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                                  MEMORANDUM OPINION

                                         No. 04-08-00836-CR

                                      Ian William VANBUREN,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-2746
                            Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice, concurring in the judgment
                  Marialyn Barnard, Justice

Delivered and Filed: February 3, 2010

AFFIRMED

           A jury found Ian William Vanburen guilty of murder and, after making an affirmative finding

that Vanburen acted under the immediate influence of sudden passion arising from an adequate

cause, assessed punishment at thirteen years imprisonment and a $10,000.00 fine. In two issues,

Vanburen contends the evidence was legally and factually insufficient to support the jury’s implicit

rejection of his self-defense claim. We affirm the trial court’s judgment.
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                                                  BACKGROUND

          During the early morning hours of October 31, 2006, Vanburen shot and killed Jeremy

Lathem. On the night of the murder, Vanburen and Andrew Garza had been drinking at a sports bar,

and left at approximately 2:00 a.m. After leaving the sports bar, Vanburen called Janice Gonzales,

whom he had met a few weeks earlier. He asked her if he could join her at Lathem’s house, where

Lathem’s birthday party was occurring, and she agreed. Although Gonzales and Lathem were close

friends, Vanburen had never met Lathem. Vanburen and Garza arrived at the party at approximately

3:30 a.m., but Garza decided to stay in the truck because he felt ill. Vanburen went inside. Inside

the house, Lathem, Gonzales, and two other men, Joe Isaac and David Fernandez, were playing

poker and drinking.1 Vanburen sat at the table with the poker players, but did not play. At some

point, Garza came inside. He saw the group playing cards, and saw Vanburen seated at the poker

table. After a while, an argument erupted between Gonzales and Vanburen, ending with Vanburen

pouring a cup of beer on Gonzales. Gonzales and Vanburen went outside and continued arguing.

          At this point, the testimony of the eyewitnesses begins to conflict. However, the undisputed

evidence shows that after Vanburen and Garza got into Vanburen’s truck, Lathem walked up to the

truck and hit the taillight with a small bat. Vanburen testified he looked back and saw “somebody

with a weapon that just smashed my car.” According to Vanburen, Lathem was approaching the

driver’s side door with the bat. Vanburen felt like he was being attacked, and when Lathem was in

front of his window, he reached for his gun and shot in Lathem’s direction three times. Vanburen




          1
           … Although there was testimony that Lathem was drinking, autopsy results showed no drugs or alcohol in his
system.

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then drove off and was pulled over by law enforcement officers as he was taking Garza home. The

officers immediately took Vanburen in for questioning regarding Lathem’s murder.

         Vanburen was charged by indictment with the offense of murder. At trial, the jury heard

testimony from five eyewitnesses to the shooting, including Vanburen, who claimed he shot Lathem

in self-defense. The jury found Vanburen guilty of murder, implicitly rejecting his self-defense

claim.

                                             DISCUSSION

         In two points of error, Vanburen contends the evidence is legally and factually insufficient

to support the jury’s implicit rejection of his self-defense claim. According to Vanburen, his

testimony that Lathem was a huge man, who bashed his taillight with a bat and verbally threatened

him, supports his claim of self-defense because a reasonable person would have been afraid for his

life. As a result, no rational trier of fact could have found he did not act in self-defense, and the

State’s evidence is too weak and goes against the great weight and preponderance of the evidence

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

         Texas law categorizes self-defense as a defense, not an affirmative defense. Zuliani v. State,

97 S.W.3d 589, 594 (Tex. Crim. App. 2003). To support a defense like self-defense, a defendant

bears only a burden of production, which requires him to produce some evidence in support of his

claim. Id.; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant

produces such evidence, the burden shifts to the State, and the State bears the burden of persuasion

to disprove the raised defense. Id. Unlike the defendant’s burden of production, the State’s burden

of persuasion requires it to prove its case beyond a reasonable doubt. Id. When a fact finder




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determines that a defendant is guilty, there is an implicit finding rejecting any defensive theory raised

by the defendant. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

         When a defendant challenges the legal sufficiency of the evidence supporting a jury’s implicit

rejection of a defendant’s claim of self-defense, “we look not to whether the State presented evidence

which refuted appellant’s self-defense testimony, but rather we determine whether after viewing all

the evidence in the light most favorable to the prosecution, any rational trier of fact would have

found the essential elements of murder beyond a reasonable doubt and also would have found against

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

a defendant challenges the factual sufficiency of the evidence supporting a jury’s implicit rejection

of a defendant’s claim of self-defense, we review all the evidence in a neutral light and ask “whether

the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt,

although adequate if taken alone, is against the great weight and preponderance of the evidence.”

Zuliani, 97 S.W.3d at 595 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).

         A person is legally justified in using force against another person when and to the degree he

reasonably believes the force is immediately necessary to protect himself against the other’s use or

attempted use of unlawful force. TEX . PENAL CODE ANN . § 9.31(a) (Vernon Supp. 2009).2 A person

is legally justified in using deadly force against another person when and to the degree: (1) he would

have been justified in using force as set out in section 9.31 of the Texas Penal Code, (2) a reasonable

person in his position would not have retreated, and (3) he reasonably believed the use of deadly


         2
          … W e recognize section 9.31 has been amended since the commission of the offense in this case. See Act of
April 28, 1995, 74th Leg., R.S. ch. 190, 1995 Tex. Gen. Laws 1919, 1919, amended by Act of March 20, 2007, 80th
Leg., R.S. ch. 1, § 6, 2007 Tex. Gen Laws 1, 2 (current version at T EX . P EN AL C O D E A N N . § 9.31 (Vernon Supp. 2009)).
However, the amendment did not change the portion of 9.31(a) cited in this opinion. See id. Accordingly, we cite to
the current version of the statute with regard to this portion of section 9.31(a).

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force was immediately necessary to protect himself against the other person’s use or attempted use

of unlawful deadly force. Act of May 29, 1993, 73rd Leg., R.S. ch 900, §1.01, 1993 Tex. Gen. Laws

3586, 3598, amended by, Act of March 20, 2007, 80th Leg., R.S. ch. 1, § 3, 2007 Tex. Gen. Laws

1, 2 (current version at TEX . PENAL CODE ANN . § 9.32 (Vernon Supp. 2009)).3 “‘Deadly force’ is

force that is intended or known by the actor to cause, or in the manner of its use or intended use is

capable of causing, death or serious bodily injury.” TEX . PENAL CODE ANN . § 9.01(3) (Vernon Supp.

2009).

         In this case, the jury was instructed to acquit Vanburen if the jury found, or had a reasonable

doubt, that Vanburen was justified in using deadly force. The language of the jury instructions

tracked the language from the self defense statute in effect at the time of the offense, and the

language regarding the use of deadly force to protect oneself.

         The jury heard testimony from five eyewitnesses to the shooting. Garza testified that after

Vanburen threw a cup of beer on Gonzales, he heard Gonzales tell Lathem “to fuck ‘em up.” Garza

and Vanburen were already outside when Garza heard Gonzales make this statement. Garza testified

that as he and Vanburen walked toward Vanburen’s truck, Gonzales and Vanburen continued yelling

profanities at one another. Garza testified that when he got into the truck, he saw Lathem come

outside with a bat. Garza then turned around and saw Lathem break the truck’s back windshield,

         3
           … Section 9.32 was amended effective September 1, 2007. Act of March 20, 2007, 80th Leg., R.S. ch. 1, §
6, 2007 Tex. Gen Laws 1, 2 (current version at T E X . P EN A L C O D E A N N . § 9.32 (Vernon Supp. 2009)). For offenses
committed after September 1, 2007, the justification to support self-defense no longer requires a finding that a reasonable
person would have retreated. See id. § 3. However, the offense in this case was committed on October 31, 2006, before
the effective date of the current version of section 9.32. W hen the statute was amended, it specifically provided that the
amended version would apply only to offenses committed on or after the statues effective date; the former law would
remain in effect and apply to offenses committed before the effective date of the amended statute. Id. § 5. Accordingly,
we apply and cite to the version of section 9.32 that was in effect at the time of the offense, and that version of the statute
requires a finding that a reasonable person would have retreated. See Act of M ay 29, 1993, 73rd Leg., R.S. ch. 900,
§1.01, 1993 Tex. Gen. Laws 3586, 3598, amended by, Act of March 20, 2007, 80th Leg., R.S. ch. 1, § 3, 2007 Tex. Gen
Laws 1, 2 (current version at T EX . P EN AL C O D E A N N . § 9.32 (Vernon Supp. 2009)).

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though he later admitted it could have been the taillight. Garza testified Vanburen ducked down as

Lathem approached the front of the truck with the bat raised. According to Garza, Vanburen

retrieved a gun from beneath the driver’s seat, put the magazine into the gun, and shot it three times.

Garza testified he did not see Vanburen shoot Lathem, but believed Vanburen shot the gun into the

air to scare Lathem. Garza later testified he told police officers Lathem was not facing the truck

when Vanburen shot at him. Garza stated Vanburen put the truck into reverse and hit another

vehicle; however, Garza admitted he told police Vanburen put the truck in reverse to try and hit

Lathem before Vanburen shot him.

       Gonzales testified that when Vanburen arrived at Lathem’s house, he appeared drunk. She

stated Vanburen became agitated, and after becoming upset with her, poured a cup of beer over her

head. Gonzales testified she became upset and began yelling at Vanburen, telling him to leave.

Lathem and Vanburen began exchanging words, and Lathem told Vanburen to leave. She walked

outside and Vanburen followed her, and they continued cursing at one another in Lathem’s driveway.

According to Gonzales, she began walking toward the neighbor’s yard and both Vanburen and

Lathem followed her. Lathem asked her if she needed any help, and she said “yes.” Gonzales then

testified she called Vanburen crazy, and Vanburen replied, “We’ll see who’s crazier.” Gonzales said

that when Vanburen got into his truck, she went behind it to record his license plate information.

At that point, Vanburen shifted the truck into reverse and revved the engine. Isaac, who was outside

by this time, pulled Gonzalez away from the truck, and she saw Lathem walking toward the back of

the truck with a bat. Lathem smashed the taillight of Vanburen’s truck. Gonzales testified she

turned back toward the house and heard shouting, a loud noise that sounded like metal on metal, and

the truck’s tires squealing. She was pushed to the ground, and when she looked up, she saw Lathem


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stumbling toward the neighbor’s porch, where he collapsed. Gonzales testified she never heard any

gun shots.

       Isaac testified that after the poker game ended, he and Fernandez went upstairs to bed.

Minutes later, someone called for Fernandez, and Fernandez ran downstairs. Isaac testified

Fernandez called him, and he too went downstairs. Isaac and Fernandez were standing in the front

doorway watching Gonzales and Vanburen yelling at one another. Isaac testified he went to get

Gonzales when he saw Vanburen and Garza get into Vanburen’s truck. He also recalled the sound

of the engine starting because it was loud, and while the truck was running, he noticed the rear lights

were on and brighter than normal. Isaac testified he pulled Gonzales away from the curb, and he saw

Lathem walking toward Vanburen’s truck with “a small souvenir bat.” Isaac testified he told Lathem

“not to do it” and “it wasn’t worth it,” but Lathem hit the taillight on Vanburen’s truck. After that,

Lathem backed up toward the neighbor’s driveway. Isaac testified Lathem was ten to twelve feet

away from the driver’s side back door and was holding the bat at waist level when Vanburen shot

him. This testimony is supported by the medical examiner’s testimony that because no soot or

gunpowder was on Lathem’s clothes, Lathem was not shot at close range. Isaac testified that after

he heard four shots, he panicked and ran.

       Similarly, Fernandez testified that after he called Isaac downstairs, he and Isaac stood in the

front doorway and saw Gonzales and Vanburen arguing. Fernandez testified Isaac went to get

Gonzales, and around the same time, Lathem came out of the house, carrying “a small wooden bat.”

Fernandez testified Lathem walked toward Vanburen’s truck, but Fernandez focused on Isaac and

Gonzales, who were walking toward the curb. Fernandez then heard something breaking and saw

the taillight of Vanburen’s truck was broken. He then turned toward Gonzales and heard three


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gunshots, tires squealing, and saw Vanburen’s truck back up into a parked vehicle. Fernandez

testified he did not see Vanburen shoot Lathem.

       Vanburen agreed he got into an argument with Gonzales and poured a cup of beer on her

head. He said Gonzales then went outside, and he decided to leave. Vanburen testified he heard

someone say, “fuck ‘em up.” Although he believed the statement came from Gonzales, Vanburen

testified he was unsure to whom she made the statement, but he was scared and wanted to leave.

Vanburen testified he and Garza continued moving toward his truck, and when he was in the truck,

he heard a banging sound on the back of his truck. Vanburen testified that as he was seated in the

truck, he looked back and saw “somebody with a weapon that just smashed my car.” At that point,

he reached for the gun underneath his seat, pulled the slide back, loaded a round into the chamber

three times, and shot in Lathem’s direction. Contrary to the testimony of several other witnesses,

Vanburen testified he started the truck after he fired the gun. He claimed he mistakenly put his truck

into reverse and backed into another vehicle. When he shifted into drive and drove away, he got lost

in the neighborhood and could not recall whether he drove by Lathem’s house again.

       Chief Medical Examiner for Bexar County, Dr. Randy Frost, testified Lathem was shot three

times, two of the gunshots were on his left arm and the third gunshot was to his chest. The wounds

to Lathem’s arm were not fatal. However, the bullet that caused the wound to his chest pierced the

left side of Lathem’s chest, passed through a rib, and went through his left lung and heart. As a

result of the chest wound, Lathem died. Frost also testified no soot or gunpowder was on Lathem’s

clothing or body, indicating he was not shot at close range. A toxicology test showed no drugs or

alcohol in Lathem’s system.




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       Although Vanburen argues no rational juror could have found he did not act in self-defense,

we disagree. The evidence shows conflicting accounts of the events. Although Vanburen testified

he fired the gun three times before starting the truck’s ignition, two eyewitnesses, Isaac and

Gonzales, testified they were certain Vanburen started the truck before he shot Lathem. Gonzales

testified Vanburen shifted gears and revved the truck’s engine before Lathem approached the truck

with the bat. Isaac testified he remembered Vanburen started the truck because it was loud and the

lights were brighter than normal. Additionally, Lathem’s position with regard to the truck was in

dispute. Isaac testified he thought Lathem was walking away from the truck toward the neighbor’s

yard when the shots were fired. Garza, on the other hand, testified Lathem was approaching the front

of the truck with the bat raised at the time Vanburen fired. Garza also testified it would have taken

Vanburen less time to start the truck and drive away than the time it took for Vanburen to prepare

to fire his gun. Garza added he would have handled the situation differently. Accordingly, there is

evidence from which the jury could conclude a reasonable person would have retreated and deadly

force was not immediately necessary to protect himself because he could have simply driven away.

See TEX . PENAL CODE ANN . § 9.31(a); Act of May 29, 1993, 73rd Leg., R.S. ch 900, §1.01, 1993

Tex. Gen. Laws 3586, 3598, amended by, Act of March 20, 2007, 80th Leg., R.S. ch. 1, § 3, 2007

Tex. Gen. Laws 1, 2 (current version at TEX . PENAL CODE ANN . § 9.32 (Vernon Supp. 2009)).

       Vanburen contends he did not have time to retreat by driving away, and Lathem was

approaching him with a deadly weapon; however, his testimony is conflicting. On the one hand,

Vanburen testified he did not have time to drive away, but on the other hand, he described the time

it took him to locate his handgun underneath his seat, check the magazine, rack the slide, load a

round into the chamber, and hold the handgun out the window to fire three shots in Lathem’s


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direction. Additionally, the evidence shows that although Vanburen told law enforcement officers

Lathem had a bat, during trial, Vanburen testified he did not see the weapon or know what the

weapon was, but it “could have been anything the size of a bat.” Vanburen went on to testify he did

not know what Lathem had, but he was sure Lathem had “an object in his hand.” When asked to

explain where Lathem was in proximity to himself, Vanburen at one point testified Lathem was

approaching the driver’s door; however, Vanburen also testified he did not exactly see where Lathem

was when he fired the weapon. There was evidence Lathem was ten to twelve feet away from

Vanburen when he fired. He went on to testify he fired the gun in Lathem’s direction.

       After viewing all the evidence in the light most favorable to the prosecution, we conclude

any rational trier of fact could have found the essential elements of murder beyond a reasonable

doubt and the same rational trier of fact could have found against Vanburen on the self-defense issue

beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Furthermore, after giving due deference

to the jury’s assessment of the witnesses’ credibility and resolution of evidentiary conflicts, we

cannot conclude the State’s evidence taken alone is too weak to support the finding or that the proof

of guilt, although adequate if taken alone, is against the great weight and preponderance of the

evidence. See Zuliani, 97 S.W.3d at 595. Accordingly, we conclude the evidence is legally and

factually sufficient to support Vanburen’s conviction, and we overrule his two points of error.

                                           CONCLUSION

       Because we conclude the evidence is legally and factually sufficient, we affirm the trial

court’s judgment.

                                                       Marialyn Barnard, Justice


DO NOT PUBLISH

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