The 5th Court of Appeals decided UNDRE JONES, Appellant v. THE STATE OF TEXAS, Appellee, on July 25, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Aggravated Assault.

The case was on appeal from the 292nd Judicial District Court in Dallas County, Texas, as Trial Court Cause No. F-1452314-V. From the appellate court:

Following a plea of not guilty, appellant Undre Jones was convicted by a jury of aggravated assault with a deadly weapon. Punishment was assessed by the jury at seven years’ imprisonment, which was suspended by the trial court for seven years. In two issues on appeal, appellant contends (1) the evidence is insufficient to support his conviction because no rational fact finder could have found against him on his claim of self-defense and (2) the trial court abused its discretion by denying his motion for mistrial based on the State’s improper closing argument. Additionally, in a “cross-point,” the State requests that the trial court’s written judgment be modified to accurately reflect what occurred in the trial court.

We decide appellant’s two issues against him. Further, we modify the trial court’s judgment as described below. As modified, the trial court’s judgment is affirmed.

…

In his first issue, appellant contends the evidence is insufficient to support his conviction for aggravated assault because no rational fact finder could have found against him beyond a reasonable doubt on his claim of self-defense. According to appellant, (1) “[Harris’s] physical aggression towards [appellant] coupled with her past history of bullying [appellant] fostered [appellant’s] justifiable need to use self-defense to protect himself”; (2) “[appellant] was justified in using deadly force to defend himself against [Harris’s] physical attack of him”; and (3) “[t]he testimony and evidence presented at trial did not undermine [appellant’s] claim of self-defense.”

The State responds that the jury was entitled to reject appellant’s self-defense claim as lacking in credibility and find that appellant’s use of deadly force against Harris was not justified. The State asserts (1) “[t]he evidence, viewed in the light most favorable to the verdict, shows appellant cut [Harris] with a deadly weapon—a box cutter—in response to [Harris’s] use of a walking Cane against him”; (2) “[t]he jury, who had examined a cane almost identical to the one used in the attack, could have reasonably determined that the complainant did not use deadly force against appellant and that appellant’s belief about the need for deadly force was unreasonable”; and (3) “[m]oreover, appellant’s testimony on the issue of self-defense was inconsistent.”

In support of his argument, appellant asserts the evidence shows (1) Peete and appellant “both established that Harris was the initial aggressor when she punched [appellant] in the face upon exiting her vehicle”; (2) “Harris then proceeded to use [appellant’s] cane to beat him all over his body, including his head”; (3) “[s]he hit him so hard that he suffered a concussion”; (4) appellant “did not pull out the box cutter until after Harris started hitting him with his cane”; (5) “Harris, Harvey, and Vinzant had a history of antagonizing [appellant] with numerous derogatory slurs and hateful bullying”; (6) “Vinzant’s involvement in the physical altercation exacerbated the situation because although he was holding Harris’s shoulders he allowed her to continue hitting [appellant] with the cane”; and (7) Davis and Kirven testified that “hitting a person’s head with a cane can cause bodily injury or death.” Therefore, according to appellant, (1) “[i]t was reasonable for [appellant] to feel that these people who had bullied him on previous occasions were joining forces to physically attack him”; and (2) “[b]ased on her demonstrated physical aggression, [appellant’s] belief that Harris would use deadly force against him was not unreasonable.”
However, the record also shows (1) Harris, Peete, and Vinzant testified that the initial physical contact in the altercation was appellant reaching into Harris’s car and/or hitting her while she was inside the car; (2) Harris testified that at the time appellant first cut her, appellant had the cane; (3) Vinzant stated that when Harris took the cane from him, he backed away “[b]ecause [Harris] was swinging and defending herself with [the stick] and I didn’t want to get hit with it”; (4) Peete testified the portion of appellant’s body Harris hit with the cane was “around his shoulder, chest area”; (5) Kim stated he “did not see any visible injury” on appellant; (6) Kirven testified appellant’s hospital records from his visit to the emergency room on the date in question state there was “no bleeding noted” and his CT scan and x-rays were “normal” and showed no swelling; (7) Kirven stated she diagnosed appellant with a concussion two weeks later based solely on what appellant told her; (8) Peete stated the two men who helped Harris into the apartment did not at any time do “anything physical” other than trying to get appellant and Harris to “separate” and “break it up”; and (9) a cane that appellant testified is “basically the same” as the cane used in the altercation was published to the jury. As described above, the jury was free to believe or disbelieve the testimony of all witnesses and to accept or reject any or all of the evidence produced by the respective parties. See Cleveland, 177 S.W.3d at 380.

On this record, we conclude the evidence is sufficient to support a finding by the jury that appellant could not have reasonably believed deadly force was immediately necessary to protect him against the use or attempted use of deadly force by Harris. See PENAL CODE § 9.32(a). Therefore, we conclude a rational jury could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.