TRENA LASHONE RUTHERFORD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 6, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00812-CR
............................
TRENA LASHONE RUTHERFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
of Dallas County, Texas
Trial Court Cause No. F07-57395-VH
.............................................................
OPINION
Before Chief Justice Wright and Justices Francis and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted Trena Lashone Rutherford of murder and assessed a fifteen-year sentence. In two issues, appellant complains the evidence is legally and factually insufficient to support her conviction. We affirm the trial court's judgment.
BACKGROUND
 
        Appellant, the deceased (BG)   See Footnote 2 , and BG's daughter shared an apartment. During an early morning argument, appellant shot and killed BG.
SUFFICIENCY OF THE EVIDENCE
 
        Appellant contends the evidence is factually and legally insufficient to support the jury's verdict. Appellant argues that the evidence she acted in self-defense so greatly outweighed the evidence of guilt that it undermines confidence in the verdict and a rational juror could not have found all the elements of the offense. The State responds the evidence is both legally and factually sufficient to sustain the conviction.
THE EVIDENCE
 
1. Latara Carraway
        Carraway, BG's daughter, testified that she was awakened by the sound of BG's and appellant's argument. She heard “them” say you beat me and now it is my turn. Carraway heard BG's and appellant's bedroom door open and looked out. Appellant was going downstairs with BG behind her. When BG saw Carraway standing there, he told her to go back into her room. From inside her room, Carraway could hear both of them screaming. She did not hear what they were saying or any scuffling, hitting, or things being thrown. Both BG and appellant went outside and Carraway could hear them yelling in the parking lot. Carraway looked out her window and saw appellant and BG standing about four to five feet apart. Appellant was behind her vehicle and BG was on the other side of the vehicle parked next to appellant's vehicle. Carraway then heard, but did not see, two gunshots, followed by four more gunshots.
        Carraway ran outside and saw BG holding appellant by her ears. Appellant had her hands on his shoulders. Carraway heard appellant saying she was sorry and BG saying you shot me. Appellant walked BG back to the steps and then got in her vehicle and left. Carraway never spoke to appellant and appellant said nothing to her. BG told Carraway to go get Andrew Edwards. Carraway went to Edwards's apartment and told Edwards and Carranza Bankston that appellant “shot my dad.” As the three of them went toward BG's apartment, appellant came back in her vehicle. Appellant drove around the apartments, then backed up, and asked where he was. Carraway answered, “where you left him.” Appellant drove around again, then left.
        On cross-examination, Carraway testified that she had known appellant only two to three months, but they had a good relationship. Appellant treated Carraway like one of appellant's own children. They had gone shopping together, and appellant had bought her clothes. On the night before the shooting, Carraway and BG were home. BG was smoking marijuana and appellant was working late.
        Although Carraway denied that she ever saw BG and appellant do more than argue on the morning of the shooting and did not tell the police anything different. Appellant had her read the statement she gave to the police. After reading her statement, Carraway admitted she had told the police that she saw appellant swing at BG and hit him in the head with something. Then, they started to wrestle. After about ten minutes, appellant went downstairs and BG followed her. Carraway thought that appellant was trying to get away.
2. Andrew Edwards
 
        Edwards testified that he had known appellant and BG for some time. At one time, BG lived with Edwards. After BG moved from Edwards's apartment to an apartment on the next street, Edwards only saw BG and appellant from time to time. He had never seen BG hit, threaten, or even yell at appellant. Appellant never complained to him about BG abusing her. On the day in question, Carraway ran to Edwards's apartment, screaming that “she shot my dad.” Edwards and his fiancée, Carranza Bankston, ran to BG's apartment and found him sitting on the stairs bleeding and holding his neck. Edwards thought someone had shot the deceased while trying to take his vehicle. He asked BG who shot him and he replied “Tree Bird,”appellant's nickname.         On cross examination, Edwards testified that he did not know appellant very well. Although BG “consulted” with Edwards on a lot of things, BG never complained about appellant leaving him for another man or a lack of sex.
3. Carranza Bankston
 
        Bankston testified that when Carraway came to their door, she and Bankston ran toward BG's apartment. As Bankston got to the front of the complex's office, she saw appellant in an automobile. Appellant neither appeared injured nor acted as if she had been injured. Bankston saw no blood on appellant. Appellant honked her horn and asked “where he was.” Carraway replied that her father was “around there.” Bankston ran in the direction Carraway indicated, but appellant did not follow her. Bankston found BG face down on the concrete. When she turned BG over, she saw a hole in his neck and a hole in his shoulder.
        On cross examination, Bankston admitted she had never seen appellant “threaten, strike, or kick” BG. However, she had seen appellant verbally abuse BG.
4. Barbara Morris
 
        Morris, lived with her son directly across from BG. On the day in question, Morris's mother was at their apartment. About 6:30 a.m., Morris heard what she thought were gunshots. She looked outside and saw nothing. Morris ran upstairs and through the window she saw BG was walking backwards with his hands around appellant's ears with appellant facing him. BG was saying “you shot me, you shot me” and appellant had her hands on his shoulders, saying, “I'm sorry, I'm sorry, I'm sorry.” Appellant and BG walked back toward their apartment. BG fell down on the steps and appellant ran to her vehicle. Appellant had her keys and cellular telephone in her right hand, but Morris could not identify what appellant had in her left hand.
        On cross examination, Morris testified she heard arguing outside. When questioned on the number of gunshots, Morris explained that she heard two initial sounds, which could have been a noise made by her iron gate, and then four definite gunshots that “were right behind each other.” Morris admitted it was dark, but a huge light allowed her to see everything. Morris saw appellant holding BG as they walked towards the stairs.
5. Jeremiah Torrez
 
        Torrez, a Dallas Patrol Officer, and his partner were the first officers on the scene. Torrez's notes show that appellant had said “I'm sorry, I'm sorry.” Torrez explained that if Morris could have seen what appellant had in her hand and told him about it, he would have written that down. Torrez also testified that the police dispatcher made him aware that appellant herself had called 911 from a 7-Eleven convenience store and that someone had called 911 from a 7-Eleven and said “they had done it.”
6. Eddie Lopez
 
        Lopez, a Dallas Homicide Detective, and Sergeant Bruce McDonald left the crime scene and went to the home of appellant's sister, Anastasia Bolden. While they were at Bolden's house, appellant telephoned and spoke with Lopez. Lopez testified that although appellant was hysterical and crying, she just started talking. She thought she had shot BG in the leg until she saw on television that he had died. Appellant told Lopez that she wanted to turn herself in. Appellant gave the telephone to Thomas Fuller, who told Lopez that although appellant was scared, she wanted to turn herself in to the police.
        Lopez told Fuller to bring appellant to Bolden's house and asked Fuller to put appellant back on the telephone-appellant was hysterical and still crying. Fuller and appellant arrived at Bolden's house about thirty to forty-five minutes later. When they were a couple of blocks away, Fuller telephoned Lopez and assured him that appellant had put the gun away. Lopez arrested appellant. Lopez admitted that appellant expressed remorse and stated several times that “she didn't mean to do it.”
6. Bruce McDonald
 
        McDonald testified that Thomas Fuller, who arrived with appellant at Bolden's home, told the officers that they could find “the pistol they were looking for” in the backseat of his car. McDonald confirmed that when appellant arrived, she was upset and crying. On redirect examination, the State asked McDonald if he saw any injuries on appellant-he did not.
7. Steven David
 
        David, a Dallas Police Homicide Detective, testified that he had received Bolden's telephone call informing him that appellant had told her what happened. David sent Lopez to take Bolden's statement. David also showed a photographic line-up to Morris, who identified appellant.
        David had interviewed appellant on videotape. David confirmed that appellant was upset and exhibited remorse when he interviewed her.
8. Mike Epple
 
        Epple, a Dallas Police Crime Scene Detective, testified that he photographed the apartment parking lot where the shooting occurred. He documented where he found cartridges, both fired and unfired, in the parking lot. He also collected items from appellant's purse that had blood on them. When he photographed appellant,   See Footnote 3  he asked her if she had any cuts, bruises, or scratches that he needed to photograph. Appellant indicated that she did not.
        Epple saw no signs of a struggle or damage in appellant's and BG's apartment. Epple explained he saw no holes in the wall or blood splatter and nothing was overturned or smashed. Consequently, he did not photograph anything in the apartment.
9. Vicki Hall
 
        Hall, a trace evidence examiner for the Southwestern Institute of Forensic Sciences (SWIFS), tested the gunshot residue collected from appellant's and BG's hands. She found gunpowder residue on the back of both of BG's hands and on the back of appellant's right hand. Gunpowder residue indicates that the person either (1) fired a firearm or was near one when it was fired and (2) was within three-to-five feet of the discharging firearm.
10. Lannie Emanuel
 
        Emanuel, a SWIFS firearm examiner, examined the firearm connected to this case. Emanuel identified the gun used as a .25 caliber semi-automatic pistol. To fire a semi-automatic, you have to pull the trigger, release, and then pull the trigger again. After test-firing this firearm and noting how the shell casings landed, he concluded that two shots were fired, the shooter moved, and then two more shots were fired.
        On cross-examination, Emanuel testified that he based his conclusions on a pristine scene and his conclusion of the shooter's movement would change if a cartridge casing had been moved. Emanuel admitted that an ambulance or medical personnel could have caused the cartridge casings to be displaced, but he concluded that no vehicle ran over the cartridge casings and he had no way of knowing if anyone kicked or picked one up.
11. April Stowe
 
        Stowe, a SWIFS trace evidence examiner, examined BG's clothing for gunshot residue. This particular weapon stopped depositing residue at a range of less than eighteen inches from the gun. From this observation, she concluded that the muzzle of the gun was more than eighteen inches away from BG. Additionally, she identified an entry hole on the back of BG's shorts. She recognized the hole as an entry hole because of the grease ring. Stowe also opined that clothing moves as a person moves. Consequently, a defect in clothing may not appear where a wound appears.
        On cross examination, Stowe admitted that an interposed target would also affect gunshot residue. And, that she could not determine from which direction the shot came.
12. Amy Gruszecki
 
        Gruszecki, the medical examiner for SWIFS, performed the autopsy on BG. The toxic screen showed BG tested positive for marijuana. Her external examination showed that BG had gunshot wounds on his neck and left leg. The bullet grazed his neck before entering and traveling down through his lung and heart and ending up in his liver.
        On cross-examination, Gruszecki explained that although the gun could have been fired from above the decedent, it was only one possible explanation. In this case, the possibilities were endless as to how far the barrel of the gun was from the body and whether the gun was fired from above the decedent. She only could testify that after the bullet entered the body, it went straight down to the liver. The shot itself was not a contact or intermediate wound because no soot or stippling appeared on the wound. Under questioning by the State, Gruszecki agreed that, given the height of appellant and BG, the shooter would have to have been higher than BG for the bullet to travel downward to his liver if BG was shot while he was in a vertical position.
13. Anastasia Bolden
 
        Bolden, appellant's stepsister, testified that appellant's telephone automatically dialed her telephone at about two or three o'clock on the morning in question. Bolden recognized appellant's and BG's voices. She heard BG accusing appellant of not going to work and appellant maintaining she did go to work. BG wanted to have sex with appellant and appellant did not “because they had just got through arguing.” They were cussing and appellant said she was leaving.
        Bolden listened for ten or fifteen minutes before anybody realized she was listening. She could hear appellant going up and down the stairs, saying “don't throw my stuff.” Bolden could hear things “coming” on the stairs. Next, she heard appellant say she was going to call her, that was when appellant realized Bolden was on the cellular telephone.
        According to Bolden, BG and appellant were bickering back and forth at first. Then BG's voice changed and it went from “a regular spat to something more.” Bolden heard a thud and the telephone went dead. She called back and heard appellant say, “just get off of me and I'll go.” The telephone went dead again. Minutes later, appellant called Bolden back and said,“ he's trying to fight me for real.” Bolden tried to call back, but nobody answered. When appellant finally called her, she was hysterical and told Bolden, “he wouldn't stop, he wouldn't stop . . . I think I shot him in the leg.” While Bolden was talking with appellant, someone from Lubbock telephoned and told Bolden that “he's dead.”
        On cross-examination, the State established that Bolden and BG were close. When appellant moved in with BG, she was seeing another man, Thomas Fuller. As Bolden listened over the telephone to appellant and BG arguing, she heard BG say, “you're getting out” and appellant responding that she was not going anywhere because she had paid her half of the rent. Bolden conceded that appellant never complained of BG physically abusing her in this telephone conversation. But, appellant did say, “he wouldn't stop hitting me, he wouldn't stop coming, he just wouldn't quit.” When the State questioned Bolden about the three “booms” or “bangs” she heard, she explained that the noise could have been either them coming down the stairs, making contact, or the telephone dropping. The State maintained that she really heard nothing and in response, Bolden answered that she heard BG say either they had to have sex or she had to get out.
        On redirect examination, Bolden explained the whole argument started because BG thought that appellant's coming home late from work meant that she had been with another man. Both BG and appellant had been seeing others. Bolden had seen BG get on top of appellant and hold her arms down to aggravate her. But, from the tone of BG's voice, she could tell he was not playing. Bolden recalled appellant saying, “I wasn't trying to hurt him and God gonna get me.”
14. Appellant
 
        Appellant testified that she and BG were friends initially, then eventually began dating and living together. She detailed previous fights that had gotten out of hand-including BG's holding her by her hair and banging her head against the window, his tackling and choking her, and her responding by hitting him with a liquor bottle. He was jealous. When he put a choke hold on her causing her to pass out, she moved out and went to live with a cousin.   See Footnote 4 
        Eventually, she moved back in with BG. Although they were no longer sexually involved, BG had threatened to kill both her and Fuller if she ever “messed” with him again. On the morning in question, she was awakened by BG tugging at her boxer shorts wanting to have sex. She refused and he pushed her out of bed. She folded up her bedding, put on her jacket, grabbed her purse, and started downstairs. He followed, throwing her things down the stairs. She went back to get her keys and they were gone. BG ran after her, grabbed her by her throat, and banged her up against the wall. She hit him with a speaker and tried to crawl away. BG grabbed another speaker and hit her in the head. She had never seen him in such a rage. Appellant ran toward her car and BG ran after her. When appellant went into her purse for her keys, she “reaches” her gun. She pulled the gun out and shot beside BG, but he did not stop. She shot again and still he came at her and was choking her. He said, “Bitch you shot me.” Then he turned and ran and fell when he reached the stairs.
        On cross-examination, the State questioned appellant about her history with BG. In general, she adhered to her version as she had related in direct examination. Appellant admitted that she was working under her cousin's name because the owner of the businesses she was cleaning would not have allowed a felon to work there.
15. Jonathan Moore
 
        Moore, appellant's cousin, testified about a previous incident in which appellant had called him to come help her because she could not take it anymore. When Moore arrived, appellant was outside, crying, and her face was swollen. Moore went inside and BG denied abusing appellant and seemed apprehensive about how appellant's family would react. Moore was concerned when appellant moved back in with BG. At family gatherings, when Moore would ask about appellant, the family would tell him that BG would not let her come.
16. Thomas Fuller
 
        Fuller testified he first met appellant in early October 2006. They began talking on the telephone, but did not begin to date until she moved out of BG's apartment. While talking with her, he heard the beginning of a confrontation between appellant and BG over what she had cooked for dinner. Before appellant got off the telephone, Fuller heard sounds of a scuffle. When appellant called Fuller back, she sounded upset and scared. Additionally, she told him BG had held her down and choked her. Fuller admitted he had not told the police about any previous incidents of abuse.         Although appellant had left, she ended up going back to live with BG. On the date in question, appellant telephoned Fuller at work. She was “screaming, crying, . . . saying she shot him.” Fuller left work and met her at his home. Appellant was covered in blood. She said he was on her and she shot him a couple of times and “he still came back and grabbed her.” Appellant was really scared and wanted to run. Fuller calmed her down and convinced her that she could not run forever.   See Footnote 5  Fuller explained that he had washed appellant's clothes before he took her to Bolden's house.
17. Cheryl McGuire
 
        McGuire testified that she had known appellant since they were children. McGuire testified that appellant had telephoned her, upset and crying, shortly before the offense, and said that BG had threatened to kill appellant, Fuller, and himself. McGuire testified the event she was describing was not the first time that appellant had told her about threats from BG.
 
18. Rebuttal Witnesses
 
        In rebuttal, the State recalled Officer David and called Sheila Lockett, a stylist at BG's hair salon. Through David, the State introduced the videotape of appellant's interview and a certified transcript of that interview. Appellant established that David did not have to use any tactics to get appellant to talk-she just started talking. David acknowledged that appellant was emotional and seemed to have a lot of guilt about shooting BG. David also admitted that a person's hands could be a deadly weapon. On redirect examination, David stated that appellant never said she feared for her life. He admitted he never specifically asked appellant if she feared for her life but he did mention “in fear for her life” to her.
        Lockett testified that she and BG had worked together for twelve years. She knew him to be a peaceful man, never violent. When BG and appellant first dated, appellant discussed his and appellant's relationship. He told Lockett that appellant was possessive and did not like his daughter. He felt trapped and wanted out of the relationship. After the couple split up, Lockett was really surprised and upset when appellant and BG got back together. Lockett admitted, on cross- examination, that she did not know that BG ever hit, choked, or threatened Fuller or appellant.
STANDARD OF REVIEW
        In reviewing the legal sufficiency of the evidence to support a verdict, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia., 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Laster, 275 S.W.3d at 517. In the context of a legal sufficiency challenge to the jury's rejection of self-defense, “we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        The evidence, though legally sufficient, may be factually insufficient if (1) the evidence supporting the conviction is “too weak” to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is “against the great weight and preponderance of the evidence.” Laster, 275 S.W.3d at 518. We must consider the evidence in a neutral light and we may only find the evidence factually insufficient when necessary to prevent “manifest injustice.” Id. If we determine the evidence to be factually insufficient, we “must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict.” Id. We must consider the evidence that 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 factual sufficiency review, we must not “substantially intrude upon” the fact finder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). 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).
        In reviewing whether the evidence is factually sufficient to support the jury's rejection of the defense of justification, we 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 or (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).
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). Texas recognizes a general defense of justification and places the burden on the defendant to produce some evidence to raise the defense. See Tex. Pen. Code Ann. § 2.03 (Vernon 2003); Miller v. State, 177 S.W.3d 177, 183 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Texas statutes entitle a person to use deadly force against another if the person is justified in using force under section 9.31 of the penal code and “when and to the degree the actor reasonably believes the deadly force is immediately necessary” to protect himself against the other's use or attempted use of unlawful deadly force or other offenses including murder, sexual assault, or aggravated sexual assault. See Tex. Pen. Code Ann. §§ 9.31(a), 9.32(a) (Vernon Supp. 2009).
        When a defendant raises an issue of self-defense, the State has the burden to prove the elements of the offense beyond a reasonable doubt and to persuade the fact finder that the defendant did not act in self-defense. Zuliani, 97 S.W.3d at 594-595 (citing Saxon v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)). The fact finder 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.
 
APPLICATION OF LAW TO THE FACTS
 
        It is uncontested that appellant shot and killed BG. Appellant argues that the evidence of self defense “makes the evidence legally insufficient to support the conviction.” She recites the evidence supporting her claim of self defense alleging that “justification is such that a rational juror could not have found all the elements of the offense and should have returned a verdict of not guilty. After reviewing all the evidence in the light most favorable to the jury's finding of guilt, we conclude that the evidence substantiates appellant's guilt beyond a reasonable doubt. We now turn to the evidence appellant claims supports her contention that the evidence is factually insufficient to support the jury's rejection of self defense.
        Only appellant testified to the actual shooting. In support of appellant's claim of self defense, appellant's brief summarizes favorable testimony from herself, Carraway, Bolden and, in general, all the defense witnesses. Appellant looks to Carraway's testimony to support her version of the confrontation that began on the morning in question, but she argues only that her perception of danger controls our decision.
        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 that 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 against the great weight and preponderance of the evidence. See Id. at 595. The evidence was factually sufficient. We decide appellant's issues against her. 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 Several witnesses testified that the deceased, Kelvin Carraway, was commonly known as “BG” or “Bubblegum.” We will refer to the deceased as “BG.”
Footnote 3 These photographs were admitted into evidence and appellant appears to be crying in each one.
Footnote 4 It is unclear how many times she left, when she returned, and who she went to live with. But, at some point she moved into an apartment that Thomas rented for her.
Footnote 5 While on probation, appellant had left Lubbock without permission.