DAMION DUNTAY FORD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 5, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00616-CR
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DAMION DUNTAY FORD, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F07-59983-WK
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OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
        Damion Duntay Ford appeals his murder conviction. A jury convicted appellant and sentenced him to thirty-seven years' confinement. In three points of error, appellant argues the evidence is legally and factually insufficient to support the jury's implied rejection of his self- defense claim, and the State improperly argued during closing argument that appellant had a duty to retreat. We affirm the trial court's judgment.
        Appellant testified that, on December 6, 2007, he went to a barbershop in Dallas with his friend Chris Crow. Inside the barbershop, appellant recognized Eddie Simmons and Xavier Sanders sitting “in the rear end of the shop.” Appellant spoke to his barber and sat against the partition wall that divided the barbershop into two sides. Simmons and Sanders were directly behind appellant “kind of like at a catty-corner behind” his right arm. Appellant waited approximately twenty minutes before it was his turn for a haircut. During the haircut, appellant fell asleep but woke up every time the barbershop door opened. A woman came in the barbershop and asked for “Black.” This drew appellant's attention because he knew Simmons went by the name “Black.” In 2004, appellant had bought marijuana from Simmons, and Simmons beat appellant with a gun and stole money and a ring from him. When the woman came in to ask for him, Simmons and Sanders had already left and gone into the back of the barbershop to smoke.
        B.J. Beasley and Fred Williamson entered the barbershop, and Beasley and appellant greeted each other. Beasley and Williamson walked around the partition wall toward the back area of the barbershop. About a minute later, Simmons and Sanders came out of the back room and “gathered up with” Beasley and Williamson. Appellant saw “an exchange of hands” and heard the sound of “the gun cocked, the cocking of a round.” Appellant was carrying a gun in a holster, and he took the gun out and set it in his lap. Crow, who had stepped outside, walked back in to the barber shop. Appellant saw Simmons was “focusing his attention on” appellant, and appellant asked Crow to hand him a bat that was sitting in a corner. Appellant was in fear for his life and stood up to reach for the bat. Appellant's fear made him forget that his gun was in his lap, and it fell to the floor when he stood up. Appellant reached for the bat and grabbed his gun and walked around the partition wall and stopped approximately five feet from Simmons. Appellant pointed the bat at the men but held his gun low at his right side. Beasley turned around, saw appellant holding the bat, and grabbed the bat. Beasley pushed the bat away, and appellant let it go. Simmons “went to raise the gun but it never fired.” At that point, appellant raised his gun and started shooting.
        Appellant was “in shock” and he “froze.” When he looked around everyone was gone. Within a minute, another man came in the barbershop and asked what happened. Appellant left the barbershop and saw his friend Lonnie drive up. Appellant told Lonnie what happened, and Lonnie gave him a ride home.
        Beasley testified Simmons called him on the day of the shooting and asked him to come to the barber shop because “there was some dudes up there tripping with him.” Simmons called two or three more times, and “his voice changed” and “it was like he was scared.” In the last call, Simmons said “a dude just brought him a gun,” but Simmons did not identify who brought or received the gun. Beasley arrived at the barbershop and saw appellant sitting in a chair. Appellant was dating Beasley's cousin Brandy, and Beasley went up to appellant and shook his hand. Beasley looked for Simmons but did not see him at first. Beasley walked in and out of the barbershop and over to the right side of the shop. Beasley put a loaded nine-millimeter handgun on a counter. Although the gun was loaded, it was not ready to fire because it was not cocked. Simmons and some other men came through a “closet door.” Appellant “jumped up and came around on the other side” of the partition and approached the group where Simmons and Beasley were standing. Appellant had a bat in one hand and a gun in the other, and he said “Bitch, where my money at?” As appellant approached, Beasley walked toward appellant and grabbed his arm to try to stop him. Appellant “snatched away” from Beasley, and “that's when the shots started.” Everyone ran out of the barbershop, including Beasley, who ran down the street to his cousin's house. Beasley waited for appellant to leave, and then he went back to the barbershop, saw Simmons lying on the floor, and picked up the gun he had brought because it was in his cousin's name. Beasley took the gun with him.
        Xavier Sanders testified he was the manager of the barbershop on the day of the shooting. Simmons came in the barbershop, shook hands with everyone, and sat and talked with Sanders. A friend of Sanders came in the barbershop and asked if Sanders wanted to smoke marijuana, and Sanders, his friend, and Simmons went in a back storage room to smoke. While they were in the “tiny” room, Simmons kept looking out the door of the room, and Sanders was concerned because he did not want the smoke to get out to where the customers were. Sanders left the room and was talking with some women when his friend and Simmons came out of the room. Sanders saw a man approach and realized the man had a gun. Sanders looked around and saw Simmons in his peripheral vision. Simmons moved in a way that caused the man to point his gun at Sanders. After Sanders had the gun pointed at him, “it was like a bunch of yelling and [Sanders] could just tell like it was like he was getting ready to shoot.” Sanders “leaned over to the left” and heard at least three gunshots as he went down and made it to the door. During the time he spent with Simmons, Sanders did not see Simmons with a weapon. Sanders was not able to identify appellant as the man who shot Simmons.
        Joseph Gatlin testified he was working as a barber on the day of the shooting. Gatlin saw appellant get up out of the chair next to Gatlin's, drop a gun on the floor, pick up the gun, and “put it back up.” Two or three minutes later, Gatlin heard shots and ran out of the barbershop. Gatlin later came back inside the barbershop and saw Simmons lying on the ground. Gatlin testified Simmons had a gun in his right hand. A man picked up the gun from Simmons' hand and was “trying to find somewhere to put it.” Gatlin told the man not to put the gun in the barbershop but did not know what the man did after that because he “kind of shied away from everything and got to [him]self.” On cross-examination, Gatlin confirmed he told a police detective after the shooting that a man came in the barbershop after the shooting and got a gun. However, Gatlin admitted that he did not mention that he saw a gun in Simmons' hand after the shooting when he made his statement to police.
        Dallas police detective Daniel Town testified he recovered an unfired nine millimeter cartridge from the floor by the partition wall close to Simmons' body. Town did not know if the unfired cartridge “had anything to do with the offense.” Charles Clow, a firearm and toolmark examiner at the Southwest Institute of Forensic Sciences, testified that, if a cartridge was already in the chamber of a nine millimeter handgun, and if the slide was pulled back, the cartridge would be ejected with a “click-click sound.” At the conclusion of appellant's trial, the jury convicted him of murder. This appeal followed.
        In his first and second points of error, appellant argues the evidence is legally and factually insufficient to support the jury's rejection of his claim he acted in self defense when he shot Simmons. The Texas Court of Criminal Appeals has recently directed that:
 
the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.
 
Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at *5 (citing Jackson, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id.
        A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02 (West 2003). However, a person is justified in using 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. Tex. Pen. Code Ann. § 9.31(a) (West Supp. 2010). A person is justified in using deadly force against another 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)(2)(A) (West Supp. 2010). If the evidence raises self-defense, the State has the burden of persuasion in disproving self-defense beyond a reasonable doubt. See Tex. Pen. Code Ann. § 2.03(d) (West 2003); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.).
        Appellant testified he shot Simmons but claimed he was in fear for his life because he heard the sound of a gun cocking. However, appellant did not testify Simmons was the one who cocked a gun. Instead of leaving the barber shop, appellant took his gun and a bat and approached Simmons. Appellant claimed Simmons had a gun in his hand, but Beasley testified the handgun he brought was on a counter, and Sanders testified Simmons did not have a weapon. Gatlin testified he saw a gun in Simmons' hand when Gatlin saw his body after the shooting. However, Gatlin admitted he did not mention this to police when they took his statement after the shooting, and neither Beasley nor Sanders testified Simmons had a gun. Police recovered an unfired nine millimeter cartridge from the scene, and Clow testified that a nine millimeter handgun would eject a cartridge if the slide was pulled back. However, there was no evidence to show the cartridge came from the nine millimeter handgun Beasley brought or that it was ever loaded into a gun. Although appellant testified Simmons had a gun in his hand and he shot Simmons in self defense, the jury was free to believe Sanders' and Beasley's testimony and disbelieve appellant. See Adelman, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). In particular, the jury was free to believe that appellant approached Simmons, who was unarmed, asked about money, and shot Simmons to death. Under these circumstances, we conclude a rational trier of fact could have found that appellant did not shoot Simmons in self defense. See Jackson,443 U.S. at 319; McCray, 861 S.W.2d at 407. We overrule appellant's first and second points of error.
        In his third point of error, appellant argues the State improperly argued in its closing argument that appellant had a duty to retreat. Specifically, appellant complains of the following argument:
 
He didn't have a CHL [concealed handgun license]. He took that gun into that barber shop not even knowing Eddie Simmons was there, so he was already outside of that criteria. He was carrying a gun without a CHL, brought it in here and he said the first person he saw was Eddie Simmons. Now he testified he saw him. He didn't say, well, when I saw Eddie Simmons I was so scared I just went ahead and just walked out the door because he had brutally beat me so bad -
 
Appellant objected to this argument on the basis that it argued against the law, and he had no duty to retreat. The trial court overruled his objection. Afterward, the prosecutor continued his argument:
 
You got to hear about what his state of mind was. I walked into the barber shop, I saw Eddie Simmons, so instead of just leaving because this is the person that assaulted me, beat me so bad that I'm scared of him, instead of doing that I sit down and turn my back on him and sit up here in front of Chair No. 3. You get to consider that. Is that a reasonable-does it make sense if you are that scared? You hear him testify and you heard everybody else testify that was in that shop. It was going, it was buzzing like it always was. You got guys cutting hair. You got guys talking about their rap career, guys in the back smoking blunts. You even heard from the defendant that nothing unusual was going on until he woke up in the chair and heard somebody say, hey, where is Black, well over twenty minutes later. Now that's important. It is not just about him getting up here on the witness stand and saying, okay, I was scared, y'all believe me. You have to decide did those circumstances exist that he was talking about.
 
The standard of review for improper jury argument is abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) an answer to the argument of opposing counsel, or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. 1999).
        Reading the prosecutor's argument in context, it does not appear the argument asserted that appellant was under a duty to retreat. Instead, the argument appears directed at showing appellant's state of mind in answer to appellant's theory of the case that he was in fear for his life and acted in self defense when he shot Simmons. The argument summarizes the evidence presented by appellant that he saw Simmons when he first entered the barbershop, waited approximately twenty minutes in the barbershop while Simmons was present, and fell asleep in the barber chair while Simmons was still nearby. In context, the prosecutor's argument presents the reasonable deduction from the evidence that appellant was not scared of Simmons but was carrying, without a license, a handgun that he dropped on the floor, picked up, and used to shoot Simmons. Rather than asserting appellant had a duty to retreat, the prosecutor's argument asserts the circumstances appellant described would not have reasonably put him in fear for his life. Because the argument about which appellant complains did not assert appellant had a duty to retreat, we conclude the trial court did not abuse its discretion in overruling appellant's objection. See Powell, 63 S.W.3d at 438. We overrule appellant's third point of error.
        We affirm the trial court's judgment.        
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090616F.U05