CARY JAMES WILCOX, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 1, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01710-CR
............................
CARY JAMES WILCOX, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-80588-04
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Lang-Miers
        Appellant was convicted of aggravated assault with a deadly weapon and sentenced to forty years in prison. In three issues, he challenges the sufficiency of the evidence and the trial court's decision to admit evidence of extraneous offenses to rebut appellant's claim of self-defense. We overrule appellant's issues and affirm the trial court's judgment.
 
Factual Background
 
        It is undisputed that appellant stabbed a man named Maurice Leahy outside the Bent Tree Grill in Dallas. But there is conflicting evidence about the events immediately preceding the stabbing and whether appellant stabbed Leahy in self-defense.         Leahy testified that he arrived at the Bent Tree Grill, ordered a cup of coffee, then realized he left his cell phone in the car and went to get it. As he walked out, he thought the person in front of him was his friend and realtor, Cathy, so after they exited he “jokingly” said “hey, Cathy, you are leaving early this evening.” When the woman turned around, Leahy “realized, straight away, it wasn't Cathy” and started to walk away. The woman stepped back and fell over the curb behind her. Leahy testified that he leaned over to help the woman up when he was approached from behind by appellant, who said something “threatening” to Leahy. Leahy said “who are you talking to” and appellant “responded really aggressively.” Appellant grabbed Leahy. Leahy tried to push appellant away, but appellant continued hitting Leahy. Leahy “couldn't understand what was wrong with this person.” Leahy knocked appellant off balance and appellant ran away. Leahy was shocked and had trouble catching his breath. He tried to go back inside, but when he opened the front door, a waitress screamed at him to go back outside. He looked down and realized he was bleeding profusely. He had been stabbed in the face, back, and stomach.
        Leahy had “never seen or met” appellant before this incident. Leahy had two beers earlier in the evening at another location and ordered coffee at the Bent Tree Grill. He was 50 years old and weighed approximately 150 pounds at the time. During Leahy's cross-examination, appellant's counsel asked him, “[W]hat you are saying is just somewhat out of the blue, a person that you had never had any dealings with, knew nothing about, came up to you and just started stabbing you? That's what you're telling the jury happened that night?” Leahy responded, “Exactly what I said; that's how it happened.” Appellant's counsel asked, “You did nothing at all to precipitate anything that was going on?” and Leahy responded, “Absolutely I didn't.” Leahy's ex-wife testified that Leahy is “a very docile person” and that in the fourteen years they were married, she never saw him intoxicated.         Tim Menchu, a criminal defense attorney, testified that appellant called and hired him after the stabbing. Menchu identified State's exhibit 21 as a written statement that appellant sent
Menchu. Menchu testified that he gave appellant's written statement to the detective investigating the stabbing because Menchu “was hoping the case wouldn't even be filed.” Appellant's written statement, addressed to Menchu, reads as follows:
 
Re: Incident @ Bent Tree Grill, 18110 Midway Rd. on 8.27.03 (Thur) @ about 1.15-1.45 am.
 
 
 
Jodie Shafer (JS) (personal friend and co-employee) received a phone call from Laura Luna (co-employee) between 12.00-12.45 am asking for help (drunk, perhaps-troubled, yes).
 
 
 
Tim, I realize that nothing good typically happens between 12am-5am however JS says, “I've got to either go to Bent Tree Grill and see that she (Laura) is ok or get her a ride to her house (Carrollton) if, intoxicated.” We arrive after 1.00 am and I'm greeted by Linda (waitress) and asked if I would like anything to drink and I reply no thank you and view Jodie speaking with Laura and the piano bar. I sense everything will be handled[,] am very tired, and go outside to sit upon a planter between the pillars.
 
 
 
A few moments later I notice (JS) exit the front door and head to the parking lot followed by an individual I have not seen before. He asks her (probably drunk) “Where are you going?” [“]You can't leave now![”] I sense (JS) can handle herself and she will convince this guy to go back inside.
 
 
 
The next words I hear are, “Get off of me (JS)!” And I remember him referring to her as a female dog (bitch). I stride quickly and see her on one knee getting up and say to him, “If you have a problem with her you have a problem with me!” I am very tired and have been up since 4.20 am that am and just want to go home. He replies, “You don't know who I am[”] and starts to tell me what's gonna happen to me all the time reiterating, “I don't know who he is[”] and he's attempting to convince me that he's some “made [sic] guy” and now I'm worried/scared because I don't know who he is. I back pedal and suggest he go back inside, it has been a long night (perhaps) and we were just leaving. I sense that he took my gesture for weakness and just started coming at me full force. I am very tired and confused as I feel the energy of a man way more than his size suggests. Alcohol or whatever might have been in his system has now got me back pedaling again. JS trys [sic] to break us up and begs for us to separate. I back pedal again and he turns and pushes her to the ground. I get in his space and he hits me in the neck (right side) and I grab him with my left arm (neck) and keep/attempt to keep him at arms length. His left hand grabs and claws at my neck (right side). I beg him to stop he keeps coming I feel a couple of kicks to my left knee and shins. I remove my pocket knife/letter opener and thrust two times (2x) at his left shoulder to thwart him and he still keeps coming harder! I get him to stop (a couple more times[)] (I think) to his ribs and he stops and staggers. He is bleeding profusely and I'm in dissarry [sic]. Jodie is screaming and I know that, if I stay around-I will go to jail for something I never wanted to happen and in self defense. I leave quickly, go to my apartment and call you Tim @ or about 2.45 am. Tim this is what I recall and believe as it happened.
 
 
 
[/s/] Cary Wilcox 9.02.03 @ 14.45 hours
 
After this statement was introduced into evidence and read to the jury, the State rested. Appellant's counsel made an opening statement and told the jury that appellant's written statement is evidence of self-defense and “is basically evidence of what Mr. Wilcox'[s] story is.”
        Jodie Shaffer testified in appellant's defense. Shaffer explained that she and appellant were coworkers and friends. On the night of the assault, Shaffer planned to attend a party at her boss's wife's home, but she decided not to attend and instead “went and visited with [appellant]” at the Budget Suites where “he rented by the week.” Shaffer got a call from her coworker, Laura, who had been drinking and “was upset; crying, as a matter of fact.” Shaffer decided to go to the Bent Tree Grill to “make sure that [Laura] got home safely and check on her.” Appellant rode with Shaffer. When they arrived at the Bent Tree Grill, appellant went inside briefly, then went back outside to wait for Shaffer. Shaffer went inside and talked with Laura. Shaffer realized she had left her cigarettes and cell phone in her car and left to retrieve them. She opened the passenger side door of her car and Leahy approached her. “He said, 'hey, you can't leave yet'; just like that.” Shaffer replied that she was not leaving and was only getting a pack of cigarettes. Shaffer testified that Leahy walked up to Shaffer and grabbed her arm. Shaffer pulled away from Leahy and tripped and fell backwards. Leahy leaned down to help Shaffer up. Shaffer “was kind of upset then” and asked Leahy to leave her alone, “loudly.” Appellant approached “and said, if you are messing with her, you are messing with me; or pretty close to that.” Leahy “turned around and got very aggressive towards [appellant] and more or less just grabbed him.” Shaffer testified that Leahy said “you don't know who I am” and “I've got people.” Shaffer saw Leahy grab appellant by the throat, but when she tried to pull them apart, she “got shoved backwards.” When she got up, “[appellant] was gone” and Leahy was bleeding.
        Appellant did not testify in his defense. Other witnesses testified for the State and for appellant, but none of those witnesses saw the assault.
        Appellant filed a motion for new trial, which was overruled by operation of law. Appellant timely filed his notice of appeal.
 
Sufficiency of the Evidence to Support Jury's Rejection of Self-Defense Claim
 
        In his first and second issues, appellant argues that the evidence was legally and factually insufficient to support the verdict. Appellant admits that he stabbed Leahy repeatedly and does not argue that the State failed to prove the elements of aggravated assault with a deadly weapon. Instead, he argues that the evidence is insufficient to support the jury's decision to reject his claim of self-defense.
A.
 
Standard of Review
 
        When a defendant challenges the legal sufficiency of the evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
        When a defendant challenges the factual sufficiency of the evidence to support the rejection of a defense, we review all of the evidence in a neutral light to determine whether the State's evidence taken alone is too weak to support the rejection of the defense and whether 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).
B.
 
Analysis
 
        Appellant generally argues that he tried to protect Shaffer from “what he thought was his friend's imminent danger from a male stranger.” Additionally, he argues that Leahy admitted “turning and advancing upon [appellant] and having words with him.” Appellant also argues that after the fight started, he was losing until he “was able to pull out his small pocket knife/letter opener and used it to finally end the altercation.” Next, appellant argues that he did not threaten to kill Leahy and that the position of Leahy's stab wounds shows that appellant did not “try to stab him in a place where he would have died as a result of the wound.” Finally, he argues that these facts, combined with the fact that appellant left the scene “as soon as the complaining witness was forced to leave [appellant] alone,” proves that he “merely wanted to get out of this situation alive and the use of the small knife/letter opener was his only option under the facts as developed at the trial.”
        Viewing all of the evidence in the light most favorable to the verdict,   See Footnote 1  we conclude that it is legally sufficient. A rational juror could have found appellant guilty of all of the elements of aggravated assault with a deadly weapon and could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; see also Padilla v. State, No. 11-06-00230-CR, 2008 WL 1746729, at *4 (Tex. App.-Eastland Apr. 17, 2008, pet. filed) (evidence was legally sufficient to support jury's rejection of self-defense claim because victim testified that appellant was the aggressor and “rational juror could have believed her testimony and rejected [appellant's] self-defense claim”).         Viewing all of the evidence in a neutral light, we conclude that the evidence is factually sufficient to support the jury's rejection of appellant's self-defense claim and its finding of his guilt. Leahy's testimony, when considered by itself, is not too weak to support the rejection of appellant's self-defense claim; and the evidence of appellant's guilt is not against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595.
        The record demonstrates that appellant stabbed Leahy repeatedly, and appellant does not dispute this fact. The only evidence to support appellant's claim of self-defense was his written statement to police and Shaffer's testimony about the events preceding the stabbing. The jury's decision to accept or to reject appellant's claim of self-defense ultimately hinged on the credibility of the evidence. There was conflicting evidence about the fight between appellant and Leahy. Leahy's testimony was inconsistent with appellant's written statement and Shaffer's testimony. Nevertheless, it was within the jury's province to resolve the disputed versions of the events in question. By returning a verdict of guilty, the jury necessarily resolved those conflicts in favor of the State. As the sole judge of the witnesses' credibility and weight to give the testimony, the jury was free to do so, and we will not disturb its finding. See Watson v. State, 204 S.W.3d 404, 427 n.37 (Tex. Crim. App. 2006) (“only the jury can assess credibility, resolve conflicts in the testimony, or decide the weight that should be given to the testimony”).
        We overrule appellant's first and second issues.
Admission of Evidence Concerning Appellant's Extraneous Misconduct
 
        In appellant's third issue, he argues that the trial court abused its discretion by admitting evidence of appellant's extraneous misconduct during the guilt/innocence phase of the trial. Specifically, appellant argues that the trial court erred by allowing the State to rebut his claim of self-defense by questioning two witnesses about two prior incidents in which appellant was the aggressor. A.
 
Relevant Facts
 
        Leahy essentially testified that appellant's attack was unprovoked and unwarranted. Appellant refuted Leahy's testimony through Shaffer's testimony and by citing the jury to his written statement. After the conclusion of testimony from appellant's witnesses, the State requested a hearing outside the presence of the jury. During that hearing, the State told the trial court that it wanted to “use extraneous evidence to rebut the defensive theory in this case of self-defense.” The trial court allowed the State to make an offer of proof.
        The State called Holly Pierce to the stand. She testified that in December 1999, she and four friends were in the parking lot of a nightclub around 2:00 a.m. getting ready to leave when they were approached by appellant, who was riding a bike. Pierce testified that appellant was “riding in circles behind the car mumbling things; 'I am new to Dallas, what is there to do in Dallas.'” Appellant attempted to ride his bike up on the curb, but when he hit the curb, he fell off his bike and Pierce and her friends started laughing. Appellant grabbed the driver of the car by the neck, swung him around, took his car keys, and began walking away. Pierce asked appellant “a couple of different times if I could please have the car keys back.” In response, and without any warning, appellant turned around and punched Pierce “several times in the face and neck.” One of Pierce's friends, who was screaming “at the top of her lungs” while appellant was hitting Pierce, attracted the attention of nearby officers who pulled over and arrested appellant.   See Footnote 2 
        The State re-called Shaffer next. She testified that in July 2004, she and her fourteen-year-old son “had a conflict.” Her son “had an outburst of anger” and was calling Shaffer “some very bad names.” Appellant was at Shaffer's house at the time and told Shaffer's son that he “shouldn't treat your mom like that.” Shaffer's son “got in [appellant's] face and was screaming at him; you know, you are not my dad.” According to Shaffer, appellant said “'I know, I am not trying to be your dad; I am just trying to be your friend.'” Shaffer's son continued yelling at appellant and Shaffer went upstairs. She came back down after she “heard a crash, which I didn't see exactly what happened.” Her son had “fallen through the glass of the glass sliding door.” The injuries Shaffer observed on her son were “small cuts on his feet” and “a red mark on his face.”   See Footnote 3 
        At the conclusion of this testimony, appellant's counsel objected to the State's request to introduce evidence of this extraneous misconduct. He argued that Pierce should not be allowed to testify about appellant attacking her because her testimony did not rebut “the theory of self-defense in this case. It only amounts to character-conforming issues.” He also argued that Pierce's testimony “does not meet the criteria for the series of rules that I'll tell you are Rule 401, 402, 403, 404, including 404(b),” and that the probative value of the testimony “is substantially outweighed by the prejudicial effect of that evidence on the jury.” He argued that Shaffer should not be permitted to testify about the incident involving her son because “she cannot testify to a completed offense.” He also argued that the fact that appellant “may have struck or pushed [Shaffer's] son does not rebut a self-defense theory in this case.” The trial court overruled appellant's objections, allowed the State to introduce this evidence, and indicated that the jury be given a “limiting instruction.”
        Shaffer and Pierce were then called by the State as rebuttal witnesses. They testified in front of the jury to the events they described in the sub-rosa hearing. At the conclusion of their testimony, the trial judge read the following instruction to the jury:
 
You are instructed that if there is any testimony before you in this case regarding the Defendant having committed offenses other than an offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the intent of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case and for no other purpose.   See Footnote 4 
 
B.
 
Analysis
 
        In his brief to this Court, appellant cites Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh'g), and generally notes that, “once a trial court rules that evidence is admissible under Rule 404(b),” a balancing test is required by Texas Rule of Evidence 403. He then argues, in a single paragraph, that
 
[a]s can clearly be observed by the nature of the two extraneous offenses, neither shed any light on Appellant's claim of self defense but merely prejudicially inflamed the jurors . . . . The admission of these extraneous offenses completely obliterated any chance that the jury could objectively evaluate the evidence in this case and render a fair and untainted verdict.
 
Although appellant makes the conclusory argument that the prior misconduct at issue does not “shed any light” on his claim of self-defense in this case, he does not cite to the requirements for admissibility under rule 404 or explain why the evidence was not admissible under that rule. Consequently, we need not separately analyze whether the testimony concerning the extraneous misconduct was relevant apart from character conformity and therefore admissible under rule 404. See generally Montgomery, 810 S.W.2d at 388 (admissibility under rule 403 is distinct from admissibility under rule 404). Instead, we will assume that the evidence was admissible under rule 404 and limit our analysis of appellant's third issue to whether the trial court abused its discretion when it concluded that the evidence was admissible under rule 403.   See Footnote 5 
        Under rule 403, relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; see also Montgomery, 810 S.W.2d at 389 (rule 403 favors admissibility and “presumption is that relevant evidence will be more probative than prejudicial”).
        We review a trial court's decision to admit evidence of extraneous misconduct under an abuse-of-discretion standard. Montgomery, 810 S.W.2d at 391. We conclude that the trial court abused its discretion under rule 403 only when “relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence.” Id. at 392. These relevant criteria include: (1) whether the ultimate issue to which the extraneous misconduct was relevant was seriously contested by the defendant; (2) whether the State had other convincing evidence to establish the ultimate issue; (3) whether the probative value of the extraneous misconduct evidence was, either alone or in combination with other evidence, particularly compelling; and (4) whether the extraneous misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been effective. Id. at 393.
        Reviewing the record in light of these factors, we first conclude that the ultimate issue to which the evidence related-appellant's claim of self-defense-was seriously contested. We also conclude that, because Leahy's testimony was disputed, the State did not have other convincing evidence to disprove appellant's claim of self-defense. Even on appeal, appellant continues to argue that “[t]he facts of this case clearly indicate that [Leahy] was the aggressor.” We also conclude that it was reasonable for the trial court to find that the probative value of the evidence was compelling. Appellant had a history of aggression and does not dispute the veracity of Pierce and Shaffer's testimony. We also conclude that the trial court did not abuse its discretion when it implicitly found that its limiting instruction to the jury would be effective. Under these facts, we conclude that the trial court did not abuse its discretion when it permitted the witnesses to testify to the two prior incidents in which appellant was the aggressor. See, e.g., Lemmons v. State, 75 S.W.3d 513, 523-24 (Tex. App.-San Antonio 2002, pet. ref'd) (trial court did not abuse its discretion by admitting
evidence “that [appellant] had acted as a first aggressor in the past” because “State needed to rebut [appellant's] claim that he was not the first aggressor”).
        We overrule appellant's third issue.
Conclusion
 
        We overrule appellant's three issues and affirm the trial court's judgment.
 
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061710F.U05
 
Footnote 1 We question whether appellant has adequately briefed this issue. See Tex. R. App. P. 38.1(h). Although appellant generally cites the appropriate standards of review, appellant's combined argument consists of only one paragraph containing the conclusory statements cited above. He does not explain why the evidence in this case was legally or factually insufficient, and he does not cite to the record in his argument or analyze the evidence in light of the appropriate standards of review. Nevertheless, assuming, without deciding, that appellant has properly presented his first two issues for appellate review, we analyze the record under the appropriate standards of review.
Footnote 2 Pierce also testified that, as a result of this incident, appellant was convicted of robbery and spent two years in the penitentiary, but the trial court did not allow this testimony to be repeated in front of the jury.
Footnote 3 Shaffer also testified that appellant pleaded guilty to injury of a child after this incident, but the trial court did not allow this testimony to be repeated in front of the jury.
Footnote 4 The trial court also included this instruction in its written charge to the jury.
Footnote 5 We question whether appellant has adequately briefed this issue. See Tex. R. App. P. 38.1(h). Appellant's argument consists of the conclusory statements cited above. He does not explain why the evidence was more prejudicial than probative, and he does not cite to the record in his argument or analyze the evidence in light of the appropriate balancing test and the specific factors we consider on review. Nevertheless, assuming, without deciding, that appellant has properly presented this issue for appellate review, we will resolve it on the merits.