GEORGE WHITE,FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01265-CR
GEORGE WHITE,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER AND WHITTINGTON
OPINION PER CURIAM
JUNE 22, 1989
        George White was found guilty of murder and assessed a life sentence. Appellant claims that the evidence is insufficient to support his conviction. We disagree and affirm the trial court's judgment.
        Walter Davis testified that at approximately 8:00 p.m. on July 25, 1988, he was at a park drinking with friends when he was approached by appellant, who asked him to buy some drinks. Davis declined; appellant then knocked him unconscious. When he awoke, paramedics were attending to his injuries. He testified that he did not threaten appellant in any way. On cross-examination, he said that he did not have a knife with him at the time appellant attacked him.
        Mary Elizabeth Session testified that on July 25, 1988, she, her boyfriend, and Davis were at a park drinking beer bought by Davis when appellant approached them and asked Davis to buy him something to drink. Davis told appellant "he wasn't going to buy him nothing to drink." Appellant and Davis began to argue; appellant then hit Davis with a piece of wood, knocking him unconscious. Appellant then put a knife to Davis' neck. Session and her boyfriend pleaded with appellant not to kill Davis. In the meantime, Lionel Bob, the complainant, approached. Appellant said, "I've killed once. I'll kill again." He then stabbed Bob in the neck. Session said that Bob did not have a weapon in his hand when he was stabbed.
        Ernest Floyd testified that at approximately 8:30 on July 25, 1988, he, Cardell Buchanan, and Bob were outside Cherry's Grocery Store, where Floyd worked, when they heard arguing from the park across the street. He saw appellant arguing with Davis. Appellant then picked up a traffic barricade and hit Davis on the side of the head. Floyd, Buchanan and Bob then ran to where appellant was standing. Bob asked appellant why he had hit Davis; appellant responded that it was none of his business. Bob continued to ask appellant why he had done what he did. Appellant said, "I done killed once, and I'll kill again." He then stabbed Bob in the throat with a knife and ran. Floyd said that he did not at any time see Davis in possession of the knife appellant used. He also said that appellant was the only person who had a knife at the time of the stabbing.
        Appellant testified on his own behalf. He said that on July 25, 1988, he went to the park to drink. When he arrived, he saw Davis stumbling around. He testified that he teased Davis, who became angry with him and pulled out a knife. Appellant said that while trying to keep away from Davis, he noticed the barricade. He stepped over the barricade and raised it to an upright position; Davis ran into it, fell to the ground, and fell asleep. He denied holding a knife to Davis' throat. Appellant said that after Davis was hit, Bob and his two companions approached him. He recognized Bob as someone who had beaten him up on one occasion. Bob asked him why he had beaten up Davis; at this point, appellant noticed the knife in Bob's hand. According to appellant, Bob drew back his hand, and appellant stabbed him.
        In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
        Appellant argues that the evidence is insufficient to show that he had the requisite intent. Intent to kill may be shown by the circumstances surrounding use of the weapon. Lewis v. State, 486 S.W.2d 104, 106 (Tex. Crim. App. 1972). The State's witnesses gave substantially consistent testimony, showing that appellant hit Davis, apparently with no legitimate provocation. When Bob asked him why he had hit Davis, appellant said, "I killed once. I'll kill again", then stabbed Bob. While appellant contested this testimony, it was the province of the jury to resolve the conflict in testimony. We conclude that the evidence was sufficient to establish that appellant intentionally killed Bob.
        In addition, appellant argues that he established self-defense as a matter of law. It is axiomatic that a reviewing court may hold as a matter of law that an appellant killed in self-defense only if the evidence is uncontradicted. Whitfield v. State, 492 S.W.2d 502, 504 (Tex. Crim. App. 1973). While appellant testified that he stabbed Bob only after Bob had prepared to stab him, other witnesses testified that Bob had no knife at the time of the stabbing. As a result, we cannot say that he established self-defense as a matter of law.
        To summarize, the evidence is sufficient to support the verdict of the jury. We overrule appellant's point of error and affirm the trial court's judgment.
                                                          PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01265.F
 
 
File Date[09-06-89]
File Name[881265F]