                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-15-00279-CR


                                 JUAN MORA, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 140th District Court
                                     Lubbock County, Texas
               Trial Court No. 2014-402,039, Honorable Jim Bob Darnell, Presiding

                                          July 20, 2017

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant Juan Mora appeals his conviction by jury of the offense of aggravated

assault with a deadly weapon1 and the resulting sentence of life imprisonment. He

presents two issues, one challenging an evidentiary ruling, the other challenging the

sufficiency of evidence to overcome his claim of self-defense. We will overrule both and

affirm the judgment of the trial court.




       1
           TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2016).
                                          Background


         Appellant was indicted for intentionally, knowingly, or recklessly causing bodily

injury to Elizabeth Garcia by stabbing her or striking her with a deadly weapon, a knife

sharpener.2


         In April 2014, Garcia was found on the bloody kitchen floor of her small Lubbock

apartment with multiple stab wounds to her body and the eight-inch shaft of a knife-

sharpening steel embedded in her head.                   She survived her wounds after a

neurosurgeon removed the metal rod. Two kitchen knives also were found lying on the

floor.


         Garcia’s injuries were such that police were unable to obtain a statement from

her.     Neighbors testified they heard fighting and screaming coming from Garcia’s

apartment and heard Garcia calling for help. When they pounded on the door, appellant

opened the door and walked out, telling the neighbors there was another person in the

apartment beating Garcia. The neighbors investigated, but found no adult but Garcia in

the apartment.3        Appellant ran from the apartment complex.         Six witnesses saw

appellant flee and run toward a nearby field. Police later tracked his cell phone to a

hotel, where they found him hiding. He was arrested there without incident.


         Appellant did not testify at his trial. His claim of self-defense was based primarily

on statements he made in telephone calls from jail and text messages he exchanged

with family members. Those statements were to the effect that he and Garcia were

         2
         The indictment also included an enhancement paragraph, setting forth
appellant’s previous felony conviction. Appellant pleaded “true” to the enhancement.
         3
             Her two small children also were present.

                                                2
using drugs in her apartment when an unidentified man appellant did not know came

into the apartment and participated in their drug use. His statements further indicated

Garcia and the man then began punching appellant and attacking him with knives in

what appellant thought was an attempt to rob him. Appellant said he remembered

fighting back from an attack he thought could kill him.         Appellant made similar

statements to a detective who took photographs of him after his arrest.


       There was testimony that a man was seen hurrying down the stairs near Garcia’s

apartment a short time before appellant descended the same stairs.


                                        Analysis


Sufficiency of the Evidence and Assertion of Self-Defense


       We first address appellant’s second issue wherein he contends the evidence was

insufficient to support his conviction because he “presented a very strong case that he

acted in self-defense.”


       A defendant has the initial burden of producing some evidence to support a claim

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

(citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. App. 1991) (en banc)).

Once evidence is produced, the burden shifts to the State to disprove the defense

beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This burden of persuasion

does not require the State to produce evidence to refute the self-defense claim, but

requires only that it prove its case beyond a reasonable doubt. Id. Thus, self-defense

is not an affirmative defense that the defendant must prove by a preponderance of the

evidence, but is instead a defense that the State must overcome in its burden of proving

                                           3
the elements of the offense beyond a reasonable doubt. See TEX. PENAL CODE ANN.

§ 2.03 (“defenses to prosecution”); Tex. Penal Code Ann. § 2.04 (“affirmative defenses

to prosecution”); TEX. PENAL CODE ANN. § 9.02 (“It is a defense to prosecution that the

conduct in question is justified under this chapter”); TEX. PENAL CODE ANN. § 9.31

(providing requisites for self-defense).


       Where, as here, there is a claim of self-defense rejected by the jury, we must

consider all the evidence in the light most favorable to the verdict and determine

whether, based on the evidence and reasonable inferences therefrom, a rational fact

finder could have found beyond a reasonable doubt the essential elements of the

offense and against the appellant with regard to self-defense. Darkins v. State, 430

S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (citing Saxton, 804

S.W.2d at 913). A jury’s guilty verdict is an implicit rejection of the appellant’s self-

defense claim. Saxton, 804 S.W.2d at 914. Here, appellant has not directly challenged

the sufficiency of the evidence to support the essential elements of the aggravated

assault with a deadly weapon. We will therefore review only whether a rational fact

finder could have found beyond a reasonable doubt against appellant on the self-

defense issue.


       A person is justified in using deadly force against another if he reasonably

believes that deadly force is necessary to protect against the other’s use or attempted

use of unlawful deadly force.         See TEX. PENAL CODE ANN. § 9.32(a).            The

reasonableness of an accused’s belief that force was required to defend himself is

viewed from the defendant’s standpoint at the time he acted. Juarez v. State, 886

S.W.2d 511, 514 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). The issue of self-

                                           4
defense is a fact issue to be determined by the jury, and a jury is free to accept or reject

the defensive issue, even if the evidence is uncontroverted. Wilkerson v. State, 881

S.W.2d 321, 324 (Tex. Crim. App. 1994); Adelman v. State, 828 S.W.2d 418, 421 (Tex.

Crim. App. 1992). As noted, although the State bears the burden of persuasion to

disprove the issue of self-defense, it is not required to affirmatively present evidence

that specifically refutes the defendant’s self-defense evidence. Saxton, 804 S.W.2d at

913-14; see Medina v. State, 411 S.W.3d 15, 21 (Tex. App.—Houston [14th Dist.] 2013,

no pet.) (“jury is free to reject the defensive evidence,” citing Saxton, 804 S.W.2d at

913-14); Denman v. State, 193 S.W.3d 129, 132-33 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d) (jury not required to accept defendant’s self-defense claim).


       We first take note that the only evidence placing another man in Garcia’s

apartment at the time she was stabbed came from appellant’s statements in his

recorded telephone calls made from jail and his text messages. The State argued to

the jury there was no other man, and the jury was free to reject appellant’s version as

self-serving. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (jury

is the sole judge of the weight of the evidence and may choose to believe all, some or

none of it). The witness who said she saw another man descend the stairs did not say

he came from Garcia’s apartment, nor did she express any other reason to connect him

with Garcia’s attack.


       On appeal, appellant also points to DNA evidence. Most of the DNA evidence

showed the blood samples collected contained Garcia’s blood or a mixture of Garcia’s

and appellant’s blood. One sample, however, indicated a mixture containing the DNA of

a third, unidentified person.

                                             5
       Appellant also had wounds. Police photographs taken after his arrest showed

cuts or scratches at various points on appellant’s body, primarily his limbs and torso.

An officer testified some of the wounds could be characterized as defensive. The officer

also said the wounds appeared to be of no substantial depth, and that none of them

were punctures. The officer’s latter remark is supported by the photographs. None of

the injuries appear serious enough to require bandaging. By comparison, photographs

depict Garcia’s stab wounds as deep and sutured.           There was evidence also that

appellant told different stories about his wounds. The detective who took appellant’s

photographs testified appellant said he was protecting himself from a knife attack by an

unknown man. In his text messages, he told Chandra Stewart, with whom he was

living, that he sustained cuts from Garcia while defending himself but told his mother the

same cuts were sustained while he was walking through a field. He told the woman he

was with at the hotel on his arrest that rips in his clothes were caused by a fight at work.


       There was testimony Garcia was screaming, “help, he’s trying to kill me” when

neighbors approached the door. The only statement regarding Garcia that appellant

made as he left the apartment was his assertion that someone else was in the

apartment attacking Garcia. Appellant’s mother, who was among those at the door

when he walked out, testified her son “said something to the effect that someone was

beating up the girl in the apartment.” She then was asked if “because of this did you

look around through the apartment?”         She responded, “I sure did.       We all did.”

Appellant’s mother reiterated, “I had that understanding when he was at the door, that




                                             6
someone was beating up the girl.” She agreed that “from looking around in there that

wasn’t true.” 4


       Appellant’s statement on leaving Garcia’s apartment that someone else was

beating her runs directly contrary to his later assertions that the other man, and Garcia,

attacked him, requiring him to defend himself against her. Appellant later sent a text

message to his mother stating he was going to Mexico after he had “just defended”

himself.    He also sent several to Stewart, indicating he believed he had defended

himself against Garcia. The messages admitted at trial also reflected statements to

Stewart that he had “just lost [i]t” and his life was “over” and statements to his mother

that he was going to commit suicide instead of going to prison. The State argues these

statements indicate appellant’s awareness of the consequences of his actions and

indicate he did not, in fact, act in self-defense when he assaulted Garcia. The jury also

saw text messages from appellant to Garcia of a sexually suggestive nature. In her

messages in response, Garcia indicated she did not reciprocate appellant’s sexual

feelings.


       Appellant also claimed the unknown man robbed him but the woman appellant

stayed with after the assault testified appellant had “a lot” of money with him when he

came to the hotel room.



       4
         Another neighbor, the first to reach Garcia’s apartment door, also testified
appellant said “somebody was beating her up” as he walked past after the apartment
door was opened. This neighbor continued, “And so . . . I believed him at the time, so I
ran inside to see who it was.” Finding only Garcia’s two children standing in the
apartment living room, the neighbor “ran to the bedroom, to the bathroom, and I
checked everywhere to see if anyone was hiding.” Like appellant’s mother, this
neighbor found no adult but Garcia in the apartment.

                                            7
       Appellant does not challenge on appeal the evidence he was the person who

inflicted life-threatening injury on Garcia. Instead, he argues the jury had an insufficient

basis on which to reject his contention he was justified in doing so because he

reasonably believed such deadly force was necessary to protect himself against

Garcia’s use or attempted use of unlawful deadly force.             We disagree with the

argument.    Even if a juror believed appellant received the injuries shown in his

photographs in an encounter in Garcia’s apartment, the disparity between his relatively

insignificant wounds and Garcia’s grievous injuries gives the juror good reason to doubt

that appellant reasonably believed such deadly force was necessary. In that regard, we

note the evidence appellant is a large man and Garcia a relatively small woman, 4’ 11”

in height. And the inconsistencies between appellant’s statement as he left the scene

and his later statements, coupled with the lack of substantive evidence that anyone

other than appellant and Garcia participated in their confrontation, gave the jury ample

reason to doubt appellant’s version of the events. As the fact-finder, and in its role of

weighing the evidence presented, the jury was free to disbelieve appellant’s assertion

he was justified in his assault on Garcia, and find him guilty instead.         Saxton, 804

S.W.2d at 913-14 (defensive evidence that is “merely consistent with the physical

evidence at the scene” will not render the State’s evidence insufficient because the

credibility determination for such evidence is solely within the fact finder’s province).


       We find appellant’s second issue without merit, and resolve it against him.




                                              8
Spousal Immunity


       In appellant’s first issue, he contends the trial court erred when it overruled his

objection to the testimony of his alleged common-law wife, Stewart, after she asserted

spousal immunity. The State called Stewart to testify.


       Texas Rule of Evidence 504(b) provides that the spouse of the accused in a

criminal case has a privilege not to be called to testify for the State. TEX. R. EVID.

504(b).   The privilege may be claimed by the accused’s spouse.            TEX. R. EVID.

504(b)(3). See also Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.—Amarillo 1999,

pet. ref’d). We review the trial court’s decision to admit Stewart’s testimony for an

abuse of discretion. Gonzalez v. State, No. 05-11-00052-CR, 2012 Tex. App. LEXIS

5215, at *9 (Tex. App.—Dallas June 28, 2012, no pet.) (mem. op., not designated for

publication).


       The Texas Family Code provides that an informal marriage may be proven by

evidence that the couple “agreed to be married and after the agreement they lived

together in this state as husband and wife and there represented to others that they

were married.” TEX. FAM. CODE ANN. § 2.401(a) (West 2006) (emphasis added). An

informal, or common law, marriage does not exist until the concurrence of all three

elements. Van Hooff v. Anderson, No. 07-14-00080-CV, 2016 Tex. App. LEXIS 466, *7

(Tex. App.—Amarillo January 14, 2016, no pet.) (mem. op.) (citations omitted).


       The court held a hearing outside the jury’s presence to address the informal

marriage issue. Stewart was the only witness who testified.




                                            9
      To establish the element of an agreement to be married, the proponent of an

informal marriage “must show the parties intended to have a present, immediate, and

permanent marital relationship and that they did in fact agree to be husband and wife.”

Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied) (quoting Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.]

2001, pet. denied)). An agreement to be informally married may be established by

direct or circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).


      No documentary evidence of an agreement was presented. Cf. Van Hooff, 2016

Tex. App. LEXIS 466 at *10. The testimony of one of the parties to the marriage that

the couple agreed to be married constitutes some direct evidence of that element. Id. at

*11. Stewart’s testimony, however, is weak on the point. During her testimony, she

was first asked about an agreement to be married during the State’s cross

examination.5 The prosecutor asked, “when did you two expressly agree that you would


      5
          Appellant’s counsel twice led Stewart through conclusory recitations of
elements of an informal marriage. Her testimony on direct examination was the
following:

      Q. What is your relationship with Mr. Juan Mora?
      A. My husband.
      Q. Okay. Are y’all common-law or ceremonially married?
      A. Common-law.
      Q. How long have y’all been common-law married?
      A. Gosh, it was back in 2007.
      Q. Okay. And you have held yourself out and told others that you are
      husband and wife?
      A. Yes.
      Q. And do people generally consider y’all as husband and wife?
      A. Yes, they do.
      Q. And y’all have children together?
      A. Yes.
      Q. And you’ve represented to others and Mr. Mora has represented to
      others that y’all are – y’all are married?

                                          10
be man and wife; that you would be married?” Stewart responded by referring to an

occasion some years before when appellant was in jail and she made effort to arrange

for them to be married, in what appellant’s counsel later referred to as a “proxy
             6
marriage.”       Asked again later by the prosecutor “what year [she] and [appellant] had

an agreement amongst yourselves to hold yourselves out as man and wife,” Stewart

again referred to the occasion “the first time he went down.” It is clear the effort to

arrange a proxy marriage was not completed. “Common law marriage requires that

there be some agreement presently to be married, not to marry sometime in the future.”

Colburn v. State, 966 S.W.2d 511, 515 (Tex. Crim. App. 1998) (citation omitted). The

trial court could have seen Stewart’s testimony regarding an agreement merely to

indicate she and appellant had an agreement to be formally married, an agreement that

had yet to be carried out.7 The testimony thus reasonably can be seen as presenting



      A. Yes.
      Q. Okay. And we visited quite a bit about the spousal privilege as far as
      testimony goes; is that correct?
      A. Yes.
      Q. And is it your desire to assert the spousal privilege and not be forced to
      testify in this trial?
      A. It is.
      Q. Okay.

Counsel later led Stewart through similar questioning. The questions addressed their
cohabitation and their “holding out to others,” but none of the questions inquired about
an agreement with appellant.
      6
         See In re K.R.P., 80 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied) (using same phrase).
      7
         An intention to be married ceremonially in the future is not necessarily
inconsistent with an agreement presently to be married informally. See Carty v. Thaler,
583 F.3d 244, 261 (5th Cir. 2009), cert. denied, 559 U.S. 1106, 130 S. Ct. 2402, 176 L.
Ed. 2d 923 (2010) (applying Texas law). But neither does such an intention prove the
existence of a present agreement.


                                             11
no direct evidence they had in fact agreed to be husband and wife. See Small, 352

S.W.3d at 283.


      Evidence of cohabitation and “holding out” may, in some cases, constitute some

evidence of an agreement to be married.         Russell, 865 S.W.2d at 932-33 (citation

omitted). Our courts have recognized, however, that “it is difficult to infer an agreement

to be married from cohabitation in modern society.” Assoun v. Gustafson, 493 S.W.3d

156, 160 (Tex. App.—Dallas May 3, 2016, pet. denied) (citing Russell, 865 S.W.2d at

932). For that reason, the evidence of holding out must be particularly convincing to be

probative of an agreement to be married. Id. (citing Russell, 865 S.W.2d at 932).


      On questioning by the court, Stewart said she had told “co-workers, my boss,

family, friends” she and appellant were married. She also testified she and appellant

have two children together. During argument, appellant’s counsel pointed out to the

court that some of the State’s witnesses had in their testimony referred to Stewart as

appellant’s wife. On cross-examination, Stewart acknowledged she and appellant never

“formally married” and she had expressed to others, including appellant’s mother, that

she was “done” with appellant. She also told the court she had at times used the last

name “Mora” but “it’s not an every day thing I go by Mora.” She also stated that she

filed “head of household” income tax returns, that she had a joint banking account with

appellant “at one time,” and that the two had once applied for a payday loan as husband

and wife.


      We find the testimony provides some evidence Stewart and appellant

represented to others that they were married. See Van Hooff, 2016 Tex. App. LEXIS



                                           12
466 at *13-*16 (evaluating evidence of holding out element). It is not, however, the

“particularly convincing” evidence probative of an agreement to be married.             See

Assoun, 493 S.W.3d at 160. And certainly it is not so convincing as to demonstrate the

trial court abused its discretion by overruling Stewart’s claim to a spousal privilege not to

testify against appellant. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.

2007) (trial court abuses its discretion in ruling on admission of evidence when decision

lies outside the zone of reasonable disagreement); see also Russell, 865 S.W.2d at 932

(contrast drawn between assertions of marriage made with consequences and those

“made in a self-serving context”) (citation omitted).


         We overrule appellant’s first issue.


                                          Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                         James T. Campbell
                                                            Justice


Pirtle, J., concurs in the result.


Do not publish.




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