Opinion issued January 29, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-17-00788-CR
                            ———————————
                       GMARKOUS WILSON, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 412th District Court
                            Brazoria County, Texas
                        Trial Court Case No. 78823-CR



                          MEMORANDUM OPINION

      A jury convicted appellant, Gmarkous Wilson, of murder, found three

enhancement paragraphs true, and the trial court assessed his punishment at 60

years’ confinement. In two issues, appellant contends that (1) the evidence is legally
insufficient to support his conviction, and (2) the trial court erred by including a

charge allowing the jury to convict him as a party to the offense. We affirm.

                                 BACKGROUND

      The facts in the light most favorable to the verdict are as follows. On April 6,

2016, appellant’s black Malibu sedan and a white Crown Victoria sedan with two

men inside, were seen parked outside the complainant’s home. The complainant,

Curtis Arvik, came home to find his house being burglarized and saw two men run

out of his home. The three burglars escaped in the Crown Victoria and the Malibu,

and Arvik gave chase in his red Nissan Titan truck. The white Crown Victoria slid

into a ditch, and Arvik forced the black Malibu into the ditch with his truck. The two

men from the white Crown Victoria fled the scene. At this time, Arvik got out of his

truck and walked towards the ditch as appellant tried in vain to drive his Malibu out

of the ditch.

      Arvik proceeded to confront appellant, and the two began “wrestling” or

“tussling” until suddenly, Arvik stepped back and threw his hands up. Within

seconds, appellant fired two gunshots at Arvik, who fell into the ditch. Appellant

backed away from the scene while still shooting, got into Arvik’s red truck, and

drove away. Arvik’s neighbor, Charles Terry, found Arvik in the ditch “laying over

on his stomach” and “breathing really hard.”




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      John Johnston, whose vehicle was parallel to Arviks’s red truck when it

stopped, testified that he saw Arvik and appellant wrestle one another; saw Arvik

step back and throw his hands up; saw appellant make a move; and then “the gun

came out.” Within seconds, Johnston heard gunshots, saw Arvik stumble and fall

into the ditch, and saw appellant get in the red truck and drive away. Issac Schiel

and his mother, Sherry Schiel, testified that they too saw a man [Arvik] get out of

the red truck; saw appellant with a black pistol in his hand; saw the man from the

truck step back and put his hands up; and saw two men lock bodies, “wrestling” or

“tussling.” The Schiels heard gunshots and saw appellant jump out of the ditch, run

to the red truck, and drive off. Terry testified that he also saw appellant back away

while shooting at Arvik, get in the red truck, and drive away.

      Although none of these eyewitnesses identified appellant as the shooter,

Deputy McDonald testified that, once he arrived on the scene, he gave chase to the

suspect leaving in Arvik’s red Nissan truck and identified appellant as the person he

took into custody. He also saw appellant drop a black pistol out of the driver’s side

window of the red truck. A magazine fitting the pistol was found on the floorboard

of the red truck appellant had been driving, and the Malibu at the scene had

appellant’s fingerprints and DNA on the steering wheel and appellant’s cell phone

was found in the car.




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      The State also presented evidence that police found two fired cartridges

matching the type of pistol appellant dropped on the road. The State also performed

a gunshot residue test on appellant’s hand, which showed gunshot primer residue

particles on his hands. The presence of the particles is consistent with appellant

either firing a gun, being in immediate proximity of a weapon that was being

discharged or touching a surface that already had gunshot primer residue present on

it.

                      SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant challenges the sufficiency of the evidence to

support his criminal conviction, arguing that the evidence supported his claim of

self-defense.

Standard of Review

      In reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals determines whether, after viewing the evidence in the

light most favorable to the verdict, the trier of fact was rationally justified in finding

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). We measure the evidence “by the elements of the

offense as defined by the hypothetically correct jury charge for the case.” Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury


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charge is one that at least “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Johnson v. State, 364 S.W.3d

292, 294 (Tex. Crim. App. 1991).

        As the exclusive judge of the facts, the jury may believe or disbelieve all or

any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). We presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793. On appeal, we may not re-evaluate the weight and

credibility of the record evidence and thereby substitute our own judgment for that

of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In

reviewing the evidence, 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). Juries

are permitted to make reasonable inferences from circumstantial evidence presented

at trial. Id.

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

causes the death of an individual,” or if he “intends to cause serious bodily injury

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

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individual.” TEX. PENAL CODE ANN. § 19.02(b)(1), (b)(2); see Smith v. State, 355

S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

Analysis

      Here, the evidence was sufficient to support appellant’s conviction for

murder. First, three eyewitnesses saw a man matching appellant’s description exit a

Malibu vehicle, shoot Arvik, and escape in Arvik’s damaged red truck. One

eyewitness saw appellant backing away while shooting at Arvik and then getting

into Arvik’s truck. The same eyewitness also found Arvik lying in a ditch on his

stomach and “breathing really hard.” In addition, a deputy who gave chase to the

suspect fleeing in Arvik’s red truck identified appellant as the suspect he took into

custody. The deputy also saw appellant drop a black pistol out of the driver’s

window. A magazine fitting the pistol was found on the floorboard of the truck

appellant was driving when arrested. Lastly, the Malibu from which the suspect fled,

had appellant’s fingerprints, DNA, and cell phone in it.

      Other evidence supporting appellant’s guilt for Arvik’s murder include two

fired cartridges that matched the pistol appellant dropped on the road, and a gunshot

residue test performed on the appellant’s hand showing gunshot primer residue

particles on his hands. The presence of the particles would be consistent with

appellant either firing a gun, being in immediate proximity of a weapon that was




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being discharged or touching a surface that already had gunshot primer residue

present on it.

      Appellant raised, and the jury was charged, on the law of self-defense.

Appellant contends that he reasonably believed, as viewed from his standpoint alone,

that deadly force was immediately necessary to protect himself against the use or

attempted use of unlawful deadly force by Arvik. Self-defense may be raised against

a charge of murder as justification for a defendant’s actions and in support of an

acquittal. See, e.g., TEX. PENAL CODE ANN. §§ 9.31–.33; Alonzo v. State, 353 S.W.3d

778, 781–82 (Tex. Crim. App. 2011). “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 . . . .” TEX. PENAL CODE ANN. § 9.31(a). Similarly, a “person is

justified in using deadly force against another . . . when and to the degree the actor

reasonably believes the deadly force is immediately necessary . . . to protect the actor

against the other’s use or attempted use of unlawful deadly force.” Id. § 9.32(a)(2);

see Smith, 355 S.W.3d at 145.

      In a claim of self-defense, “a defendant bears the burden of production,” while

“the State . . . bears the burden of persuasion to disprove the raised defense.” Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The defendant’s burden of

production requires him to adduce some evidence that would support a rational jury

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finding in his favor on the defensive issue. See Krajcovic v. State, 393 S.W.3d 282,

286 (Tex. Crim. App. 2013). By contrast, the State’s “burden of persuasion is not

one that requires the production of evidence; it requires only that the State prove its

case beyond a reasonable doubt.” Zuliani, 97 S.W.3d at 594 (citing Saxton v. State,

804 S.W.2d 910, 913 (Tex. Crim. App. 1991)). A determination of guilt by the fact-

finder implies a finding against the defensive theory. Id. The issue of self-defense is

a fact issue to be determined by the jury, who is free to accept or reject the defensive

issue. Saxton, 804 S.W.2d at 913–14.

      Here, the jury had sufficient evidence to reject appellant’s claim of self-

defense. Three eyewitnesses saw appellant and Arvik “wrestling” or “tussling,” saw

Arvik step back and throw his hands up, and saw a gun in appellant’s hands. Within

seconds, the eyewitnesses heard gunshots. Two of the witnesses saw Arvik stumble

and fall into the ditch. All three witnesses saw appellant run to the red truck and

drive away. Appellant was not entitled to use a deadly force against an unarmed man

who had surrendered himself by throwing his hands up and backing away from the

conflict. See Graves v. State, 452 S.W.3d 907, 911 (Tex. App.—Texarkana 2014,

pet. ref’d) (finding no evidence of self-defense when initial aggressor was shot only

after he was in the process of backing away from defendant); Sanchez v. State, 418

S.W.3d 302, 310 (Tex. App.—Fort Worth 2013, pet. ref’d) (finding defendant “acted

out of anger, not protective instinct, in pursuing the unarmed [complainant]”).

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      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that “any rational trier of fact . . . would have found against appellant on

the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at 914; see

also TEX. PENAL CODE ANN. § 9.32(a). We hold that the evidence is legally sufficient

to support appellant’s conviction.

      Accordingly, we overrule issue one.

                                     PARTIES CHARGE

      In issue two, appellant contends the trial court erred by including, over his

objection, a jury charge that allowed the jury to convict him as a party to the offense.

Specifically, appellant claims that “the trial court erred in instructing the jury on the

law of parties because there is no evidence that he or [the driver of the white Crown

Victoria] ever communicated, assisted, or encouraged the other to commit a crime.”

Standard of Review and Applicable Law

      A review of alleged jury-charge error is a two-step process. See Ngo v. State,

175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726,

731–32 (Tex. Crim. App. 1994). First, we must determine whether error exists in the

charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). Second, if

there is error, the court must determine whether the error caused sufficient harm to

require reversal of the conviction. Id. Given that appellant objected to the inclusion

of the parties instruction, reversal is required only when the record, when viewed as


                                           9
a whole, illustrates that the defendant suffered some actual, rather than theoretical,

harm from the error. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

      Under the law of parties, “[a] person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible, or by both.” TEX. PENAL CODE ANN.

§ 7.01(a). A person is “criminally responsible” for an offense committed by the

conduct of another if, “acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Id. § 7.02(a)(2). “In general, an instruction on the law of parties

may be given to the jury whenever there is sufficient evidence to support a jury

verdict that the defendant is criminally responsible under the law of parties.” Ladd

v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999).

Analysis

      Because sufficient evidence supports appellant’s guilt as a principal actor, any

error in submitting the parties instruction was harmless. Black v. State, 723 S.W.2d

674, 675 (Tex. Crim. App. 1986) (“Where the evidence clearly supports a

defendant’s guilt as a principal actor, any error of the trial court in charging on the

law of the parties is harmless.”). “In other words,” if “there was no evidence tending

to show appellant’s guilt as a party, the jury almost certainly did not rely upon the

                                          10
parties instruction in arriving at its verdict, but rather” would have “based the verdict

on the evidence tending to show appellant’s guilt as a principal actor.” Ladd, 3

S.W.3d at 565. “[B]ecause there existed no evidence that anyone else killed the

decedent, the record cannot support the conclusion that appellant must have suffered

some actual, as opposed to theoretical, harm as required by Almanza and Arline.”

Miles v. State, No. 07-02-0108-CR, 2003 WL 1914398, at *2 (Tex. App.—Amarillo

Apr. 22, 2003, pet. ref’d) (mem. op., not designated for publication); see also

Saavedra v. State, No. 01-17-00295-CR, 2018 WL 3581081, at *6 (Tex. App.—

Houston [1st Dist.] July 26, 2018, pet. ref’d) (mem. op., not designated for

publication) (holding that, “because there is . . . sufficient evidence to support

appellant’s guilt as a principal actor, any error in submitting the parties instruction

would have been harmless”).

      Because the evidence showed that appellant shot the complainant, and there

was no evidence indicating that anyone shot the complainant, appellant was not

harmed by the submission of a parties charge.

      We overrule issue two.




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                                 CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

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




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