Anderson, Anthony Lee v. State

• Court: Court of Appeals of Texas
• Decided: August 23, 2005
• Docket: 14-04-00532-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 23, 2005

Affirmed and Memorandum Opinion filed August 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00532-CR

ANTHONY LEE ANDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 978,550

M E M O R A N D U M   O P I N I O N

A jury convicted appellant of murder and the trial court sentenced him to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In eight issues, appellant contends the evidence is legally and factually insufficient to support his conviction, either as a principal or as a party, and is legally and factually insufficient to support the jury=s implicit rejection of his claims of self-defense and defense-of-a-third person.  We affirm.

Factual Background

On May 2, 2003, appellant and his brother, Tavan Deshawn-Albert Anderson, and two other men were in Tavan=s car, a gray Caprice, driving down the street where the complainant, Eric Banks, and his family lived.  Tavan was driving, and appellant was sitting in the passenger seat directly behind him.  They drove to the end of the street, and Tavan got out of the car to talk to someone briefly.  Tavan then got back in his car, and the group drove back up the street, toward the Banks= house, where Eric and Anthony Banks were Ahanging out@ with friends and family in the front yard.  The people at the Banks= house noticed the Caprice, because Tavan previously had driven the car across the Banks= front yard, and when Anthony Banks confronted him about it, Tavan and appellant had gotten into a fistfight with Anthony and his cousin.

This encounter between the Banks and appellant ended differently from the earlier one, although testimony at trial differed regarding what happened next.  The State presented eight witnesses who were in the Banks= yard at the time.  They testified that the Caprice slowed as it approached the Banks= house, and then shots were fired from the car.  One witness, Rashard Renfroe, testified that he, Anthony Banks, Eric Banks, and Jarvis Banks invited the Caprice=s occupants to a fistfight just before the shooting began.  Other witnesses testified that no one said anything to the Caprice=s occupants.  Some saw shots fired from the driver=s seat, others saw shots fired from the passenger seat, or both.  Accounts of how many shots were fired also varied, as did whether the car=s doors were opened or its windows were rolled down during the shooting.  The State=s witnesses testified that they had no guns, knives, or other kinds of weapons.  When the shooting ceased, the Caprice and its occupants drove away.  Anthony Banks had been shot five times, Eric was shot twice, and a bullet was found in a car that was parked at the Banks= house.  Anthony survived, but Eric was mortally wounded.^[1]

Appellant and another of the Caprice=s occupants, Alton Franklin, described the fatal encounter much differently.  Both testified that, as they drove back up the street, several of the people in the Banks= yard approached the car, preventing it from moving forward, and exchanged words with them.  Appellant testified that Anthony Banks, Eric Banks, and another person approached the driver=s side of the Caprice, while Rashard stood in front of the car and kicked in its grill.  Tavan had his driver=s seat leaned far back, making it appear that he was sitting in the rear passenger=s seat.  The group threatened Tavan, and tried to unlock and open the car doors on the driver=s side.  When Anthony could not open the driver=s side door, he pulled out a revolver and stuck it through the window, pointing it at Tavan=s head.  In fear for both his life and Tavan=s, appellant grabbed the gun.  According to appellant, Anthony was surprised by this because he had not seen appellant in the back seat.  Appellant wrestled the gun from Anthony, stuck it out the window, turned his head away, and shot it until all its bullets had been firedCat least four times.  He dropped the gun out the window and, as they drove away, told Tavan, AI think I hit someone.@

Appellant and Tavan were tried together.  The jury found Tavan not guilty, but it found appellant guilty of murder.  This appeal followed.

Analysis of Appellant=s Issues

In his first four issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder as either a principal or a party, because there is no evidence that he caused the complainant=s death.  In his fifth and sixth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder because the State never rebutted his assertion of self-defense beyond a reasonable doubt.  In his seventh and eighth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder because the State never rebutted his assertion of defense-of-a-third person beyond a reasonable doubt.  We first consider appellant=s issues concerning his conviction, and then address his issues concerning self-defense and defense of another.

A.        The Evidence is Legally and Factually Sufficient to Convict Appellant of Murder as a Principal.

Appellant was charged with the murder of Eric Banks, by shooting him with a firearm, on May 2, 2003.  The jury charge authorized the jury to find appellant guilty either as a principal or by applying the law of parties.  In his first four issues, appellant contends the evidence is legally and factually insufficient to support his conviction as either a principal or a party because there is no evidence that he caused Banks=s death.  We hold, however, that the evidence is both legally and factually sufficient to support appellant=s conviction as a principal; therefore, we need not determine whether it is sufficient to convict him as a party.

1.         Standards of review

We utilize familiar standards of review for appellant=s legal and factual sufficiency challenges.  In deciding appellant=s legal sufficiency challenges, we review all of the evidence in the light most favorable to the jury=s verdict to determine if any rational fact finder could have found all of the essential elements beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979).  In deciding appellant=s factual sufficiency challenges, we view all of the evidence in a neutral light, without the Amost‑favorable‑to‑the‑verdict@ prism.  See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. 2004).  The evidence is factually insufficient if a jury would not be rationally justified in finding guilt beyond a reasonable doubt.  Id. at 484.  The evidence may be factually insufficient in two ways.  Id.  First, the evidence that supports appellant=s guilty verdict may be so weak that the beyond‑a‑reasonable‑doubt standard could not have been met.  Id.  Second, weighing both the evidence that supports the verdict and the evidence contrary to the verdict, the contrary evidence may be so strong that the beyond‑a‑reasonable‑doubt standard could not have been met.  Id. at 484B85.  We give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony.  See Johnson v. State, 23 S.W.3d 1, 8B9 (Tex. Crim. App. 2000) (en banc).

2.         Application to the facts

To obtain a conviction for murder in this case, the State was required to prove beyond a reasonable doubt that appellant (1) intentionally or knowingly caused the death of Eric Banks, or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of Eric Banks.  See Tex. Pen. Code ' 19.02(b)(1), (2).  Appellant contends that many of the eyewitnesses could not identify appellant as the person shooting.  In addition, Anthony Banks positively testified that appellant shot him, not Eric, and that Tavan shot Eric.  Thus, appellant contends, the evidence is legally and factually insufficient to support his conviction for murder as a principal. 

However, during appellant=s testimony, he admitted that he shot Eric Banks.  When asked if he bore any responsibility for what happened despite his claim of self-defense, appellant answered affirmatively, explaining that: ABy me -- I believe by me taking the man=s life, you know, is -- is hurting me inside personally, because I know him.  I knew of Eric.  I had no problem with Eric.  Eric reminded me of myself.  Eric was always smiling like myself.@  In addition, both appellant and Franklin testified that after the shooting appellant told Tavan, AI think I hit one.@  Franklin also testified that appellant laughed as he said it and Tavan appeared surprised, implying that Tavan did not shoot anyone.  At least one other eyewitness, Jarvis Cox, testified he saw appellant shoot Eric.  This evidence is legally sufficient to support appellant=s conviction as a principal for murder.

Appellant contends that the evidence is factually insufficient primarily because Anthony Banks testified that appellant shot him, not Eric.  Appellant also asserts that Anthony=s testimony is consistent with appellant=s testimony that he grabbed a gun from Anthony and then shot in self-defense.  However, the jury is the sole judge of the witnesses= credibility and the strength of the evidence, and therefore was free to believe some, all, or none of the testimony and evidence presented at trial.  See Johnson, 23 S.W.3d at 7B9; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  Thus, the jury could have resolved this issue against appellant.  In addition, the jury had other evidence before it to support appellant=s guilt as a principal.  Although he could not identify the individuals, another eyewitness, Marcus Martin, testified that the person shooting was not the Caprice=s driver but was instead the passenger in the back seat behind the driver.  It is undisputed that appellant was seated there.  Catherine Banks identified appellant as the back seat passenger whom she saw fire a gun.  Another eyewitness, Joshua Banks, testified that the driver=s side passenger door opened and the passenger stuck his arm out and started shooting.  Joshua Banks also identified appellant as the person who shot Eric and Anthony Banks.

Reviewing the evidence in its entirety, we cannot say that the evidence that appellant caused Eric Banks=s death is so weak, or that the contrary evidence is so strong, that the beyond‑a‑reasonable‑doubt standard could not have been met.  Therefore, we hold the evidence factually sufficient to support his conviction for murder as a principal. 

We overrule appellant=s first and second issues.  Because we find that the evidence is legally and factually sufficient to support appellant=s conviction as a principal, we do not reach appellant=s third and fourth issues, in which he contends the evidence is legally and factually insufficient to convict him of murder as a party. 

B.        The Evidence is Legally and Factually Sufficient to Support the Jury=s Implicit Rejection of Appellant=s Self-Defense and Defense-of-a-Third-Person Claims.

In his fifth and sixth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder when the State never rebutted his assertion of self-defense beyond a reasonable doubt.  In his seventh and eighth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder when the State never rebutted beyond a reasonable doubt his assertion of defense-of-a-third person.  We address appellant=s self-defense sufficiency issues and appellant=s defense-of-a-third person sufficiency issues in turn.

1.         Standards of review and applicable law

At trial, appellant raised the defenses of self-defense and defense-of-a-third person, and the jury charge contained instructions on them.  See Tex. Pen. Code '' 9.31 (Self-Defense), 9.33 (Defense of Third Person); see also Tex. Pen. Code ' 9.02 (AIt is a defense to prosecution that the conduct in question is justified under this chapter.@).  A criminal defendant bears the burden of production with defenses, requiring him to raise evidence that would support the defense before he is entitled to it.  Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).  However, once raised, the State bears the burden of persuasion to disprove the defense. Id.  The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt.  Id.  The defense is a fact issue to be determined by the jury, which is free to accept or reject it.  Saxton v. State, 804 S.W.2d 910, 913B14 (Tex. Crim. App. 1991) (en banc).  When a jury finds the defendant guilty, there is an implicit finding against the defensive theory.  Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

Evidence is legally sufficient to support the jury=s rejection of an accused=s defensive theory if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt and also could have found against appellant on the self‑defense issue beyond a reasonable doubt.  Saxon, 804 S.W.2d at 914.  Evidence is factually sufficient to support the rejection of the defensive issue if, after reviewing the evidence in a neutral light, the State=s evidence taken alone is not too weak to support the rejection and the proof of guilt, although adequate if taken alone, is not against the great weight and preponderance of the evidence.  Zuliani, 97 S.W.3d at 595.

2.         Application to appellant=s self-defense claim

The Texas Penal Code provides that a person is justified in using force against another 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 ' 9.31(a).  A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31, (2) if a reasonable person in the actor=s situation would not have retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary either to protect himself against the other=s use or attempted use of unlawful deadly force, or to prevent the other=s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.  Id. ' 9.32(a).  ADeadly force@ is defined as Aforce 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 ' 9.01(3).

Appellant contends that his testimony established self-defense and further challenges the legal and factual sufficiency of the evidence the State introduced to rebut this defense. However, as noted above, the State=s burden is one of persuasion, not production of evidence. See Zuliani, 97 S.W.3d at 594.  The State is only required to prove its case beyond a reasonable doubt.  Id.  Appellant admitted killing Eric, but asserts that when Anthony Banks thrust a pistol inside the vehicle, apparently attempting to shoot appellant=s brother, Tavan, he feared that deadly force was about to be used against him as well.  Appellant also contends that he could not have reasonably retreated because he was inside a car surrounded on all sides by a hostile crowd.

Appellant=s testimony was the only evidence that anyone approached the car with a gun and endangered Tavan=s life.  The witnesses denied having any weapons of any kind, and Franklin, who was in the car with appellant, saw no weapons.^[2]  The jury could have found appellant=s testimony not credible.  See Johnson, 23 S.W.3d at 8B9; Fuentes, 991 S.W.2d at 271.  Even if the jury believed appellant=s testimony, it never raised evidence suggesting that deadly force was necessary to protect appellant from Eric=s (as opposed to Anthony=s) use or attempted use of unlawful deadly force.  Moreover, appellant testified that he took Anthony=s gun away from him before shooting it blindly out the window.  A rational fact finder could have found that any danger had been removed when appellant disarmed his attacker and, therefore, deadly force was not immediately necessary and thus not justified.  See Tex. Pen. Code ' 9.32(a)(3).

Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against appellant on self-defense beyond a reasonable doubt.  See Saxton, 804 S.W.2d at 914.  And, giving due deference to the jury=s assessment of the witnesses= credibility and resolution of evidentiary conflicts, we find that, after reviewing the evidence in a neutral light, the State=s evidence is not too weak to support the rejection of the defense, and the proof of guilt is not against the great weight and preponderance of the evidence.  See Zuliani, 97 S.W.3d at 595.  Therefore, we conclude the evidence is legally and factually sufficient to support appellant=s conviction.  We overrule appellant=s fifth and sixth issues.

3.         Application to appellant=s defense-of-a-third person claim

We now turn to appellant=s defense-of-a-third person claim.  A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under sections 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.  Tex. Pen. Code ' 9.33.  Appellant contends the State failed to rebut his testimony that the crowd was threatening his brother, Tavan, and, when appellant saw Anthony thrust a pistol through the car window, he acted out of fear that Tavan=s life was in immediate danger. 

However, engaging in the same analysis discussed above, we find that the evidence is both legally and factually sufficient to support the jury=s implicit rejection of appellant=s claim of defense-of-a-third person.  No evidence suggests that Eric, the person appellant was charged with killing, was threatening Tavan with imminent serious bodily injury or death.  Only appellant testified that Tavan was being threatened and even he did not point to Eric as the one pointing the gun at Tavan.  The jury could have concluded that appellant=s action was not immediately necessary for protection.  Therefore, we overrule appellant=s seventh and eighth issues.

Conclusion

Having overruled appellant=s challenges to the legal and factual sufficiency of the evidence supporting his conviction and his challenge to the jury=s implicit rejection of his defenses of self-defense and defense-of-a-third person, we affirm the trial court=s judgment.

/s/                    Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 23, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Dr. Analisa Lopez, an assistant medical examiner at the Harris County Medical Examiner=s office, testified that Eric Banks was shot once in the left chest and once in the left thigh; both wounds were fatal.

^[2]  Franklin testified he sat in the back seat of the car next to appellant, but appellant testified Franklin was sitting in the front passenger seat, and that is why he did not see Anthony put his hand in the car window.