DERIC C. DURDEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Issued February 21, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00193-CR
............................
DERIC C. DURDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F04-58066-QR
.............................................................
OPINION
Before Chief Justice Thomas and Justices Lang-Miers and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted Deric C. Durden of murder and assessed a twenty-five year sentence. In one issue, appellant complains the evidence is “factually insufficient to demonstrate that appellant did not act in self-defense.” We affirm the trial court's judgment.
BACKGROUND
 
        Appellant and three friends, Brandon Richardson, R.J.,   See Footnote 2  and Alfred Collins, left Club DMX (The Club) around 3:00 a.m. As they were leaving, appellant overheard his cousin, Randy Ransome,   See Footnote 3  and Richardson arguing with some men in the parking lot. Appellant became a part of the group involved in the encounter. Eventually, everyone left the scene. But, when appellant met up with the deceased later that night, appellant shot and killed the deceased.
THE EVIDENCE
1. Jason Scoggins
 
        Scoggins, a Dallas Police Patrol Officer,   See Footnote 4  testified that he received a “cover call” a little after 3 a.m. that took him to the Fina station across the street from the Jack-in-the-Box off Northwest Highway. By the time he got to the Fina, the crowd had moved onto the Jack-in-the-Box parking lot. He heard gunshots coming from the Jack-in-the-Box parking lot, saw everyone start running, and saw a Tahoe with its headlights off leaving the parking lot. Lots of people ran, but only the Tahoe left the parking lot in a hurry. Scoggins ran to his squad car   See Footnote 5  to follow the Tahoe because he thought “he might have a gun.” Just then a Chevrolet Caprice rear-ended the Tahoe.
        Scoggins and his partner quickly stopped the Tahoe, and the Caprice ended up behind the police car. When Scoggins approached the Tahoe, he discovered bullet holes in the passenger side of the Tahoe and a wounded passenger. Scoggins called for an ambulance and back-up. As others began gathering at the scene, the officers separated the groups and took them to police headquarters.
 
2. Jeffrey Lobe
 
        Lobe, a Dallas Police Patrol Officer, received a call to cover a “felony traffic stop” on Northwest Highway. When he arrived, another officer directed him to go to the Jack-in-the-Box parking lot where the “crime occurred.” By the time he arrived at the Jack-in-the-Box, only employees were there. Lobe found bullet casings and secured the scene until the Physical Evidence Section (PES) arrived.
3. Junius Rucker
 
        Rucker, a Dallas Police PES officer, testified he first responded to the Jack-in-the-Box, where he photographed the evidence and collected the spent shell casings. He then went to the second location. There he saw the brown Tahoe, engine running, lights on, and bullet holes in the front passenger door. He searched the Tahoe. When Rucker moved some large, heavy speakers from behind the third row seat, he found a 12 gauge pump shotgun underneath the seat, but no ammunition or casings. When he processed the shotgun, he found no fingerprints. He opined that no one in the Tahoe could have gotten to the shotgun or replaced it underneath the seat in the length of time it took to get from the Jack-in-the-Box to where the police stopped the Tahoe.
4. Dan Wojick
 
        Wojick, a Dallas Police PES officer, testified he went to the pound to process two vehicles involved in a homicide-a Tahoe and a green Ford Taurus.   See Footnote 6  He processed the Tahoe for fingerprints, none of which matched appellant. He removed three fired bullets from the Tahoe's passenger door and sent them to the Southwest Institute for Forensic Sciences (SWIFS) for comparison with any recovered weapons. He processed the Taurus for fingerprints and DNA evidence in the rear seat but found nothing tied to appellant.
 
5. Ashli Cook
 
        Cook testified that she and a girlfriend, Alma, were at The Club on the night of the shooting. As they left The Club at closing, they saw some “fighting and yelling” but they did not recognize any of the people involved. They drove to the Fina to get tacos. Because the Fina's drive-thru lane was closed, they went across the street to the Jack-in-the-Box.
        They waited in the Jack-in-the-Box's drive-thru lane for about twenty minutes. While they were waiting, a green Ford Taurus pulled up next to them. Two people were in the front seat and appellant was in the back seat. Appellant got out of the back passenger door and walked in front of Cook's vehicle's headlights. A few seconds later, she heard five or six gunshots. She ducked, and when she looked up, she saw appellant walk back with a silver gun in his hand. He tried, but could not open the Taurus's back passenger seat door. Appellant then walked around and got in the back seat behind the driver. Cook kept repeating the Taurus's license plate number until she could find a pen and write it down.
6. Courtney McClelland
 
        McClelland testified that on the night in question, she, her brother Samuel, and her cousin, Tanisha Millage, went to The Club. After they left The Club, they went to the Fina. It was crowded with people from The Club. When the police arrived to break up the crowd, everyone went to the Jack-in-the-Box. She was in the drive-thru lane and had just placed her order when she saw appellant get out of a green Ford Taurus and walk in front of her car. He waited behind the ordering booths at the Jack-in-the-Box. Next, she heard loud music coming from a Tahoe that was going towards the parking lot. The deceased was in the front passenger seat of the Tahoe.
        McCelland saw appellant move forward, “retrieve” a gun, and shoot five or six times into the Tahoe. After he shot, he knelt down and attempted to “cock” the gun. After “messing” with the gun, he walked in front of her car and got in the Taurus. The Taurus left the parking lot and headed toward Northwest Highway. Millage telephoned the police.
        McClelland left the Jack-in-the-Box and turned onto Northwest Highway. When she saw the Tahoe stopped, she stopped her car and told the police that they had seen the shooting. The police took them to the police station.
        On cross-examination, she admitted that at the time of the shooting, she could not see if anyone in the Tahoe had a gun. She also admitted she had not been able to pick appellant out of a photo line up a few weeks after the shooting.   See Footnote 7  Although she had been at The Club, she never saw anyone fighting or arguing.
7. Christopher Davis
 
        Davis testified that he and Osteen   See Footnote 8  went to The Club. When The Club closed, they went to the Fina, but it was “too packed” and they ended up at the Jack-in-the-Box. They parked their green Ford Taurus close to the exit, next to the drive-thru, in case the police came. A few minutes after they parked, appellant came up to their vehicle and got in the back seat. Davis was talking on the telephone with Wanisha Bradford, who was also in the Jack-in-the-Box parking lot. Appellant told them that “those Dalworth niggers, who jumped [Ransome], are about to roll through here.” Next, appellant asked Osteen for a gun. Appellant pulled up the back seat, reached under it, pulled out a silver gun with a black handle, got out of the car, and walked through the drive-thru. Within 30 to 45 seconds, Davis heard the shots and he locked the rear passenger door to avoid anyone jumping
into their vehicle during the shooting. Appellant ran to their vehicle with the gun in his hand, trying to “unjam” it. Osteen unlocked the doors so appellant could get in the Taurus. Appellant said that he thought he had hit the Tahoe's door. Osteen thought appellant had hit the Tahoe's window. Appellant never said anything to them about seeing a shotgun. They later dropped appellant off at the IHOP.
        A few weeks after the shooting, Davis and a friend were at another club when he saw appellant. Appellant approached Davis and he said, “if he gets some time, everybody is going to get some time.”
8. Lapaul Polk
 
        Polk, Irish Anthony, and the deceased went to The Club in Polk's Tahoe where they met Remondo Hill and Cleveland Wilson. Hill and Wilson were in Hill's Chevy Caprice. Polk and the deceased were together when The Club “let out.” Everyone left The Club and went to the Fina and then to the Jack-in-the-Box. While at The Club, Polk did not see any fights and neither he nor the deceased fought with anyone at The Club or in the parking lot, had words with anyone, or “jumped” Ransome. Actually, Polk never saw Ransome or appellant at The Club and could not identify appellant as the one who shot at the Tahoe.
        When Polk decided to leave the Jack-in-the-Box, he drove around by the liquor store to tell Hill and Wilson they were leaving. The Tahoe's windows were down because they were playing their music loudly. When they got close to the drive-thru, he heard three shots. Polk ducked down and tried to drive off. He was not able to “race out” because of the people in the parking lot. He hit someone in front of him and Hill and Wilson hit him from behind. As he turned onto Northwest Highway, he realized the deceased had been shot. As Polk made a right turn into another parking lot, Hill and Wilson ran into him again. The police came immediately and took him downtown.
        Polk testified that although he did not live in Dalworth, he lived about fifteen minutes from that area. He and the deceased were best friends. When Polk visited his father in Centerville, they hunted. He had just returned to Arlington from Centerville on the night in question and had not removed his shotgun or his bag from his Tahoe before leaving for The Club. Because he had used all his ammunition hunting, no shells were in the Tahoe. He kept the shotgun behind the speakers and the seat. Neither Anthony nor the deceased knew he had a shotgun in his vehicle. Even if they had known, none of the three could have reached the shotgun from the front seats. To reach the shotgun, you had to open the back of the truck. And he had “a sliding thing that covered up everything” that you would have to remove before you could get to the shotgun. Additionally, Polk had three headrest televisions and one television on the radio in his Tahoe. All of the televisions were turned on and they illuminated the interior of his vehicle.
8. Cleveland Wilson
 
        Wilson testified he lived and worked in Arlington. He never lived in Dalworth nor did he know anyone who did. On the night in question, he met up with Hill, Anthony, Lapaul, and the deceased in Arlington and they all went to The Club in the Chevy Caprice. Wilson never saw appellant at The Club or anywhere else before he saw him in court. Although he did not see any fights, there was some type of disturbance in another parking lot, not in front of The Club.
        They had valet parked and when they got ready to leave, Hill went to find Anthony. Wilson and Hill pulled around to the front of the parking lot across from The Club to wait for Lapaul. Lapaul saw them, pulled up, and got out of the Tahoe. Wilson confirmed that he, Hill, Anthony, Lapaul, and the deceased went to the Fina and then to the Jack-in-the-Box to eat.
        At the Jack-in-the-Box, there was a “slow trickle” of cars and the drive-thru line was really long. To turn around to leave, Hill drove to the liquor store and then back toward the same entrance where they had entered the Jack-in-the-Box to get to Northwest Highway. That route took them back through the Jack-in-the-Box parking lot. His Caprice was directly behind the Tahoe. He heard three gunshots and ducked down. When he came back up, he saw the gun and the person firing the gun. The shooter looked about 20 to 25 and was about the same height as the handicap sign. He described the shooter's clothing, but he could remember nothing about the shooter's hair. Because of the way the shooter had his gun turned, it looked as if either he had run out of bullets or the gun had malfunctioned. The shooter ran back through the drive-thru and disappeared. Wilson did not know that the shots had hit the Tahoe. No one in the Caprice had a gun and Wilson never saw anyone waiving a shotgun from the Tahoe.
        Everybody was in a panic and trying to get out of the parking lot. As Wilson left the parking lot, he turned onto Northwest Highway behind the Tahoe. He followed the Tahoe when it turned off of Northwest Highway. When he saw lights behind them, he thought the shooter might be following them so they drove about another mile or so until they saw no more lights.
        On cross-examination, Wilson confirmed he had three different collisions as he left the Jack- in-the-Box. He did not see the bullet holes in the Tahoe until the final collision. He admitted the statement he gave the police the following morning did not contain anything about the gun's color or its jamming.
9. John Palmer
 
        Palmer, a Dallas Police Department Homicide Detective, seized the “suspect vehicle” that led to Osteen. His interview with Osteen led him to appellant. He put together a photographic line- up and showed it to Davis, Cook, and Martinez. He met with a person who either knew or was related to Osteen at a truck stop. That person gave Palmer the murder weapon and magazine for that weapon in a Jack-in-the-Box paper bag a few days after the shooting.
10. David Spence
 
        Spence, the supervisor of the Trace Evidence Section at SWIFS, reviewed the primary gunshot residue kits taken from Anthony, Wilson, Dante, Polk, and the deceased. The testing revealed no traces of gunshot residue. On cross-examination, Walker acknowledged that pointing a firearm would not necessarily leave any residue.
11. Charles Clow
 
        Clow, a firearm and tool mark examiner for SWIFS, testified the police submitted a .380 caliber pistol, two magazines for that pistol, a Jack-in-the-Box paper bag, and four Winchester brand .380 auto caliber cartridge cases for testing. A test-firing of the pistol showed the bullets found at the scene were fired from the submitted pistol.
12. Janice Townsend Parchment
 
        Parchment, a forensic pathologist employed as a Dallas County Medial Examiner, testified that she performed the autopsy on the deceased. The bullet that killed the deceased entered his body on the right side of his back and “traveled right to left, slightly back to front, and very slightly upward” and went through his left lung, heart, and right lung. The range could not be determined because the bullet went through something before it hit the body. The deceased's autopsy showed a 0.13 percent ethanol level.
13. Randy Ransome
 
        Appellant called Ransome as his first witness. Ransome testified that appellant is his first cousin. He and Charleston   See Footnote 9  had gone to The Club. As they left, some drunk “dude,” whom he later identified as the deceased, was mouthing off. The guy was about 6'1" and with another tall guy. They had words. He could not remember what was said, but the deceased was “talking trash.” As they were “getting into it,” the deceased went to a “tan [S]uburban” and got a gun from under the front passenger seat and stuck it in his waistband. Richardson said, “put the gun up, lets fight.” Then appellant came up. Ransome and appellant wanted to leave, but Richardson wanted to fight. Ransome and Charleston left and went to the Fina where they stayed a short time and left. They did not go to the Jack-in-the-Box.
        On cross, Ransome testified he could not tell the difference between a Suburban and a Tahoe. Additionally, he maintained the deceased put the gun in his pants, he could see only the gun's handle, and the handle was black. He never saw the whole gun because the deceased was sitting in the Suburban. Ransome testified that Collins was in The Club's parking lot with appellant, but denied that Collins ever brought appellant over to his house. Although he saw appellant “a whole bunch of times” after his arrest, he denied he ever talked to appellant about the shooting. Ransome confirmed that appellant cut his hair in the eight days between the shooting and his arrest.
14. Brandon Richardson
 
        Richardson testified he and R.J. went to The Club on the night in question. While at The Club, Richardson and appellant were away from everyone else. Consequently, he “couldn't tell if anything happen[ed] while they were in [T]he [C]lub.” In The Club's parking lot, the deceased was “mouthing off” about everybody and Texas. Richardson admitted he said “lets go one on one.” Instead, the deceased went to the back of the “Tahoe or whatever it was,” opened the back, picked up the gun, put it in his pants, and walked over to the driver's side of the Tahoe. Appellant walked by the driver's side of the Tahoe. Then, appellant told everybody they had to leave because “they have a gun.”
        At the Jack-in-the-Box, Richardson saw the Tahoe, the Caprice, and either a Lincoln or Cadillac drive up. The person sitting on the passenger side of the Tahoe gave Richardson “a glimpse of the gun” as they “rolled [by] in a line” and drove toward the liquor store. Another person was in the back seat of the Tahoe. All three cars got in a line and turned around. He saw appellant going “back toward [Osteen]'s” vehicle and they “barricaded him in.” Then he saw appellant turn around and shoot three times. The gun either jammed or he ran out of bullets.         On cross, Richardson admitted he and appellant were good friends, they had talked immediately after the shooting and after the police arrested appellant, and appellant had telephoned him from jail. He neither saw any disturbance in The Club's parking lot as he and the appellant were leaving nor saw the deceased get out of the Tahoe. Rather, the deceased was walking behind “us” when he started “mouthing off.” The deceased opened the back of the Tahoe and got a handgun.
        According to Richardson, appellant and Davis came to the Jack-in-the-Box with Osteen. Richardson sat on the hood of “their” vehicle   See Footnote 10  the entire time and could see everything. He never lost sight of appellant. Appellant never walked through the drive-thru. He never saw appellant get a gun but, as appellant was returning to Osteen's vehicle to leave, he saw the Tahoe stop and say something to appellant. Next, appellant shot, his gun jammed, and he ran to Osteen's vehicle. He opined that appellant ran because his gun jammed and someone in the other two vehicles could have shot appellant. The only time he saw appellant going toward Osteen's vehicle was after appellant shot at the Tahoe. Richardson confirmed he told Ms. Dodds   See Footnote 11  that he did not “see them pointing any gun[s].” And he testified he did not see any guns when the shooting took place. He “just knew” they had guns.
        After the shooting, appellant met up with “them” at the IHOP. Richardson named only himself and Alfred Collins as being at the IHOP. While there, Richardson asked appellant, “why you do it.” Appellant replied that he did not know.
15. Appellant
 
        Appellant drove Richardson, R.J., and Collins to The Club in R.J.'s Lincoln Town Car. As appellant left The Club and walked through the parking lot, he heard an argument behind him. He recognized R.J.'s and Ransome's voices and turned back. Two guys were standing outside the Tahoe. He recognized Polk as the one standing outside the driver's door and “actually [saw] the handle of the gun” in the person's pants standing outside the passenger's door. But, he “knew” Polk's shirt had covered his gun.
        Appellant and some friends left The Club and went to Compass Bank next to the Fina. From the bank, they could look down on the Fina parking lot and see everything going on at the Fina. After ten or fifteen minutes, they left the bank to get a good parking place at the Jack-in-the-Box. As soon as they got to the Jack-in-the-Box, appellant went to Osteen's vehicle to finish a conversation they had started earlier. When appellant saw the Tahoe and the Caprice pull into the Jack-in-the-Box's back parking lot, appellant asked Osteen to drive him back to R.J.'s vehicle. Osteen refused, which really shook appellant. But, Osteen told appellant that he could take Osteen's gun to walk over to R.J.'s vehicle. Appellant did not want to take the gun, but he “fear[ed] for his life.” As he walked toward R.J.'s vehicle, the Tahoe and Caprice cut him off. The Tahoe's passenger window was down and the passenger “raised up a gun at me,” so “I turned and shot.” Because appellant and Ransome both had braids and the same type clothing, appellant thought the passenger might have mistaken him for Ransome.
        On cross, the State questioned appellant about comments he made while watching the news with Collins on the night of the shooting. Appellant denied he watched the news the night of the shooting. Rather, it was two days later when he and Collins watched the news. Appellant said to Collins, “this is big,” not “man, now I made it big time.”
        Appellant testified that he did not intend to kill anyone. He just closed his eyes and shot. He maintained that since the shooting, he could not sleep at night and does not “hang out with these guys anymore” because “[t]hey got me into this situation.” The State, however, questioned appellant about his “clubbing” and “hanging” out with his friends. Appellant agreed he had been back to The Club and Club Blue, but maintained he did not “go to [T]he Club any more.” He saw Ransome, Richardson, and Collins only now and then and had no idea where R.J. was now. Appellant rested, and the State recalled Officer Scoggins in rebuttal.
16. Scoggins
 
        Scoggins testified the Jack-in-the-Box's parking lot was full. He was standing at the east entrance to the Fina parking lot when he heard the shots. He immediately turned in the direction from which the shots came-the Jack-in-the-Box parking lot. The Tahoe left the parking lot about ten seconds after Scoggins heard the shots and turned east on Northwest Highway. Because he thought the shooter could be in the Tahoe, he ran to his squad car. His partner drove the squad car as they followed the Tahoe. At one point, their squad car cut between the Tahoe and the Caprice. He never lost sight of the Tahoe from the time he heard the shots until he stopped it. At no time did he see anyone throw anything out of the Tahoe. When he stopped the Tahoe, everyone jumped out of the Tahoe and ran to them for help.
        On cross, Scoggins admitted he could not see everyone in the Jack-in-the-Box parking lot but, from where he was standing, the lot looked full. When asked if he saw the Caprice hit the Tahoe, Scoggins said he saw the Caprice collide with the Tahoe in the Jack-in-the-Box parking lot, but not on Northwest Highway. As far as Scoggins knew, no one searched Northwest Highway because he never told anybody he saw anything thrown from the Tahoe. And no one in the Tahoe had enough time from the time Scoggins heard the shots to get out of the Tahoe, give any weapons to anyone in the Caprice, get back into the Tahoe, have an accident with the Caprice, and drive onto Northwest Highway.
SUFFICIENCY OF THE EVIDENCE
 
Appellant argues the State's evidence was either “too weak [to] find appellant guilty and/or the contrary evidence was so strong that [no rational jury could] have found [a]ppellant guilty beyond a reasonable doubt.” Specifically, he maintains the relevant facts are “virtually undisputed” and “clearly demonstrate” that appellant acted in self defense.
The State responds the evidence refutes appellant's claim of self defense. It argues “unbiased” witnesses' testimony and conflicts in appellant's own testimony proved beyond a reasonable doubt that appellant murdered the deceased.
1. Standard of Review
 
In reviewing the factual sufficiency of evidence to support a verdict, we answer only one question-“[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt.” Zuniga v. State, 144 S.W.3d 477. (Tex. Crim. App. 2004).   See Footnote 12  We determine the factual sufficiency of evidence by (1) considering if the evidence, although legally sufficient to support the verdict, is “'so weak' that the jury's verdict seems 'clearly wrong and manifestly unjust'” and (2) asking whether “considering conflicting evidence, the jury's verdict, though legally sufficient,” is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). In doing so, we must consider the evidence appellant contends most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2000). In conducting a factually sufficient review, we must not “substantially intrude upon” the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson, 23 S.W.3d at 7; see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). This Court cannot conclude a conviction is “clearly wrong”or “manifestly unjust” simply because we would have voted to acquit. Watson , 204 S.W.3d at 417. We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003)
This Court blended the holdings of Clewis v. State, 922 S.W.2d 126, 128-29 (Tex. Crim. App. 1996 ) and Saxon v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) in deciding whether the implied finding against the self-defense issue was so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Reaves v. State, 970 S.W.2d 111, 115-16 (Tex. App.-Dallas 1998, no pet.). In doing so, we held an appellate court must review all the evidence probative of the defendant's guilt and all the evidence probative of the defendant's self-defense issue and decide if (1) the finding of guilt beyond a reasonable doubt and (2) the implied finding against the self defense issue beyond a reasonable doubt, were so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 116. Our Court of Criminal Appeals modified this Court's holding in Reaves when it held that in reviewing a challenge to the factual sufficiency of the jury's rejecting a defense under section 2.03 of the Texas Penal Code, the reviewing court must review all of the evidence in a neutral light and determine whether the State's evidence is (1) too weak to support the finding of guilt and (2) the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Johnson, 23 S.W.3d at 11).
2. Applicable Law
 
A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). However, a person is justified in using deadly force against another if he is justified in using force under section 9.31, and if a reasonable person in the actor's situation would not have retreated, when and to the degree “the reasonable person would not have retreated” and when and to the degree “he reasonably believes” the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon 2003). Texas recognizes the general defense of justification and places the burden on the defendant to produce some evidence to raise the defense. Tex. Pen. Code Ann. § 2.03 (Vernon 2003). The State, however, has the ultimate burden of persuasion when confronting a section 2.03 defense. Saxton, 804 S.W.2d at 913-14. Justification is a section 2.03 defense. See Miller v. State, 177 S.W.3d 177, 183 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd).
When a defendant raises the issue of self-defense, the State has the burden to prove the elements of the offense beyond a reasonable doubt and to persuade the jury that the defendant did not act in self-defense. Zuliani, 97 S.W.3d at 594-595 (citing Saxton, 804 S.W.2d at 913). Only the jury decides whether to reject or accept a properly raised defensive theory. Sparks v. State, 177 S.W.3d 127, 131 (Tex. App.-Houston [1st Dist.] 2005, no pet.). A jury's finding of guilt implies a finding against the defensive theory. Zuliani, 97 S.W.3d at 594.
3. Application of Law to the Facts
 
It is uncontested that appellant shot and killed the deceased. Appellant refers to the legal sufficiency of the evidence in one statement when he questions whether the evidence is factually sufficient to show he did not act in self-defense. That statement is as follows, “The evidence was too weak the [sic] find appellant guilty, and/or the contrary evidence was so strong that a rational jury could not have found appellant guilty beyond a reasonable doubt.” After reviewing all the evidence in the light most favorable to the jury's finding of guilt, we conclude the evidence substantiates appellant's guilt beyond a reasonable doubt. We now turn to the evidence appellant claims supports his contention the evidence is factually insufficient to support the jury's rejection of self-defense.
Appellant's brief summarizes all of the witnesses' testimony, but he looks only to his testimony in his analysis because he argues only his perception of danger controls our decision. He contends the deceased “displayed” a gun, was drunk, and started an altercation at The Club.
Appellant admitted that during the altercation at The Club, he never saw a gun on the person standing outside the Tahoe's driver's door. But, he “knew” that man had a gun under his shirt. Appellant testified that he saw a gun on the person standing outside the Tahoe's passenger door, but never identified the man standing outside the passenger door as the deceased.
Richardson and Ransome both testified they saw the deceased with a gun at The Club. Richardson explained the deceased got the gun from the back of the Tahoe and walked over to the driver's side of the Tahoe, while Ransome testified the deceased pulled a gun from underneath the front passenger seat.
Only appellant and Richardson testified that anyone in the Tahoe had a gun at the Jack-in-the- Box. Appellant testified he saw the deceased point a gun at him at the Jack-in-the-Box, and Richardson testified the deceased “gave him a glimpse of a gun” when the Tahoe drove through the Jack-in-the-Box parking lot on the way to the liquor store. On cross, however, Richardson admitted he did not see any guns when the shooting took place, he “just knew” they had guns.
Richardson testified appellant drove to the Jack-in-the-Box with Osteen. But, appellant insisted he went to the Jack-in-the-Box with friends and walked over to Osteen's vehicle to continue a conversation with Osteen. Davis confirmed appellant came over to Osteen's vehicle after they had parked at the Jack-in-the-Box. Appellant argues he could not retreat because he was in Osteen's vehicle when he saw the Tahoe pull into the Jack-in-the-Box. Because Osteen refused to drive him back to “his” vehicle, he was “left alone and in the open to walk” back to his vehicle. Appellant claims that although Osteen offered appellant a gun, he did not want to take it, but “he feared for his life.” Only when Osteen refused to drive him back to his vehicle did he take the offered gun. When the Tahoe cut him off, he was unable to retreat. It was then the passenger pointed a gun at appellant, so he turned and shot.
In contrast, Davis, who was in the front seat of Osteen's vehicle and had no apparent motive to shade the truth, testified appellant announced the Tahoe with those who jumped Ransome was about “to roll through” the parking lot. Davis saw appellant take a gun from under the back seat, load that gun, and get out of the Taurus.
Richardson testified he was sitting on the hood of Osteen's vehicle and never lost sight of appellant and appellant never walked through the drive-thru at the Jack-in-the-Box. However, other witnesses, who had no apparent motive to shade the truth, contradicted Richardson's observation claim. Cook, while waiting in the Jack-in-the-Box drive-thru line, saw a green Taurus pull up next to their vehicle. Appellant was in the back seat of the Taurus. He got out and walked past Cook's vehicle. Seconds later, Cook heard gunshots and appellant walked back past her car and got into the Taurus and left.
McClelland was in the drive-thru lane when she saw appellant get out of the green Taurus, walk in front of her vehicle, and wait behind the ordering booths. She heard loud music coming from the Tahoe. Appellant moved out from behind the building and shot five or six times into the Tahoe. He then knelt down and attempted to cock his gun. Next, he walked past her car and got in the Taurus.
Shortly after the shooting, Richardson ran into appellant at the IHOP. Richardson asked appellant why “he did it”and appellant claimed he did not know why he did it. It was within the jury's province to resolve the disputed versions of the events in question by choosing between them.
Considering all the evidence in a neutral light, measuring it against the charge, and giving due deference to the jury's role, we cannot say the finding of guilt beyond a reasonable doubt, and the implied finding against the self defense issue is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. We conclude the State's evidence taken alone is neither too weak to support the jury's finding nor is the proof of guilt, although adequate if taken alone, against the great weight and preponderance of the evidence. The evidence was factually sufficient to support the jury's implied finding against appellant's claim of self-defense. We decide appellant's sole issue against him.
We affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Only Richardson testified about R.J. and Richardson did not know him by any other name.
Footnote 3 In testimony, he is sometimes referred to as Ray Ray.
Footnote 4 This opinion refers to all police officers and investigators in the capacity they held on the date of the instant offense.
Footnote 5 His partner had remained in the squad car and had already began to follow the Tahoe.
Footnote 6 Later testimony revealed that Christopher Davis and Etron Osteen arrived at The Club and the Jack-in-the Box in the green Ford Taurus and appellant had retrieved a gun from underneath the Taurus's back seat.
Footnote 7 Later testimony, including appellant's testimony, showed that shortly after the shooting, appellant had “his hair cut.” Before cutting his hair, he wore braids.
                                
Footnote 8 In testimony, he is sometimes referred to as “Tron.”
Footnote 9 Ransome only identified Charleston as his “homeboy” and no witness named Charleston testified.
Footnote 10 Although Richardson did not identify in whose vehicle he and R.J. went to The Club or to the Jack-in-the-Box, we presume that when he referred to “their vehicle,” he means the vehicle in which he and R.J. traveled.
Footnote 11 We infer from previous testimony that Ms. Dodds is an “assistant” in the prosecutor's office.
Footnote 12 The Watson court disavowed Zuniga “to the extent” that it allowed an appellate court “to overturn a jury verdict and remand for new trial when the greater weight and preponderance of the evidence actually favors conviction.” Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).