David Allen Martin v. The State of Texas--Appeal from 208th District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00517-CR
David Allen MARTIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 208th Judicial District Court, Harris County, Texas
Trial Court No. 872759
Honorable Denise Collins, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 24, 2003

AFFIRMED

David Allen Martin appeals the judgment convicting him upon a jury's verdict of aggravated assault and sentencing him to nine and one-half years imprisonment. Martin contends that the evidence is legally and factually insufficient to support his conviction and the jury's rejection of his defense of self-defense. (1) See Tex. Pen. Code Ann. 9.32 (Vernon 2003) (defining the justified use of deadly force against another). We disagree and affirm the trial court's judgment.

Martin argues that the evidence is legally and factually insufficient to support his conviction and the jury's rejection of his defense of self-defense because the reasonableness of his belief that deadly force was required "is viewed from the defendant's standpoint at the time he acted." See Tex. Pen. Code Ann. 9.32 (Vernon 2003); Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). This is true. But "the credibility determination of [defensive] evidence is solely within the jury's province and the jury is free to accept or reject the defensive evidence," Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); and "[t]he jury is the exclusive judge ... of the weight to be given [witness] testimony." Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998), cert denied, 526 U.S. 1070 (1999). Here, the jury had to determine the credibility and weight to be given the testimony of Martin, the complainant, Ricky Lee McNell, and an eyewitness, Dena Hickey. Martin's version of the events leading up to the assault differed greatly from that of McKeel and Hickey.

McKeel testified that, following a driving altercation during which Martin pointed a semiautomatic handgun at him, he followed Martin for "about 15 or 20 minutes" to get Martin's license plate number and because he does not "run when confronted with danger." Eventually, after the two men stopped their vehicles in a residential neighborhood, Martin fired four shots at McKeel's truck. Dena Hickey, a resident of the neighborhood, testified that she heard four gunshots and witnessed Martin fire three of the shots toward McKeel's truck. According to Hickey, McKeel never exited his truck. Hickey also testified that, after Martin fired the shots, he yelled at her "to the effect that the son-of-a-bitch had been following him for five miles and that he had to shoot at the MF and for me to call the police." Deputy Constable Craig Hughes later recovered several shell casings from the scene and bullet fragments from McKeel's truck.

Martin's testimony differed from that of McKeel and Hickey in several key respects. Martin testified that, when he originally brandished the handgun, he did not point it at McKeel but merely "held it in the air so [McKeel] could see it." Martin also maintained that McKeel aggressively pursued him and that he feared McKeel would shoot him. Martin also testified that, after the two men stopped their vehicles, McKeel stood next to his truck and aimed a rifle at him; hence, Martin fired the four shots at McKeel because he felt like he was defending his life. Finally, Martin claimed that he asked Hickey to call the police before he fired any shots at McKeel's truck. But the jury had reason to disbelieve Martin.

When initially questioned by Deputy Constable Hughes, Martin denied having driven that day and denied being at the scene of the shooting. Later, McKeel and Hickey identified Martin as the person who fired the four shots at McKeel's truck. According to Martin, he lied to Deputy Constable Hughes because he was "freaked out" and "didn't want to admit anything that might incriminate [himself]" or say anything that would be "taken out of context[.]" Furthermore, while Martin argues that he did not believe he could retreat from the situation because McKeel was blocking the only exit from the neighborhood, see Tex. Pen. Code Ann. 9.32(a)(2) (Vernon 2003), Hickey testified that there were other exits that could have been taken.

After considering all the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found against Martin on the issue of self-defense beyond a reasonable doubt. See Vasquez v. State, 2 S.W.3d 355, 358 (Tex. App.-San Antonio 1999, pet. ref'd) (citing Saxton, 804 S.W.2d at 914). Furthermore, viewing the evidence in a neutral light, the State's evidence taken alone is not too weak to support the implied finding against self-defense and the proof of guilt is not against the great weight and preponderance of the evidence. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. Citing Texas Rules of Appellate Procedure 33.1(a)(1)(A) and (d), the State argues that Martin forfeited his sufficiency claims by failing to properly preserve them. See Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993) (discussing the preservation of rights that are forfeitable, rights that are waivable, and absolute requirements and prohibitions), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). We disagree. An appellate court must always review challenges to the sufficiency of the evidence. Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). "A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so." Id.; see also Grayson v. State, 82 S.W.3d 357, 358-59 (Tex. App.-Austin 2001, no pet.) (holding that factual sufficiency claim need not be preserved pursuant to Texas Rules of Appellate Procedure 33.1); Davila v. State, 930 S.W.2d 641, 648 (Tex. App.-El Paso 1996, pet. ref'd) (holding civil factual sufficiency preservation requirements do not apply in criminal context).