In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00060-CR __________________
ZACHARY KAPEL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 20-34473 __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Zachary Kapel for murder, for intentionally
and knowingly causing the death of Shane Jones by shooting him with a deadly
weapon, namely a firearm. Kapel pleaded not guilty, but a jury found him guilty as
charged and assessed punishment at sixty-five years’ imprisonment and a fine of
$10,000. On appeal, Kapel challenges the sufficiency of the evidence to support the
jury’s rejection of Kapel’s argument that he acted in self-defense. We affirm.
1 Evidence at Trial
Testimony of “Anna”1
Anna testified that on April 26, 2020, she was visiting her friend Fred at his
home on Stone Town Road. At that time, Shane Jones was living in a camper on
Fred’s property. According to Anna, at the time of the shooting, Hope was also at
Fred’s property, Hope was romantically involved with Zachary Kapel, and Anna
heard Hope call Kapel to come pick her up. Anna testified that Hope asked Shane
for permission to have Kapel pick her up because Shane would not allow Kapel on
the property because Shane and Kapel were fighting about Hope and about some
money that was owed. Anna recalled that sometimes Hope would “escape from
Zach’s abuse by going over to Shane’s.” Shane agreed that Kapel could come pick
up Hope provided Kapel stayed “on the street, down the road[,]” but he could not
enter the gate or onto the property. Anna agreed there was a long, private driveway
on Fred’s property, which led to the location where Shane lived.
According to Anna, Shane let Anna sit inside his camper while he went to the
store, and as Shane was leaving, he was in a good mood, and he was holding a T-
shirt. Anna testified that Shane was not carrying a firearm, knife, club, bat, pipe
wrench, nor anything else that could cause harm to another person. Anna further
1 We use pseudonyms to refer to civilian witnesses who are not affiliated with law enforcement. 2 testified that after Shane turned to leave, Anna sat down on the steps, she heard
Kapel’s truck pull in, and then she heard “a little yelling and [] a loud bang.” After
she heard arguing, Anna also saw Kapel’s truck. According to Anna, she could not
hear what the arguing was about. Anna testified that the bang occurred immediately
after the arguing. Anna recalled that she saw Kapel standing over Shane “hollering
at him[,]” repeatedly saying, “I told you this was going to happen[,]” and it looked
like Kapel had a firearm in his hand.
Anna recalled that, at that point, Kapel started walking toward the camper and
she was scared. Anna testified that Hope was yelling, “I can’t believe you killed
him[,]” and Kapel replied, “What else did you think was going to happen? I told you
this was going to happen.” According to Anna, Hope was hollering at the neighbors
to call 911, and Hope was trying to stop Kapel from leaving. Anna testified that
Kapel wanted to leave, he wanted Hope to leave with him, Hope stood in front of
his truck to try to keep him from leaving as Kapel pulled out, Hope told Kapel to
stay and wait for the police, and eventually Hope moved out of the way of Kapel’s
truck. According to Anna, Kapel left, the police arrived, and it was “a good while”
before Kapel returned to the scene. Anna testified that she saw the wounds that Shane
sustained. She did not see a weapon, knife, wrench, or pipe near or around his body.
According to Anna, when the shooting occurred, Kapel’s vehicle was “well into” the
property.
3 Anna explained that at one time, Kapel and Shane were friends, but at some
point, they had a falling out after Kapel sold some of Shane’s things and Kapel was
seeing Shane’s girlfriend while Shane was in jail. Anna recalled that a few days
before the shooting, Shane confronted Kapel when she and Kapel were delivering a
mattress to Fred, who lived on the same property as Shane, Shane was not happy
that Kapel was at his residence, and Shane told Kapel, “I told you not to come over
here to my house.” Anna recalled that Shane accused Kapel of stealing from him and
the two men had a brief physical fight.
Anna testified that her friend Jack waited with her while she was waiting for
the police to arrive, and that Jack was deceased at the time of trial. Anna recognized
the knife pictured in State’s Exhibits 77 through 80 as Jack’s knife, which she
recognized because Jack liked to wrap the handle of his knife.
On cross-examination, Anna testified that she knew that Shane used
methamphetamine, but she was not aware whether Shane had used it on the day of
the shooting. According to Anna, Shane did not become mean when using
methamphetamine. Anna remembered telling a detective that Kapel told Shane, “I
told you this would happen.” Anna also recalled telling the police that she heard a
click before the gunshot. Anna agreed that the disagreement between Shane and
Kapel related to Kapel stealing from Shane and also that Kapel sold Shane “some
fake drugs[]” and Shane wanted his money back.
4 Anna agreed that the photographs in Defendant’s Exhibits 1 and 2 show a
wrench sitting on the seat of Jack’s car. On redirect, Anna testified that, after the
shooting, she did not see Jack walk up to Shane’s body, pick something up, and then
put it in his vehicle. She also testified that, after the shooting, Kapel was not
“freaking out[,]” he acted “[l]ike it was okay to do that[,]” and “[a]ll he cared about
was leaving.” Anna further testified that Kapel did not say anything about calling
911, the police, nor an ambulance to get Shane some help. On recross, Anna agreed
she knew that Kapel had called 911 shortly after he left the property and that he had
returned to the property later.
Testimony of “Paul”
Paul testified that he lived next to Fred’s property on Stone Town Road. Paul
recalled that on April 26, 2020, he was doing some painting on his property, and he
could hear several people at Fred’s property “screaming, hollering, [and] cussing.”
Paul’s friend Jonah was with Paul, and Jonah said to him, “you hear that? []
[S]omething is going to happen over there.” And then Paul and Jonah heard a shot,
and they heard someone scream. According to Paul, Jonah ran over to Fred’s
property, and when he returned, he said, “call 911, the man is dead on the ground. []
He shot him.” Paul testified that he called 911. Paul also testified that he walked to
the neighboring property and saw the body, and he did not see a weapon, gun, or
knife near the body. Paul recalled that the police and first responders arrived in about
5 five minutes. Paul identified the defendant, Zachary Kapel, as the person who drove
a white truck away from the property after the shooting. Paul testified that he knew
Fred owned a gun, and he believed that Fred was a “dopehead.” On cross-
examination, Paul testified that he did not see the shooting, but he did see one of the
women trying to stop the white pickup truck from leaving.
Testimony of “Jonah”
Jonah testified that he visits Paul at his property on Stone Town Road from
time to time, and he was fishing at Paul’s on April 26, 2020, while Paul was painting.
Jonah recalled hearing a firearm discharge that afternoon, and he also heard arguing
and screaming at the property next door. Jonah testified that after he heard the
gunshot, he walked next door and saw a truck in the driveway, a guy trying to get
into the truck, and a screaming woman trying to stop the man from getting into the
truck. Jonah asked if everything was okay, and the man gave a thumbs-up and said,
“Yeah. Everything is fine now[,]” but the woman said, “No. Call 911. Someone has
been shot.” Jonah identified the defendant as the man who was trying to get into the
truck and drive away. According to Jonah, the man’s only concern seemed to be that
he was being held back and he did not seem concerned for the person who was shot.
Jonah explained that he ran back to Paul’s property and told him to call 911 because
someone had been shot. Jonah recalled that the woman was trying to keep the
defendant at the scene that afternoon, but the defendant ultimately left the scene in
6 the truck. At some point, Jonah saw the white truck come back after the police had
arrived.
Testimony of Sergeant Shawn Tolley
Sergeant Shawn Tolley testified that he supervises the 911 operations center
for the Beaumont Police Department, and he also serves as a custodian of records.
Tolley testified that all calls are routinely recorded as they are received, and the
recorded calls are stored for at least five years. Tolley identified State’s Exhibits 11
and 12 as recordings of 911 calls in connection with this case. The recordings were
published to the jury. Exhibit 11 includes two calls in which the callers report that
someone was shot and that someone drove away in a white pickup truck. Exhibit 12
is a call from Kapel to 911, in which Kapel tells dispatch that a man slammed his
vehicle door on Kapel’s legs and Kapel shot the man in the chest with a rifle. Kapel
also tells 911 dispatch that he knew the name of the person whom he shot, but the
person was not his friend, and the person was “a violent person” who was “in and
out of prison.” Kapel tells 911 dispatch that he is on his way home to get cleaned up,
and dispatch instructs him to return to the scene.
7 Testimony of Officer John Woods
Officer John Woods testified that he was dispatched to an address on Stone
Town Road on April 26, 2020, regarding a call about a shooting victim. Woods
testified that when he and another officer entered the property, they saw a man lying
face down and the man appeared to be deceased. According to Woods, the property
was “fairly large” with several buildings, campers, and vehicles, and the officers
started checking the property for suspects or threats. Woods testified that, when EMS
arrived, they turned the man’s body over, which revealed that he had an “extensive
and traumatic[]” wound to his chest. According to Woods, one of the EMS personnel
identified another wound on the man’s side near his armpit.
At some point, Woods saw a white truck driving down the road towards him.
According to Woods, he told the driver of the white truck to move along, and the
driver said he was the person who shot the victim. Woods drew his service weapon
and told the driver to stop the truck, and he summoned other officers for assistance.
Woods identified the defendant as the driver of the white truck. Woods testified that
the defendant’s truck had several defects and the driver’s door would not open from
the outside. Woods further testified that the defendant told the officers that the gun
was in the back of the vehicle.
Officer Woods identified State’s Exhibits 32 through 43 as photographs taken
at the scene that day, depicting the defendant’s truck with an area on the driver’s
8 side outside of the truck covered in blood and a hole near a window that appeared to
have been made by a projectile. According to Woods, there was no blood or blood
splatter inside the truck. In Woods’s opinion, the victim was “very close to the truck
when he was shot[,]” the victim would have been outside of the truck, and it appeared
that the bullet came from inside the truck.
Woods agreed his body camera was activated while he was investigating the
scene. Woods recalled that call notes on the incident mentioned that the deceased
person had a knife at the time of the altercation, but Woods testified that he did not
see any sort of weapon, like a firearm, knife, or other deadly weapon, near the
victim’s body nor in his hands. State’s Exhibit 13, the recording from Woods’s body
camera, was published to the jury.
On cross-examination, Woods agreed there were other people at the scene
when he arrived, and he would have no way of knowing whether those people might
have removed weapons before the police arrived. Woods agreed that a person who
was high on methamphetamine could potentially be violent.
Testimony of Officer Willie Melancon
Officer Willie Melancon testified that he was on patrol on April 26, 2020, and
he was dispatched to a disturbance involving a shooting victim on Stone Town Road.
In Melancon’s opinion, the victim had only been deceased for a short time because
the blood around his body was not dried and was still pooling underneath him.
9 Melancon testified that he did not see any kind of weapon, such as a firearm, knife,
club, or wrench, near the victim.
According to Melancon, law enforcement had been told that the shooter had
left the scene in a white pickup truck, and while the officers were present, the white
pickup returned, and Officer Woods detained the driver. Upon approaching the white
truck to back up Officer Woods, Melancon observed “an abundance of blood on the
driver’s side door on the outside[]” of the truck. Melancon identified the defendant
as the driver of the white pickup truck. Melancon also testified that the defendant
told officers at the scene, “I’m the one who shot him.”
Melancon testified that taking the defendant into custody was complicated by
the fact that the driver’s side door of his pickup truck did not have a handle on the
outside. Melancon testified that the defendant said his firearm was in the back of his
truck, and Melancon found the firearm in the bed of the truck. According to
Melancon, the firearm was a .308 caliber rifle, which is a “very high-powered
caliber.” In Melancon’s opinion, if the driver was inside the truck with the window
rolled up with someone attacking, the driver’s first duty should be to drive away and
not to shoot. Melancon agreed that he wore his body camera while he responded to
the incident. The recording from the body camera was admitted into evidence as
State’s Exhibit 14 and published to the jury.
10 On cross-examination, Melancon agreed that in his body camera recording he
says that the police “are always out there to that area[]” because of disputes between
neighbors. He also agreed that his report of the incident noted that Kapel made
several statements declaring that his actions were based on self-defense.
Testimony of Officer Jay Revia
Officer Jay Revia testified that he works for the Beaumont Police Department,
and he was dispatched to a call about a shooting victim on Stone Town Road on
April 26, 2020, where he assisted with retrieving potential evidence from a white
pickup truck. Revia identified State’s Exhibits 44 through 60 as photographs of items
he retrieved from the scene of the shooting that day. According to Revia, the items
included a black rifle with a “silver-ish” barrel, a rifle cartridge, and a magazine.
Testimony of Michelle Ceja
Michelle Ceja, a crime scene technician for the Beaumont Police Department,
testified that she was called to a scene on Stone Town Road on April 26, 2020,
related to a shooting victim. Ceja testified that, after she marked the scene, she took
the photographs depicted in State’s Exhibits 15 through 31. Ceja identified tire
marks in Exhibits 29 through 31. Ceja also testified that she collected items located
in the back of the suspect’s vehicle, including a rifle and its contents. Ceja testified
that she photographed the defendant and collected gunshot residue (“GSR”) from
him. Ceja identified possible blood on the defendant’s fingers in State’s Exhibit 62.
11 Ceja identified State’s Exhibit 75 as the GSR evidence collection kit she used on
Kapel. Ceja also testified that she took swabs or biological samples from various
items that could later be used to test for DNA, including the rifle, items in Kapel’s
truck, the steering wheel, the driver’s side rear panel arch paneling, the driver’s side
door and tire of Kapel’s truck, and the broken front driver’s side window of Kapel’s
truck. According to Ceja, after collecting these samples, she delivered them to a
secure evidence locker in the property division of the police department.
On cross-examination, Ceja identified certain photographs of Kapel that were
admitted into evidence. The photographs depicted bruising or an injury on Kapel’s
left arm, marks on his legs, and marks or bruising on his head.
Testimony of Steve Mayes
Steve Mayes, a forensic scientist with the Jefferson County Regional Crime
Lab, testified that his lab does not do DNA testing, but it does test for blood or other
body fluids. Mayes testified that he did the blood testing on various items of
evidence, and blood was detected on the items admitted as State’s Exhibits 81 and
82, which included swabs from the broken front driver window, the steering wheel,
and the barrel of the rifle. After he completed his testing, he packaged the swabs and
sent them to the Department of Public Safety (“DPS”).
12 Testimony of Timothy Spikes
Timothy Spikes testified that he is an investigator with the Beaumont Police
Department, and on April 26, 2020, he was dispatched to a location on Stone Town
Road relating to a shooting. According to Spikes, when he arrived at the scene, the
suspect was detained in a patrol vehicle, and the suspect wanted to speak with him.
Spikes identified the defendant as the suspect. Spikes agreed that the defendant gave
him a voluntary statement that day, during which Spikes asked no questions.
According to Spikes, Kapel told him he was injured during the incident, and he
wanted his injuries to be photographed. Spikes testified that he saw some possible
discoloration, bruising, and injuries on Kapel’s lower legs, and he agreed that a
police ID technician took photographs of the injuries. Spikes reviewed photographs
of Kapel in State’s Exhibits 65 through 67, and he testified they showed no
“apparent[]” injuries or possibly only minor injuries.
Spikes agreed that he later had a more formal interview of the defendant at
the scene that was recorded and during which Kapel was given Miranda warnings.
A recording of the interview was admitted as State’s Exhibit 102. According to
Spikes, Kapel told him that the victim slammed his leg in the door twice, but this did
not make sense to Spikes because the injuries were to Kapel’s right leg, which would
indicate he was outside of his vehicle, and “[t]here w[ere] no injuries at all to indicate
that he was getting slammed in the door.” In addition, Spikes noted there was no
13 door handle to open the driver’s door, even though Kapel had stated in his 911 call
that the victim opened his door. Spikes explained as follows:
I was [led] to believe that - - from the 911 recording that Mr. Kapel stated that “he opened my door, attacked me, and then I shot him.” So in order to open that door, the victim had to reach inside the vehicle because there was no door handle to open the door. So the victim was actually close once that shot was fired. That indicated to me, if he opened the door, like Mr. Kapel stated, there would be injuries consistent with what he said; and those injuries weren’t consistent.
In addition, Spikes testified that, in the three interactions he had with Kapel, Kapel
did not say that the victim was wielding some sort of deadly weapon.
Spikes also testified that, while at the scene, he retrieved a knife out of Jack’s
vehicle after Jack consented to a search and after witnesses “stated that a possible
knife was involved.” According to Spikes, Jack’s knife was not blood soaked, and
the knife appeared to have been “stuck between the seat like it had been there for a
while[]” and in Spikes’s opinion, “the knife had been there a long time.” Spikes
testified that, if Jack’s knife had been involved in the incident, there would have
been blood on it.
Spikes obtained a blood spot card after the victim’s autopsy. He also obtained
a search warrant to get a DNA sample from Kapel, and Kapel voluntarily gave
Spikes permission to get a buccal swab. Spikes testified that these samples were sent
to the DPS crime lab.
14 On cross-examination, Spikes agreed that, in Kapel’s recorded interview, he
stated, “I didn’t want this to happen.” Spikes agreed that Kapel’s injuries could have
occurred if he had opened his truck’s door and had both legs outside of the truck,
but he testified that, in his opinion, Kapel’s injuries were not consistent with being
slammed by a vehicle door. Spikes also agreed that the search of Jack’s vehicle
identified a wrench on the seat that was photographed for evidence. Spikes identified
Defendant’s Exhibit 7 as a small baggie of a narcotic drug that was in the victim’s
front left pocket. Spikes agreed that it was possible that Kapel shot Shane Jones from
inside Kapel’s vehicle.
On redirect, Spikes agreed that in his twenty-one years of experience as a
police officer, there had never been an instance where an automobile door was used
as a deadly weapon. He also agreed that Kapel’s injuries were not consistent with
serious bodily injury.
Testimony of Jennifer Young
Jennifer Young testified that she is a forensic scientist in the DNA section of
the DPS Safety Crime Laboratory in Houston. Young agreed that she prepared a
forensic biology and DNA lab report in connection with this case. Young testified
that the DNA from the swab of the broken front driver window in Kapel’s truck was
from a single individual, and the “probability of obtaining this profile if the DNA
came from Shane Jones is 271 septillion times greater than the probability of
15 obtaining a profile if the DNA came from an unrelated, unknown individual.” Young
excluded Kapel as a contributor of this profile. As to the DNA from the swab of the
steering wheel from Zachary Kapel’s vehicle, Young testified that “[t]he probability
of obtaining this profile if the DNA came from Zachary Kapel is 31.3 septillion times
greater than the probability of obtaining the profile if the DNA came from an
unrelated, unknown individual.” Young excluded Shane Jones as a contributor of
this profile. Young also testified that her analysis of the DNA swab from the barrel
of the rifle reflected that both Kapel and Jones were possible contributors to the
profile. Young interpreted the DNA from another swab from the rifle to be a mixture
of three individuals, including Kapel and Jones as possible contributors.
Testimony of Dr. Selly Strauch
Dr. Selly Strauch testified that she is the chief forensic pathologist at Forensic
Medical Management Services of Texas, and she performed an autopsy of Shane
Jones. Dr. Strauch concluded that the manner of Shane Jones’s death was homicide,
and the cause of his death was “gunshot wound, right full wound in chest perforating
lungs, trachea, and aorta.” Strauch testified that Jones received an “intermediate
range gunshot wound[]” to his left upper chest, which resulted in massive internal
bleeding. According to Strauch, the stippling marks on Jones reflected that the fatal
shot occurred “between two inches and two f[ee]t” away. Strauch testified that,
based on the stippling, she concluded that Jones was “definitely facing whoever
16 [shot] him on the left side of his body.” Strauch further testified that the entrance
wound is on the left side of Jones’s chest, and the exit wound is underneath his
armpit. Strauch testified that the toxicology analysis of Jones showed
“[m]ethamphetamine and [] the metabolized amphetamine[,]” but it was not the
cause of his death. Photographs from the autopsy of Jones were admitted into
evidence.
On cross-examination, Strauch testified that Jones’s body had both stippling
and pseudo stippling, and she agreed that the pattern was consistent with Jones being
at a vehicle’s door with his left arm behind a partially opened window. She also
testified that the toxicology analysis showed Jones tested positive for caffeine,
cotinine, amphetamine, and methamphetamine.
On redirect, Strauch agreed that the evidence in this case was not consistent
with Jones having his arm inside the vehicle before he was shot. She also agreed that
the pattern of stippling and pseudo stippling reflects that something—such as a
window—was between the body and the bullet that was fired. In examining
Defendant’s Exhibit 22, a photograph of Kapel’s lower legs taken on the day of the
shooting, Strauch testified that the injuries she observed in the photo looked like an
abrasion, whereas injuries from getting a car door slammed on one’s leg would look
more like “pattern blunt force trauma[]” with bruising.
17 Testimony of Captain Bruce Minter
Captain Bruce Minter testified that he is the records and technology captain
at the Jefferson County Correctional Facility and the custodian of records for phone
calls made by inmates. Minter testified that inmate phone calls are recorded, and he
screens the phone calls. According to Minter, when an inmate begins to make a
phone call, a recording tells the inmate his balance and states that the calls are
recorded. Minter testified that, when an inmate makes a phone call, he identifies
himself by his voice and also a pin number. Minter identified State’s Exhibit 103 as
recordings of two phone calls made by Zachary Kapel and Exhibit 103 was published
to the jury. In one call, Kapel tells a woman and a man Kapel called that it was “self
defense.” When the man asks Kapel whether the person had a weapon, Kapel replies,
“I’m not sure.” Later in the conversation, Kapel tells the man, “I went to pick my
girlfriend up, and the next thing you know my car got bum rushed.”
In another call to a woman, the following exchange occurs:
Woman: Did he come at you while you were in your truck?
Kapel: Yeah, I didn’t even see it until he was already up on the truck. I couldn’t see his hands.
Woman: Well, how do you know he had a knife then?
Kapel: I don’t know if he did or didn’t. He was making threats. I mean, I know he has one. He always does. I know who he is.
18 Testimony of “Hope”
The defense called Hope as a witness, and Hope testified that, at the time of
trial, she was serving time for possession of methamphetamine. She testified that she
and Kapel had been “on and off boyfriend and girlfriend[,]” and she had been friends
with Shane Jones. Hope agreed that, on the day of the shooting, she was at the
property off Tram Road where Shane was living, and she saw Shane smoke
methamphetamine that day. According to Hope, Shane smoked methamphetamine
until minutes before she was ready to leave, and Shane would get excited and
“hyper” when he smoked methamphetamine, and she knew Shane had “a violent
history” and was a “hot head.” At some point, she called Kapel to come get her.
Hope testified that, when she got off the phone, Shane asked if she called Kapel, and
when she said yes, Shane “got excited” and said he was going to hit him with the
nine-inch orange pipe wrench he had in his hand and that he would “bust his
windshield and get him.” Hope agreed that Shane said Kapel owed him money for
selling him “fake drugs.” According to Hope, when Kapel arrived, Shane ran toward
Kapel’s truck with the pipe wrench raised above his head, she heard a crack and a
click, and she thought that Shane had broken Kapel’s windshield. Hope testified that
she saw Shane hit the truck. She then heard a door slam and a gunshot. When she
got to Kapel’s truck, Kapel was getting out of the truck, and Shane was on the
ground. According to Hope, Kapel said, “He came at me. He attacked me. [] I
19 thought he was going to stab me. [] We have to call 911.” At that point, Hope went
next door and asked people to call 911. Hope testified that Shane was lying face
down about two feet from Kapel’s truck.
On cross-examination, Hope agreed that, on the day before the shooting, she
asked Kapel to sell her a “ball” of methamphetamine so she could sell it to Shane,
but she did not tell Kapel she planned to sell it to Shane because there was already
tension between the two men. Hope agreed that she told the police that Shane was
running towards Kapel’s truck “with something in his hand,” but she never
mentioned an orange pipe wrench. Hope also agreed she did not witness the shooting
itself.
Testimony of Zachary Kapel
Zachary Kapel testified that, on the day of the incident, he was at home when
he received a phone call from Hope asking him to pick her up at Fred’s house. Kapel
testified that Shane also lived at Fred’s property, about three miles from Kapel’s
home. Kapel testified that he drove his truck to Fred’s house, and his rifle was in the
extended cab behind the driver’s seat. According to Kapel, he had just gotten the
rifle and was getting ready to use it for deer hunting. Kapel recalled that, when he
got to Fred’s property, he pulled into the driveway, but “not all the way[,]” because
he and Shane had fought a couple of days earlier and he did not want any problems.
Kapel explained that, when he stopped, he “did a 360 view [to] make sure nobody
20 was around.” Kapel further testified that he opened his door just enough to make
room for his legs, his feet were hanging down and not touching the ground, and the
door was “leaning on [his] legs.” As he was waiting for Hope and looking at his
phone, he heard “something loud, bang, something hit [his] truck. [] Like, someone
hit it with something solid, like, a piece of metal.” Kapel thought the loud noise came
from the front right of the truck, possibly the passenger side. Kapel agreed the noise
sounded like metal on metal, “almost a gunshot[,]” and Kapel could feel the impact.
According to Kapel, when he looked up, he saw someone moving fast who slammed
into the door of his truck and pushed on the door. Kapel agreed that, when the person
slammed into his door, it hit his lower legs and his legs were pinned. Kapel testified
that “it wasn’t a terrible pain, but it really hurt.” Kapel recalled that, when he looked
up, he saw it was Shane Jones who had slammed against the truck, Shane was
screaming that Kapel should have known better than to come to the property, and
Shane said “I’m about to f*** your a** up.”
Kapel testified that, at that point, Shane “immediately grabbed [his]
window[.]” According to Kapel, his window was rolled down “maybe a third[.]”
Kapel testified that he could not see anything in Shane’s hand, but he knew Shane
had something in his right hand because he had just hit the truck with it. Kapel agreed
that Shane stuck his arm through the door window, possibly to roll the window
down, and Kapel reached for his firearm. Kapel screamed at Shane to back up, but
21 Shane did not seem to care even though Shane had seen the gun, and Kapel thought
Shane appeared “out of control[,]” the same way Shane looked a couple of days
earlier when Shane assaulted Kapel. According to Kapel, Shane reached for the truck
window with his left hand to either break the window or throw something at Kapel’s
face, and Shane’s right hand was still. Kapel testified that Shane was screaming at
him, and Kapel had no doubt that Shane “was coming in.” Kapel recalled that he
told Shane to stop and to back up, but that Shane would not stop. Kapel testified, “I
felt like he was about to either keep me or severe - - put me in the hospital[.]” After
Shane cocked his arm, it appeared he was about to smash the window, and Kapel
pulled the trigger and fired once. According to Kapel, he was trying to stop Shane,
not kill him. Kapel recalled that Shane fell to the ground “very close[]” to the truck.
When Kapel’s attorney asked if he saw a weapon in Shane’s hand, Kapel replied, “I
didn’t look.”
According to Kapel, at that point, Hope, Anna, and Jack ran towards him and
they were all screaming. Kapel testified that he told Hope to get in the truck, but she
did not, and Kapel drove away. Kapel recalled that a few minutes later, he called
911, who instructed Kapel to return to the property. Before he returned, he took the
clip out of his rifle and put it in the back of his truck.
Kapel testified that, in the year he had known Shane, the police were called to
the house a few times for Shane “beating up his girlfriend.” Kapel agreed that Shane
22 used methamphetamine. According to Kapel, he had bought a welder a couple of
days before the shooting, and Shane stole it, and when Hope asked for an “eight ball”
of methamphetamine for Shane, Kapel gave her a bag of Epsom salt, which Hope
then sold to Shane. Kapel recalled that Shane called him making threats and also
showed up at Kapel’s house. Kapel testified that, another time, Kapel was helping
people move a mattress to the property where Shane lived, and Shane attacked
Kapel, told Kapel he should not have come over, and slammed Kapel’s truck door,
and the two men ended up fighting. Kapel did not know why Shane was “out of
control.” According to Kapel, he told the police that he did not want this to happen,
he did not want Shane to be killed, and he just did not want anything to do with
Shane.
On cross-examination, Kapel testified that the driver’s side door handle on his
truck was not connected and was not usable, but there is a nearby lever that connects
to the handle, which someone can use to open the door from inside or outside the
truck. Kapel agreed he knew before the shooting that Shane lived at Fred’s property,
and Shane had told Kapel not to come over there. Kapel testified that he never said,
“I told you this was going to happen.” Kapel also testified that he did not mean to
kill Shane, but he agreed he was attempting to injure Shane, and he gave Shane
warnings. According to Kapel, the photo in Defendant’s Exhibit 22 depicts the
injuries he received from the vehicle door being slammed on his legs. Kapel testified
23 that he could not see what Shane was holding, but there was “no doubt in [Kapel’s]
mind that [Shane] had a weapon[,]” Shane hit Kapel’s truck with “something
hard[,]” and when Shane was coming into Kapel’s truck, Kapel “felt like [he] had
no choice but to defend [him]self[]” and Kapel “felt like [he] was about to be killed
[] or seriously injured.” According to Kapel, when Shane put his arm through the
truck window or smashed the window, it was “a beginning of a life threatening
event.” When shown photographs of his truck from the day of the shooting, Kapel
could not identify any damage to the truck caused by Shane. Kapel agreed that Shane
died as a result of Kapel shooting him.
The jury charge included an instruction on self-defense.2 The jury found
Kapel guilty of murder as charged in the indictment. After a hearing on punishment,
the jury assessed punishment at sixty-five years of imprisonment and a fine of
$10,000. Kapel timely filed a notice of appeal.
Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence—including the evidence
supporting a jury’s rejection of a self-defense claim—we review all the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Braughton v. State, 569 S.W.3d 592,
2 Kapel does not challenge the jury charge on appeal. 24 607-08 (Tex. Crim. App. 2018); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We give deference to the factfinder’s responsibility to fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains
conflicting inferences, we must presume that the factfinder resolved such facts in
favor of the verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 893,
899 n.13 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also Jackson, 443 U.S. at 319 (the
factfinder’s responsibility is “to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts[]”);
Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) (citing Hooper,
214 S.W.3d at 12). The jury as factfinder is the sole judge of the weight of the
evidence and credibility of the witnesses, and it may believe all, some, or none of
the testimony presented by the parties. See Febus v. State, 542 S.W.3d 568, 572
(Tex. Crim. App. 2018); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App.
2000); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The
appellate court does not reweigh the evidence nor determine the credibility of the
evidence, nor does it substitute its own judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
25 “Direct and circumstantial evidence are treated equally: ‘Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.’” Clayton, 235
S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). Each fact need not point directly
and independently to the guilt of the defendant, as long as the cumulative force of
all the incriminating circumstances is sufficient to support the conviction. Temple v.
State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13;
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
In a homicide case, the defendant’s state of mind is a question of fact for the
jury to determine, and the jury may infer intent “from any facts in evidence which it
determines proves the existence of such intent to kill, such as the use of a deadly
weapon.” Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (citing Hall
v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967)). “It is both a common-sense
inference and an appellate presumption that a person intends the natural
consequences of his acts and that the act of pointing a loaded gun at someone and
shooting it toward that person at close range demonstrates an intent to kill.” Ex parte
Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005) (internal citations
omitted). Intent to murder can be inferred from circumstantial evidence, such as a
defendant’s acts, words, and the extent of the victim’s injuries. See Ex parte
Weinstein, 421 S.W.3d 656, 668-69 (Tex. Crim. App. 2014). Evidence of flight
26 reflects on a defendant’s consciousness of guilt of the crime charged. See Yost v.
State, 222 S.W.3d 865, 875 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)
(citing Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (en banc)).
A person is justified in using force against another when and to the degree that
person reasonably believes the force is immediately necessary to protect himself
against another person’s use or attempted use of unlawful force. See Tex. Penal Code
Ann. § 9.31(a); Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). A
person is justified in using deadly force if he would be justified in using force under
section 9.31, and he reasonably believed that deadly force was immediately
necessary to protect himself against another’s use or attempted use of deadly force.
Gamino, 537 S.W.3d at 510; see also Tex. Penal Code Ann. § 9.32(a). The Penal
Code defines the term “reasonable belief” to mean a “belief that would be held by
an ordinary and prudent man in the same circumstances as the actor.” Tex. Penal
Code Ann. § 1.07(42).
Whether the defendant acted in self-defense is a question for the jury to
decide. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Where a
defendant claims self-defense, the defendant bears the burden of production, which
requires the production of some evidence that supports the defense. See Zuliani v.
State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Tex. Penal Code Ann. §
2.03; Saxton, 804 S.W.2d at 914). Once the defendant produces such evidence, the
27 State then bears the burden of persuasion to disprove the defense. Id. The State is
not required to produce evidence that refutes the claim of self-defense, but it must
prove its case beyond a reasonable doubt. Id. A jury is free to accept or reject the
evidence of self-defense, and a jury verdict of guilty is an implicit finding against
the defensive theory. See id.; Saxton, 804 S.W.2d at 914.
Analysis
Appellant testified that he shot Shane Jones, and the only issue on appeal is
the sufficiency of the evidence to support the jury’s implicit finding rejecting
Kapel’s claim that he acted in self-defense. Appellant argues that he shot Jones in
self-defense after Jones ran up to Appellant’s vehicle and struck it with something
hard, possibly a pipe wrench. Appellant claims he feared for his safety and for his
life, and he fired a hunting rifle at Jones from inside the vehicle, and he killed Jones.
The jury heard Anna testify that, when she saw Shane before the shooting, she
did not see him carrying a firearm, knife, club, bat, pipe wrench, nor any other
weapon. Anna also testified that, after the shooting, she did not see a weapon, knife,
wrench, nor pipe near or around Shane’s body. Paul, a neighbor, testified that when
he went to the property immediately after the shooting, he did not see a weapon, gun,
or knife near Shane’s body. Officers Woods and Melancon, who responded to a call
of the shooting on April 26, 2020, testified that they did not see any kind of weapon,
including a firearm or knife, near Shane’s body or hands. Investigator Spikes
28 testified that, while investigating at the scene shortly after the shooting, he found a
knife in Jack’s vehicle, but Spikes thought the knife had been stuck in the seat of the
car for quite some time. Spikes also agreed that the search of Jack’s vehicle identified
a wrench on the seat that was photographed for evidence. Dr. Strauch testified that
the evidence in this case was not consistent with Jones having his arm inside the
vehicle before he was shot. She also agreed that the pattern of stippling and pseudo
stippling reflects that something—such as a window—was between the body and
the bullet that was fired. In examining Defendant’s Exhibit 22, a photograph of
Kapel’s lower legs taken on the day of the shooting, Strauch testified that the injuries
she observed in the photo looked like an abrasion, whereas injuries from getting a
car door slammed on one’s leg would look more like “pattern blunt force trauma[]”
with bruising.
By contrast, Hope testified for the defense that Shane had run towards Kapel’s
truck just before the shooting carrying a nine-inch orange pipe wrench. Kapel
testified at trial that he knew Shane had “something” in his right hand and that Shane
hit his truck with something solid that sounded like metal. Kapel admitted at trial
that the photographs of his truck that were taken after the shooting did not show any
damage to his truck caused by Shane. When Kapel’s attorney asked if Kapel saw
something in Shane’s hand, Kapel answered, “I didn’t look.” In recorded telephone
29 calls in jail, Kapel told people whom he called that he was not sure whether Shane
had a weapon and that he could not see Shane’s hands.
Kapel stated in his 911 call that someone had slammed the vehicle door on his
legs, and he testified at trial that Shane slammed into his vehicle and his legs were
pinned by the door of his truck. Dr. Strauch testified that the photographs of Kapel’s
legs on the day of the shooting looked like he had an abrasion but not the kind of
blunt force trauma and bruising he would have had if a car door had been slammed
on his legs. Investigator Spikes testified that photographs of Kapel’s legs showed
only minor injuries and that Kapel’s injuries were not consistent with being slammed
by a vehicle door nor with serious bodily injury.
Kapel testified that he left the property immediately after the shooting, but he
returned after he called 911. Flight is circumstantial evidence from which a jury may
infer consciousness of guilt. See Devoe v. State, 354 S.W.3d 457, 470 (Tex. Crim.
App. 2011) (citing Alba v. State, 905 S.W.2d 581, 586 (Tex. Crim. App. 1995));
Bigby, 892 S.W.2d at 884.
In this case, the jury was presented with conflicting views about the shooting,
and it had to decide the case based on which view it determined was more credible.
See Braughton, 569 S.W.3d at 610. There is sufficient evidence in the record to
rationally support the jury’s rejection of Appellant’s version of events. Id. at 611.
The jury’s decision to reject Kapel’s claim of self-defense could have hinged on the
30 credibility of the witnesses and the weight the jury decided to give to their testimony.
See Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)). The
testimony of a defendant does not conclusively prove a self-defense claim. Id. Here,
the jury chose not to believe Kapel’s and Hope’s testimony and to believe the
testimony of the other witnesses. The State’s witnesses, the physical evidence, and
Kapel’s flight from the scene undermine Kapel’s claim of self-defense. We conclude
that, based on the evidence presented at the trial, the jury could have rationally
rejected Kapel’s claim of self-defense and determined that deadly force was not
immediately necessary at the time Kapel shot Jones. See Tex. Penal Code Ann.
§§ 9.31, 9.32; Braughton, 569 S.W.3d at 610-11. We conclude that the evidence is
sufficient to support the jury’s rejection of Appellant’s self-defense claim, and we
overrule his issue. See Braughton, 569 S.W.3d at 613.
Having overruled Appellant’s issue, we affirm the trial court’s judgment of
conviction.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on May 3, 2024 Opinion Delivered June 12, 2024 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ. 31