
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00492-CV


In the Matter of M. A. J.




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-30,114, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		The district court, sitting as a juvenile court, adjudicated M.A.J. delinquent
after finding that he had committed the offense of assault.  See Tex. Penal Code Ann. § 22.01(a)(1)
(West Supp. 2009).  The juvenile court then transferred the case to Williamson County, where
M.A.J. resided, for disposition. (1)  M.A.J. appeals from the order adjudging him delinquent. (2)  In a
single point of error, M.A.J. asserts that the evidence is factually insufficient to show that he did not
act in self-defense.  We will affirm the order. 

BACKGROUND
		The juvenile court heard evidence that, on February 8, 2009, M.A.J., a 15-year-old
boy, punched S.K., a 16-year-old boy, in the mouth.  The issue at trial was whether S.K. provoked
M.A.J. and, if so, whether such provocation justified M.A.J.'s use of force.
		S.K. testified that, on the day of the incident, he was visiting some of his friends,
including his girlfriend, L.L., at an apartment complex when they walked past M.A.J., who was
sitting in the courtyard of the complex with his friend, A.V.C.  As they were walking past M.A.J.,
A.V.C. apparently told M.A.J. that S.K. said "F**k Blue." (3)  S.K. testified that he did not say that.
In fact, S.K. claimed that he did not remember saying anything to M.A.J.  According to S.K., after
A.V.C. told M.A.J. what S.K. had allegedly said, M.A.J. stood up, walked toward S.K., asked him
if he had made the statement, and, before S.K. could respond, hit him in the mouth, causing S.K. to
fall to the ground. 
		L.L. testified similarly about the incident, although she recalled that, before M.A.J.
hit S.K., S.K. asked M.A.J., "Are you really going to believe what [A.V.C.] says?"  After that, L.L.
recalled, "[M.A.J.] just started hitting him."  When asked "who threw the first punch," L.L. testified,
"[M.A.J.]"  L.L. denied that S.K. did anything to provoke M.A.J.  L.L. also testified that, after
M.A.J. hit S.K., A.V.C. admitted to M.A.J. that "she was just kidding" about what S.K. had said. 
M.A.J. then helped S.K. to his feet.  L.L. took S.K. to her house, where L.L.'s mother called the
police.  According to one of the officers who responded to the call, S.K. "had a large laceration to
his lip.  It was actually filleted open.  He was bleeding profusely."  S.K. was transported to the
hospital, where he was treated for his injuries.
		A.V.C. also testified.  She admitted that she had not heard S.K. say "F**k Blue" prior
to telling M.A.J. that she had heard him say that, although she claimed that S.K. did say those
words "like a second later."  According to A.V.C., she "always plays around with [M.A.J.] like that
and he knows I don't mean it."  When asked "who threw the first punch" during the altercation,
A.V.C. testified, "[M.A.J.]"  However, A.V.C. added that, before M.A.J. hit S.K., S.K. appeared to
be in a fighting stance with his arms raised and his chest puffed up, "[as] if he was going to hit
[M.A.J.] first."
		Officer Christi Kathleen Bergh of the Austin Police Department investigated the
incident.  Bergh testified that when she found M.A.J. at the apartment complex, he "was very
uncooperative.  He was very abrasive and it took us a while to try to talk him down and to get him
to calm down.  When we tried to get information, he finally just said that [S.K.] made him upset
due to some comments he had made and that he broke his hand on his face."  M.A.J. also told Bergh
"that he had anger management problems and that [S.K.] made him upset and he couldn't
control himself."
		The only witness to testify on behalf of M.A.J. was Sharon Simmons, an adult
resident at the apartment complex who claimed to have witnessed the altercation.  According to
Simmons, S.K. said "F**k Blue" as he was walking past M.A.J. and began "bucking up" to him,
which Simmons described as having his hands in a fist and his chest puffed out, as if he was "coming
towards a person."  Then, Simmons recalled, M.A.J. asked S.K., "What did you say?"  S.K.
responded, "You heard me."  After that, Simmons testified, M.A.J. "got up and hit him."  On cross-examination, when asked "who threw the first punch," Simmons admitted, "[M.A.J.]"
		After hearing the evidence and listening to argument from both sides, the
juvenile court recited its findings orally.  Finding the testimony of the defense witness, Simmons,
"completely unbelievable" and having "no reason to doubt the State's witnesses," the juvenile court
found that the State had proven beyond a reasonable doubt that M.A.J. had assaulted S.K.  The
juvenile court then adjudicated M.A.J. delinquent.  This appeal followed.

STANDARD OF REVIEW
		Adjudications of delinquency in juvenile cases are based on the criminal standard of
proof.  See Tex. Fam. Code Ann. § 54.03(f) (West Supp. 2009).  Therefore, we review adjudications
of delinquency in juvenile cases by applying the same standards applicable to sufficiency of the
evidence challenges in criminal cases.  In re M.C.L., 110 S.W.3d 591, 594 (Tex. App.--Austin 2003,
no pet.).
		In a factual-sufficiency review, we view the evidence in a neutral light and ask
whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt.  See
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We then determine (1) whether the
evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or
(2) whether the verdict is against the great weight and preponderance of the conflicting evidence. 
Id. at 414-15.  We will not reverse a verdict for factual insufficiency unless we can say, with some
objective basis in the record, that the great weight and preponderance of the evidence contradicts the
fact-finder's verdict.  Id. at 417.  Nor will we intrude on the fact-finder's role as the sole judge of
the weight and credibility of witness testimony.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.
App. 2002).  The trial judge is the fact-finder in bench trials, and we give the same deference to
a trial judge's credibility and weight determinations as we would a jury's.  See Joseph v. State,
897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

ANALYSIS
		In his sole point of error, M.A.J. asserts that the evidence is factually insufficient to
prove that he did not act in self-defense.  We disagree.
		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) (West Supp. 2009).  "Reasonable
belief" means a belief that would be held by an ordinary and prudent man in the same circumstances
as the actor.  Id. § 1.07(a)(42) (West Supp. 2009).  The 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); Lee v. State, 259 S.W.3d 785, 791 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd).  Once
the defendant produces such evidence, the State has the burden of persuasion in disproving
self-defense.  Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991).  The State's burden
of persuasion does not require it to produce evidence refuting the self-defense claim.  Id. at 913. 
Rather, the burden requires the State to prove its case beyond a reasonable doubt.  Id. 
		To support his self-defense claim, M.A.J. points to the testimony of A.V.C. and
Simmons, both of whom claimed that they heard S.K. actually say the words, "F**k Blue" and
that S.K. was in a fighting stance and "bucked up" to M.A.J. prior to M.A.J. hitting him.  Viewing
this evidence in a neutral light, we cannot say that the juvenile court's finding that the State proved
its case beyond a reasonable doubt was "clearly wrong and manifestly unjust" or "against the great
weight and preponderance of the conflicting evidence."  See Watson, 204 S.W.3d at 414-15.  The
use of force against another is not justified in response to verbal provocation alone.  Tex. Penal Code
Ann. § 9.31(b)(1).  Therefore, even if S.K. had said those words to M.A.J. (which the juvenile court
was free to disbelieve), this alone would not justify M.A.J.'s use of force against S.K.  See Trammell
v. State, 287 S.W.3d 336, 342 (Tex. App.--Fort Worth 2009, no pet.).  As for the testimony about
S.K.'s aggressive behavior, the juvenile court could have simply found this testimony not credible,
and such a finding would not have been against the great weight and preponderance of the evidence. 
S.K. denied saying or doing anything to provoke M.A.J., and L.L. testified similarly.  We must defer
to the fact finder's decision regarding what weight to give contradictory testimonial evidence.  See
Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008).  Moreover, Officer Bergh testified
that M.A.J. told her that "he had anger management problems and that [S.K.] made him upset and
he couldn't control himself."  Also, when asked "who threw the first punch," L.L., A.V.C., and
Simmons each testified that it was M.A.J.  Thus, the juvenile court could have reasonably inferred
from this and other evidence that it was M.A.J. and not S.K. who was the aggressor.
		We conclude that the evidence is factually sufficient to disprove M.A.J.'s theory that
he acted in self-defense.  We overrule M.A.J.'s sole point of error.

CONCLUSION
		We affirm the order of the juvenile court.

						__________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed
Filed:   February 26, 2010
1.   The order of disposition is not in the record before us.
2.   See Tex. Fam. Code Ann. § 56.01(c)(1)(A) (West Supp. 2009) (authorizing appeal from
order adjudging juvenile delinquent).
3.   "Blue" is a reference to the gang known as "Crips."  According to the officer who arrested
M.A.J., M.A.J. is a "self-proclaimed" member of that gang.
