SAMMY DEAN JEFFERY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed July 23, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00494-CR
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SAMMY DEAN JEFFERY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F04-59541-IJ
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OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Moseley
        Sammy Dean Jeffery was indicted for the capital murder of William “Earl” Pemberton. A jury convicted him of the lesser included offense of murder and assessed punishment at life imprisonment and a $10,000 fine. Jeffery brings three points of error on appeal arguing the evidence is legally and factually insufficient to support the conviction and the jury's rejection of his self- defense claim, and that the trial court abused its discretion in admitting a prior statement of a witness. We affirm the trial court's judgment.
I. Background
        Jeffery's mother, Phyllis Pemberton (“Phyllis”), was married to Earl, the victim, and they lived together in a house in Dallas. Jeffery was living with his father in Oklahoma, though he had lived with his mother and Earl previously. In December of 2004, Jeffery went to stay with his mother and Earl for the holidays.
        On December 25, 2004, Phyllis, her grandchildren, and Earl went to Paris, Texas to visit relatives; Jeffery stayed behind. Before they left, Jeffery asked to borrow Earl's new truck and Earl said he would talk to Phyllis about it. When the family returned home, Jeffery was waiting for them at the door and again asked Earl to borrow the truck. Earl told Jeffery he was crazy and tried to walk past him, but Jeffery put his hand out to stop him. The two then began wrestling. Phyllis grabbed Jeffery and told him to leave.
        As Jeffery and Phyllis walked up to his room to get his things, they heard Earl grab and open his briefcase, in which he was known to have kept a pistol. Jeffery then retrieved his loaded AK-47 rifle from under his bed, walked down the hallway, and noticed Earl in the bathroom with his pistol pointed toward the ceiling. Phyllis went into her bedroom to call 911, but her phone did not work.
        Jeffery testified that Earl stepped into the living room, cocked the pistol, and pointed it at Jeffery. Jeffery then fired a shot. Jeffery testified this happened several times, until he heard Earl “holler real loud” and Jeffery realized that Earl had been hit. Jeffery testified that Earl then ran and lunged at Jeffery, diving and falling on his knees. Jeffery said Earl picked up the gun and pointed it at Jeffery again, so Jeffery fired another shot. Phyllis testified that Jeffery approached Earl's body and asked, “Is you dead now?” Jeffery then asked his mother where the keys to the truck were and she responded they were in Earl's pocket. Jeffery took the keys from Earl's pocket and left in Earl's truck.
        Phyllis again called 911 and police arrived at the scene. Phyllis was taken to the police department where she later provided a written statement to Detective Kenneth Penrod. Detective K.R. Kreun recovered Earl's .380 pistol at the scene with a six round magazine that did not fit correctly; thus, the gun would not fire. A medical examination revealed Earl had been shot five times.
        Two days later, Earl's relatives spotted Jeffery driving past Phyllis and Earl's house and called 911. After a thirty-five mile chase, the police stopped Jeffery and took him into custody. The police found marijuana in the truck and Jeffery appeared to be extremely high. When asked if he knew why he was being arrested, Jeffery answered, “Weed and capital murder.”
II. Legal and Factual Sufficiency
 
        In his first and second points of error, Jeffery contends the evidence is legally and factually insufficient to support the conviction and the jury's rejection of his self-defense claim.
A. Standard of Review and Applicable Law
        When reviewing the legal sufficiency of the evidence, we consider all the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Further, our review encompasses all the evidence, whether properly or improperly admitted. See Marshall v. State, 201 S.W.3d 618, 625 (Tex. Crim. App. 2006).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence may be factually insufficient if the evidence is “so weak” that the verdict “seems clearly wrong or manifestly unjust,” or the verdict is “against the great weight and preponderance of the evidence.” Watson, 204 S.W.3d at 414-15 & 417; see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A verdict is clearly wrong and manifestly unjust if jury's finding “shocks the conscience” or “clearly demonstrates bias.” Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)). We measure the factual sufficiency of the evidence against a hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 236-40 (Tex. Crim. App. 1997).
        A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The State has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The State's burden of persuasion does not require it to produce evidence refuting the self-defense claim; rather, the burden requires the State to prove its case beyond a reasonable doubt. Id. More importantly, self-defense is an issue of fact to be determined by the jury. Id. at 913-14. A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Id. at 914.
        In reviewing a challenge to the legal and factual sufficiency of the evidence to support a jury's rejection of a defense to prosecution, we use the same standards used in reviewing the sufficiency of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the rejection of the defense. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (factual sufficiency standard); Saxton, 804 S.W.2d at 914 (legal sufficiency standard).
        The State was required to prove beyond a reasonable doubt that Jeffery intentionally and knowingly caused Earl's death with a firearm in an attempt to commit the offense of robbery of the deceased. Tex. Penal Code Ann. § 19.02(b)(1), (3) (Vernon Supp. 2007). As applicable to this case, a person is justified in using deadly force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force, and a reasonable person in the defendant's situation would not have retreated.   See Footnote 1  The force used may not be greater than necessary to repel the violence of an attack. See Hays v. State, 206 S.W. 941, 942 (Tex. Crim. App. 1918).
B. Discussion
        Jeffery claims the evidence is legally and factually insufficient to support his conviction and the jury's rejection of his self-defense claim because the State did not directly controvert Jeffery's testimony that he shot Earl in self-defense. Jeffery argues the evidence demonstrates that Earl became the aggressor when he clicked open his briefcase to retrieve his pistol, cocked it, and pointed it at Jeffery. Jeffery submits that he was in fear that Earl was going to shoot him and there was nowhere for Jeffery to retreat; thus, a rational jury could not have found beyond a reasonable doubt that Jeffery committed all of the elements of the offense.
        However, the record also contains evidence that, upon hearing the “click” of Earl's briefcase opening, Jeffery grabbed his loaded AK-47 rifle and told Phyllis he “ought to shoot his mother- fucking ass.” The record also shows that the magazine in Earl's pistol did not fit properly; therefore, Earl never fired at Jeffery. Additionally, the medical examiner of Earl's body testified that the injuries to Earl's arms rendered them incapacitated, the injury to Earl's heart was rapidly fatal, and the injury to Earl's head was instantly fatal. Penrod testified that a man with Earl's injuries would not have been able to raise his gun in an offensive position. Thus there is evidence that Jeffery fired at Earl after he no longer posed a threat. Moreover, Penrod testified that the fatal shot to Earl's head was fired from less than three feet away, and, after firing the final shot, Jeffery approached Earl and asked, “Is you dead yet?” Additionally, Jeffery admitted in his own testimony that he could have walked out of the house after he entered the kitchen and retreated from the danger altogether; nonetheless, he chose to confront Earl. Finally, when Jeffery was arrested two days later and asked if he knew why, he laughed and said “Weed and capital murder.”
        Having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found Jeffery guilty of the elements of the offense beyond a reasonable doubt, and rejected Jeffery's self-defense claim. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95; see also Saxton, 804 S.W.2d at 914. Further, after reviewing the evidence in a neutral light, we cannot say the evidence supporting the conviction and the jury's rejection of Jeffery's self-defense claim is so obviously weak as to undermine confidence in the factfinder's determination or is greatly outweighed by contrary proof. See Garza, 213 S.W.3d 338 at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414; see also Zuliani, 97 S.W.3d at 595. We overrule Jeffery's first two points of error.
III. Admissibility of Evidence
 
        At trial, the State offered into evidence the signed statement of Phyllis, taken by Penrod when he interviewed her three hours after the murder. Jeffery objected on several grounds, including hearsay. During an extensive hearing outside the jury's presence, Penrod testified that he first spoke to Phyllis at the police station approximately an hour after the murder. Penrod was struck most by Phyllis's fear that her son was still on the loose. Penrod said Phyllis also was “very upset,” and was still under the stress or excitement from her son killing her husband. Penrod left Phyllis at the station for a short time to look at the crime scene again. He returned approximately three hours after the time of the murder and immediately began taking Phyllis's statement. Penrod asked her what happened, and Phyllis told the story, with Penrod only interjecting to ask questions to clarify any unclear details in her statement. The statement was completed in about one and a half hours; Penrod testified that Phyllis remained “very upset” and “very afraid” throughout the entire process.
        At the conclusion of the hearing, Jeffery moved to suppress the statement and the motion was denied. In his third issue, Jeffery contends that the trial court abused its discretion in admitting the statement because the statement was hearsay and not permissible under any hearsay exception. The State counters that the statement is admissible under the excited utterance exception to the hearsay rule.
A. Standard of Review and Applicable Law
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.
        Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). As a general rule, hearsay is inadmissible except as provided by the rules of evidence or by statute. Tex. R. Evid. 802; Garcia v. State, 868 S.W.2d 337, 339 (Tex. Crim. App. 1993).
        An excited utterance constitutes an exception to the hearsay rule. See Tex. R. Evid. 803(2). An excited utterance is a statement relating to a startling event or condition which was made while the declarant was under the stress of excitement caused by the event or condition. See Tex. R. Evid. 803(2). The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Zuliani, 97 S.W.3d at 596 (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). Thus, the court has three concerns in applying the excited utterance exception: (1) that the “exciting event” should be startling enough to evoke a truly spontaneous reaction from the declarant; (2) that the reaction to the startling event should be quick enough to avoid the possibility of fabrication; and (3) that the resulting statement should be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of that statement. McCarty v. State, No. PD-1139-07, slip op. at 7, 2008 WL 2512818 at *3 (Tex. Crim. App. June 25, 2008) (emphasis original).
B. Discussion
        Here, the “exciting event” was Phyllis's son killing her husband, which meets the requisite level of “startling” to evoke a truly spontaneous reaction from Phyllis. See id. Also, Phyllis's statement was directly about the killing; thus, it was sufficiently related to the startling event. See id. Lastly, three hours elapsed between the killing and the time Penrod began taking Phyllis's written statement. However, there is evidence Phyllis was still “very upset and very afraid,” and that her demeanor did not change from the time Penrod first spoke with her an hour after the murder until the time Phyllis signed the affidavit four and a half hours after the murder. Thus, the trial court could have concluded Phyllis was still dominated by fear and other emotions at the time of the statement, indicating the statement was made quickly enough to avoid the possibility of fabrication. See id.; see also Zuliani, 97 S.W.3d at 596. Discerning no abuse of discretion, we overrule Jeffery's third point of error. See Willover, 70 S.W.3d at 845; see also Tex. R. Evid. 803(2)
 
 
IV. Conclusion
 
                Having overruled Jeffery's three issues, we affirm the trial court's judgment.
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
060494f.u05                
 
 
Footnote 1         Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598; Act of May 12, 1995, 74th Leg., R.S., ch. 190, § 1, 1995 Tex. Gen. Laws 1919; Act of May 16, 1995, 74th Leg., R.S., ch.235, § 1, 1995 Tex. Gen. Laws 2141, 2142 (all amended 2007) (current versions at Tex. Pen. Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2007)).