stops, including a stop to get groceries

because T.G. had agreed to cook dinner. They also stopped at a store so T.G. could

buy “[s]ome underwear, some soap, toothbrush, things like that[.]” T.G. testified

that she did not know at that time if she would be staying the night with Lotson.

According to T.G., she was “adamant about not staying the night with him.”

      Once they arrived at the garage apartment where Lotson lived, T.G. cooked

dinner, they ate, and she took a bath. T.G. testified she consumed “no[] more than

two” beers. According to T.G., they were getting along and T.G. felt like they had

“kind of crossed a big hurdle[.]”At some point later, Lotson accused T.G. of

“something going on” between T.G. and two other people. T.G. testified that she

got upset, told Lotson that “[t]his is why we had issues before[,]” and she told him

she wanted to go home. Lotson told her he was “not gonna let [her] leave this late.”

                                          3
She was unable to leave without a key to the deadbolt lock on the door. When she

tried to get out of the door, Lotson grabbed her shoulder or her arm. According to

T.G., she told him she would call her sister-in-law and then Lotson took her phone.

She told him that if he would not give her the keys she would walk home. She then

explained at trial that, when she could not get out the door, she went into the

bathroom and tried unsuccessfully to get out of the bathroom window and hurt her

arm in the process. T.G. testified that she was crying and cursing and “ready to

fight” because she felt like Lotson was holding “[her] against [her] will and [she]

wanted to go[,]” and he was “trying to talk [her] down” and convince her to stay.

He grabbed her again and she told him not to put his hands on her and that if he did

not let her leave she would fight him and “do whatever [she] ha[d] to do” to leave.

      T.G. testified that she hit Lotson and they “tussled” because she felt like he

was keeping her there against her will. She testified that she hit him when he was

trying to restrain her and she could not get the keys. She attempted to get out the

front window by breaking it and Lotson got angry. T.G. told Lotson she wanted to

leave and he “got up to hit [her] again” and told her she was not going to leave.

They ended up in another “tussle” and T.G. hit Lotson and he hit her and they

ended up on the floor. He had one of her arms pinned down and had his body

weight on her, and she continued to hit him in an attempt to get him off of her.

                                         4
T.G. testified that Lotson punched her in the face and hit her head on the floor.

According to T.G., Lotson was holding her down with his forearm, punching her,

and telling her she could not leave. She explained at trial that she continued to hit

him, she bit him, and she told him to let her go. She “blacked out” and the last

thing she remembered from that night was Lotson punching her in the face. When

she woke up the next morning, her “head didn’t feel right[]” and she felt nauseated

and “light headed.” She asked Lotson if he would take her to the hospital and he

told her he had to go to work. She still did not have her phone so she asked Lotson

to call her sister-in-law to come get her, and he told T.G. that they will “think that

[he] did this to [her].” She told him that if he took her to the hospital, she

“wouldn’t tell them that he did it[.]” He agreed to take her to the hospital, and he

told her to say that she fell and hit her head.

      According to T.G., once at St. Elizabeth Hospital emergency room, Lotson

helped her walk because she was having trouble walking. A nurse took T.G. back

to examine her and Lotson went to park the car or call his job. T.G. testified that

she told the nurse that she had fallen and the nurse did not believe her. The nurse

asked, “Did he do this?” and T.G. told the nurse, “No.” The nurse asked again,

“Did he do this?” Someone from the hospital called the police. Once T.G. was put




                                            5
in a hospital room and being treated, but prior to the police arriving, Lotson came

into the room.

      T.G. testified at trial that when the officer arrived and asked T.G. what

happened, she initially told the officer that she fell “or something like that” and

then she told him that she was assaulted at a store. She testified that she told the

officer that a man asked her for money and when she did not give him any money,

she turned away and he attacked her. T.G. then explained to the jury that Lotson

caused her injuries and that she felt like she had to make up a story about what

happened to protect her family. According to T.G., she left the hospital and went

home with her sister-in-law. T.G. testified that later that night Lotson called, and

then the next day, he called again. Lotson told T.G. that he was checking on her

and making sure she would not tell anyone “he did it” because he “would have

problems.” According to T.G., due to her injuries she spent the day of June 3,

2014, in bed recovering and could not leave the house. T.G. explained that she

suffered a concussion and had “a lot of pain,” and she was still under a doctor’s

care for the injury to her eye. T.G. testified that she and Lotson hit each other

several times during the confrontation but that she was “fighting him

back[.]”Photographs of T.G.’s injuries taken by law enforcement were admitted

into evidence. T.G. testified that prior to moving to Beaumont she had been

                                         6
charged with assaulting a police officer in Houston and that in the past she had also

been assaulted by her son.

Testimony of Officer Williamson

      Officer Williamson (Williamson) with the Beaumont Police Department

testified that he was dispatched to St. Elizabeth Hospital emergency room on the

afternoon of June 2, 2014, in reference to an alleged assault. Upon his arrival at the

emergency room, Williamson was directed to a room where he spoke to T.G., the

alleged victim. Williamson observed that T.G.’s “left eye was swollen and she had

swelling and redness around her face[,]” she “had red marks around her upper

body[,]” and “her right hand was red.” Williamson agreed that, based on his

observation of T.G.’s injuries, it appeared she had been assaulted.

      Williamson testified that he asked T.G. what happened, and T.G. told him

that the previous evening she had been at a store (a different store from the one

where she worked), and an unknown black male approached her and asked for a

dollar. Williamson said that T.G. told him that she told the man she did not have a

dollar, the black male called her a liar, pushed her to the ground, and “started

punching her in the face and upper body and slamming her head against the

concrete.” Williamson said T.G. told Williamson that she was surprised by the

assault and fought back, but blacked out at some point. According to Williamson,

                                          7
T.G. did not remember a lot of the details of the assault. Williamson explained at

trial that the entire time he was talking with T.G. there was a black male with T.G.

in the private hospital room and that the black male would answer Williamson’s

questions at times and Williamson would tell him that Williamson wanted to hear

the answers from T.G. Because T.G. was unable to fill out a hand-written

statement due to her injuries, Williamson gave T.G. a blank witness statement and

a non-consent form in case she wanted to file a report.

Testimony of Detective Spikes

      Detective Spikes (Spikes) with the Beaumont Police Department testified

that on June 3, 2014, he received a report from the patrol division regarding the

assault on T.G. Spikes explained at trial that on that same day, after reading

Williamson’s report, he called T.G. and asked her if she wanted to pursue charges.

According to Spikes, T.G.’s voice was “real faint” and “like she was asleep” and

he asked her about some inconsistencies in the report. He asked her why she had

gone to another dollar store across town after she had just gotten off work at the

dollar store where she worked, and he asked her why the manager at the dollar

store where T.G. reported the assault took place told Spikes that an assault did not

happen there that day. According to Spikes, T.G. then told him that it was actually

Lotson who assaulted her, and she repeatedly told Spikes she was afraid of Lotson

                                         8
and did not want him “to hurt [her] family if [she] told [Spikes] what happened.”

Spikes testified that T.G. had not turned in the witness statement that Williamson

had given her.

      Detective Spikes said that T.G. then agreed to speak about the case with

Spikes in his office on June 5, 2014. Spikes testified that it took T.G. at least ten

minutes to walk upstairs to his office and she was “barely walking” due to her

injuries. He noticed that her eye was swollen shut and that she had a lot of bruises

on her arms. Spikes took a typed statement and a video statement from T.G. A

warrant was issued for Lotson’s arrest. Spikes told the jury that it was common for

victims to have inconsistent statements due to fear of the suspect retaliating against

them. According to Spikes, Spikes asked Lotson’s parole officer to contact Lotson

and the parole officer told Lotson that Spikes was looking for him. Lotson then

went to the police station, did not ask to speak to Spikes, but then filed a report

claiming that he was assaulted by T.G.

Testimony of C.B.

      C.B., T.G.’s brother, testified that he had met Lotson through T.G. and that

Lotson had been coming over to C.B.’s house for a couple of months prior to the

assault. C.B. explained that at first Lotson and T.G. were friends and then it




                                          9
“looked like it was gonna become a relationship.” At first C.B. was not concerned

about T.G. and Lotson’s relationship, but then “it got a little strange.”

      C.B. testified that he came home on June 3, 2014, after being out of town for

work. While out of town, he learned that T.G. was in the hospital and that she

could possibly lose her eye and had been badly beaten. According to C.B., when he

arrived home, T.G. was there and “[s]he looked like she had been beat up[,]” had

bruises all over her, and had a swollen eye. C.B. helped care for T.G. the rest of the

day. C.B. testified that T.G. was too scared to leave the house and kept telling him

that she did not want Lotson to come there. According to C.B., T.G. did not leave

his house that day.

      C.B. testified that on June 2, 2014, the day prior to him coming back to

town, Lotson called him late at night and said that, when C.B. got back into town,

he and C.B. needed to go somewhere quiet and talk about what happened with

T.G. At first, Lotson told C.B. that Lotson and T.G. were “jumped” in front of the

store where T.G. worked, and C.B. told Lotson he did not believe him. C.B. asked

Lotson to tell him what really happened and the conversation got heated and

Lotson insisted that he needed to speak with C.B. in person.




                                          10
Testimony of Officer Campbell

      Officer Campbell (Campbell) with the Beaumont Police Department

testified that on June 6, 2014, he was dispatched to Lotson’s address regarding an

assault that Lotson reported happened on June 3, 2014, at approximately 1:30 in

the morning. Lotson reported to Campbell that Lotson was asleep at Lotson’s

apartment when he was awakened by his girlfriend (T.G.) who was pacing back

and forth through the apartment. Lotson told Campbell that T.G. was upset about

Lotson’s living arrangement, and Lotson said he tried to console her and asked her

to calm down and come back to bed. Campbell explained that Lotson told him the

girlfriend refused and she threw a cooking pot at him. Campbell testified that

Lotson told him he grabbed T.G., wrapped his arms around her, she grabbed his

testicles, and he pushed her down to the ground. Campbell said that Lotson told

him Lotson then picked T.G. up off the floor to escort her out of the apartment but

she ran to the bathroom and punched the window twice, breaking it. Campbell

testified Lotson told him that T.G. left the apartment but a few hours later she

wanted to come back in. Lotson said he let her back into the apartment and she told

him she was not feeling well and wanted to go to the hospital. According to

Campbell, Lotson later showed Campbell a bite mark on the left side of Lotson’s

chest and a small cut on Lotson’s wrist. Campbell testified he gave Lotson a non-

                                        11
consent form to sign if he wanted to press charges, a card with the case number on

it, a witness statement, and a victim’s assistance packet.

Testimony of Detective Phillips

      Detective Phillips (Phillips) with the Beaumont Police Department testified

that she received a report in reference to an assault family violence case in which it

was alleged that Lotson was assaulted by T.G. Phillips explained at trial that she

spoke to Officer Spikes about T.G.’s case. Phillips called Lotson regarding his

report that he was assaulted by T.G. When Lotson met with Phillips on June 11,

2014, at the Beaumont Police Department, because of the other assault in which

T.G. alleged that she was assaulted by Lotson, Phillips read Lotson his Miranda

rights. Phillips explained at trial that Lotson came to the police station voluntarily

and he was not under arrest at that time.

      At the police station, Lotson told Phillips that Lotson and T.G. were asleep

in his apartment; T.G. woke up and was pacing around the room intoxicated; T.G.

accused Lotson of having a relationship with Lotson’s landlady; T.G. started

throwing pots and pans; Lotson grabbed her to restrain her; T.G. grabbed his

testicles, and he “slammed her to the ground.” Lotson told Phillips that T.G. left

and came back about thirty minutes later and he got an ice pack for T.G.’s face.

According to Detective Phillips, Lotson could not explain where T.G.’s injuries

                                            12
came from and he appeared to be “trying to minimize that [T.G.] had injury.”

Lotson told Phillips that T.G. asked Lotson to take her to the hospital because she

was hurting, and that he and T.G. discussed on the way to the hospital what they

were going to tell the medical personnel about what happened. The Detective

further testified that Lotson said he told T.G. she could tell the truth about what

happened but that T.G. said she was going to say she was robbed in front of the

dollar store.

      Lotson showed the Detective scratches on his face, a bite mark on his chest,

and a cut on his wrist, and “rambled” during the interview, and the Detective felt

“[Lotson] was being untruthful with his story.” Phillips explained at trial that she

felt like he was “trying to defend himself in a case against him” and “didn’t seem

concerned about” the alleged assault by T.G. on Lotson. According to Phillips,

based on Lotson’s inconsistencies in his statement, she did not believe Lotson’s

version of what transpired, and she determined that T.G. did not assault Lotson.

Lotson was arrested at Phillips’ office.

Testimony of Lotson

      Lotson testified that on the day of the incident, T.G. texted him while he was

in church. He called her back and she wanted him to pick her up at 4:00 p.m. He

testified he picked T.G. up from work and they went to a gym, to several stores

                                           13
which he named in his testimony, but not the one where T.G. worked. According

to Lotson, around 8:00 or 8:30 p.m., T.G. cooked dinner at his house, they took

baths, and then ate dinner. Lotson testified that they went to bed around 10:00 or

11:00 p.m. “to go to sleep.” According to Lotson, he woke up between 1:40 and

1:45 a.m. and T.G. was not in the bed. Lotson testified he got up and found T.G. on

the couch and asked T.G. why she was not in bed with him. Lotson explained at

trial that T.G. told him she was upset about the woman that owned the garage

apartment. According to Lotson, T.G. “got to talking crazy[,]” Lotson told her to

lie down, and T.G. started throwing pots and pans at Lotson. Lotson testified he

grabbed T.G. to restrain her, she grabbed his face, and then he “took her down.”

Lotson testified that T.G. then bit Lotson and grabbed his testicles. After the

“tussle” they both got up and T.G. began cursing and broke a window. Lotson told

her she needed to leave, she tried to leave only wearing panties and Lotson’s tank

top, and Lotson told her she had to put clothes on.

      According to Lotson, T.G. put on her clothes and left, but knocked on the

door about thirty minutes or an hour later. Lotson testified that T.G. was “so

intoxicated she c[ould]n’t move[,]” and he then realized that she had been

intoxicated before she left. He stated at trial that he was able to get her to come

back inside and go back to bed, and that she told him she was sorry. T.G. said she

                                         14
was hurting and he offered her ice but she declined. T.G. ultimately asked Lotson

to take her to the hospital. Lotson agreed but asked her what she was going to tell

the hospital staff about her injuries.

      According to Lotson, the hospital staff spoke with T.G. outside of Lotson’s

presence and he left the hospital for “30 minutes at most[.]”Lotson explained at

trial that when he came back, T.G. told Officer Stephens that she had been robbed

at a dollar store. Lotson testified that he left after T.G.’s family arrived at the

hospital. According to Lotson, T.G.’s family members started asking questions and

making threatening phone calls to Lotson. T.G.’s brother called Lotson that night

and asked what happened to T.G. and Lotson told him he would talk to the brother

if the brother would come to Lotson’s house. Lotson testified that T.G.’s brother

threatened him and Lotson hung up. Lotson also testified about the dates and

statements he made to law enforcement regarding the incident, however he was

inconsistent when he described the dates and details thereof.

      Lotson stated at trial that during the confrontation with T.G. he “[m]ost

likely” caused her injuries but that he was acting in self-defense. At one point

during his testimony, Lotson admitted striking T.G. with his hand “in self-

defense[,]” but then shortly thereafter he stated he did not hit her. Photographs of

Lotson’s injuries were admitted into evidence. Lotson testified that at the time of

                                         15
trial he was on parole until 2032 for burglary of a habitation that occurred in 2001,

and he agreed that if he is convicted of this assault he will return to prison for “a

long time.”

      The jury charge included an instruction on self-defense. The jury returned a

verdict finding Lotson guilty of assault and the trial court sentenced Lotson to one

year of confinement.

                                 LEGAL SUFFICIENCY

      In his sole appellate issue, Lotson contends the evidence is legally

insufficient to support his conviction because the State failed to disprove Lotson’s

assertion of self-defense beyond a reasonable doubt. It is the defendant’s burden to

produce some evidence to support a claim of self-defense. Zuliani v. State, 97

S.W.3d 589, 594 (Tex. Crim. App. 2003). Upon producing such evidence, the State

has the burden of persuasion to disprove the defense. Saxton v. State, 804 S.W.2d

910, 913 (Tex. Crim. App. 1991). The State is not required to produce evidence to

refute the claim but is required to prove its case beyond a reasonable doubt. Id. The

issue of self-defense is a fact issue to be determined by the jury, which is free to

accept or reject the defensive issue. Id. at 913-14. When the jury is properly

instructed on self-defense and the jury returns a guilty verdict, the jury’s verdict of

guilty is an implicit finding rejecting a defendant’s self-defense theory. Id. at 914.

                                          16
      A person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). We

review all of the evidence in the light most favorable to the verdict and determine

if 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, 319 (1979); Brooks

v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Because the State carries

the burden of persuasion to disprove self-defense beyond a reasonable doubt, we

review a challenge to the sufficiency of the evidence supporting a jury’s rejection

of a claim of self-defense under the Jackson standard. Saxton, 804 S.W.2d at 914.

      In reviewing the evidence, we give deference to the jury to resolve any

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the facts. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). We treat direct and circumstantial evidence equally: “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is entitled to judge the

credibility of the witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991).

                                         17
      The jury heard T.G.’s testimony regarding the assault. She explained to the

jury that Lotson was “controlling” and that on the evening in question, Lotson

would not let her leave the apartment. The jury heard T.G. testify that she hit

Lotson because he was keeping her at the apartment against her will, that they

“tussled[,]” and that she hit Lotson in an attempt to fight back. The jury heard T.G.

testify that Lotson punched her in the face, hit her head on the floor, and that she

“blacked out” after she was punched. The jury also heard testimony from T.G. that

she initially lied to the hospital staff and to law enforcement because she was

afraid of Lotson. The jury heard testimony from law enforcement personnel and

C.B. about the extent of T.G.’s injuries. The jury had other evidence such as

photographs of T.G.’s and Lotson’s injuries and heard testimony from the officers

relating to their investigation. The jury also heard Lotson’s testimony that he was

on parole for burglary of a habitation, and his testimony about what he said

happened. The jury, as the sole judge of the credibility of the witnesses, could have

disbelieved Lotson’s version of what transpired during the confrontation with T.G.

See, e.g., Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

      After viewing the evidence in the light most favorable to the verdict, we

conclude that a rational jury could have found the essential elements of the offense

beyond a reasonable doubt and could have found against Lotson on his self-

                                         18
defense claim. We overrule Lotson’s issue on appeal and affirm the trial court’s

judgment.

      AFFIRMED.

                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on March 24, 2015
Opinion Delivered September 23, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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