Evidence was factually sufficient to negate
respondent's theory of self-defense.[In the Matter of M.A.J.](10-2-3)
On February 26, 2010, the Austin Court of Appeals
held that the juvenile court could have reasonably inferred from the evidence
that respondent was the aggressor in assault, negating respondent's position
that he was justified in using force against victim.
10-2-3. In the Matter of M.A.J., MEMORANDUM,
No. 03-09-00492-CV, 2010 WL 668890 (Tex.App.-Austin, 2/26/10).
Facts: 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. [FN3] 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.
FN3. 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.
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.
Held: Affirmed
Memorandum Opinion: 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.
Conclusion: 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.