PD-1465-15 PD-1465-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/11/2015 11:56:45 AM Accepted 11/12/2015 2:17:01 PM ABEL ACOSTA CLERK IN THE TEXAS COURT OF CRIMINA,L APPEALS

No. 14-14-00M4-CR In the FourteenthCourtof Appeals of Texas

Justin RossAllen, Appellant V.

The Stateof Texas,,Afuellee

Appollant'sPetitionfor Discre{ionarT Review

JefatdK. Crrabe,r T$B # 08240320 917Franklin,Suite510 H$rston,Texas77A02 Tdl.713-22+232 [email protected] A4omey for Appellant November 12, 2015 StatementRegardingOral Argument

Appellantwaivesoral argument.

Identitv of Judge.Parties.and Counsel Pursuantto TEX. R. APP.P. 38.1(a),the followingpersonsareinterested parties: Appellant Mr. JustinRossAllen TDCJ# 0r960t4s HollidayUnit 295lH-45 North Huntsville,TX 77320

Trial Judee TheHonorableBrad Han 230tr, DistrictCourr 1201Franklin Houston,Texas77002

Attomeysfor State Ms. SarahRobertsandMs. Lisa Calligan(in trial) Mr. Alan Curry(on appeal) HarrisCountyDA's Office 1201Franklin,6ftFloor Houston,Texas77002

Attomey for Appellant Mr. GordonDeesand Mr. William Denham(in fial) Mr. JeraldK. Graber (on appeal) Franklin,Suite510 Houston.Texas77002 Table of Contenti Page STATEMENTREGARDINGORAL ARGIII\{bNT 2 IDENTITYOFJUDGE,PARTIES,AND CoI.Ii\tSEL 3 TAtsLEOFCONTENTS 4 INDEXOFAUTI{ORITIES 5 STATEMENTOFTT{ECASE 6 STATEMENTOFPROCEDURAL HISTORY 6 APPELLANT'S GROUNDSFORREVIEW 7 REASONFOR REVIEWING GROUNDSFOR REVIEW 7 ARGUMENT 8 CONCLUSIONandPRAYERFOR RELIEF 1,4 CERTIFICA]E OF COMPLIA}TCE T4 CERTIFICATEOF SERVICE 15 Index of Authorities Cases Pase Cookv.State, 9,lr 884S.W.2d485(Tex.Crim.App. 1994) Jaclrsonv.Virginia, 8 ,1 l 443U.S.307,318-19,99 S.Ct.2781,278F-99, 6LL.Bd.zds60(re7e) Leal v. State, 9 ,1 1 800s.w.2d346,348 (Tex.App.,CorpusChristi lgg},pet ref.)

Lugo-Lugov. State, 9, LI-12 650S.W.2d72,81(Tex.Crim.App. 1983) Saxtonv. State, t2 804S.W.2d910,911(Tex.Crim.App. tq91) Thomosv. State, 13 578S.W.2d691,698 (Tex.Crim.App. Ig79)

Statutes.

CodesandRules Tex.Pen.Codeg 6.03(a), (b) 9 ,T T Tex.Pen.Codeg 9.32 13 Tex.Pen.Code$ 19.02(bX1), (2) 8,9,11 Tex.R.App.Proc.

66.3(c)and(D 8 To the HonorableCourt of Criminal Appeals:

Statementof the Case

Appellantwaschargedby indictmentwith the felonyoffenseof murder. (CR 10).Appellantentereda pleaof 'onotguilty" andthe casewastried before a iury. GR III 23). The jury found appellantguilty as chargedin the indictment.(CR 97). Thereafter,the jrry assessed a sentenceof 13 yearsin prison.(RR IV 12). Appellanttimely filed a written notice of appeal.(CR 128). Thetrial courtcertifiedthe defendant's right of appeal.(cR 130).

Statementof ProceduralHistory on November10, 2015 a panel of the FourteenthCourt of Appeals opinionaffirmingthetrial court'sjudgmentin this case. issuedan unpublished Appellantfilesthis first petitionfor discretionary reviewwith this Court.

Appellant'sGroundsfor Review

r) The court of Appealserredin holding the evidencesufficientto supportthejury's verdictof guilt for murder.No trier of fact could have found that appellanteither intentionallyor knowingly caused the deathof the complainantor intendedto causeseriousbodily injuy to the complainant.

2) The Court of Appealserredin holding the evidencesufficientto supportthejury's verdictof guilt for murdersinceno rationaltrier of fact could havefound beyonda reasonabledoubtthat appellantdid not actin self-defense.

Reasonfor ReviewinsAppellant'sQround for Review

ThelowerCourt'sruling shouldbe reviewedpursuantto Tex.R. App. P. 66.3(c)and(f).

Argument Ground for Review Number One: The evidenceis legally insufficient to support the jury's finding that appellant intentionally or knowingly causedthe death of the complainant, JamesTaylor. In this case,the evidencedoes not prove beyond a reasonable doubt that appellant either intentionally or knowingly causedthe death of the complainant or intended to cause serious bodily injury to the complainant.

Thus, the evidence is insufficient to support the jury's guilty verdict on murder. The trial judge erred by not granted appellant's motion for an instructedverdict of not guilty.

In reviewing the legal sufficiency of evidence,courtsconsiderall of the evidencein the light most favorableto the verdict and determinewhetherany rational trier of fact could have found the essentialelementsof the crime beyonda reasonabledoubt.Jacksonv. Virginia,443 U.S. 307,318-19,99 S.Ct. 2781,2788-89,61L.Ed.2d560 (1979). As chargedin the indictment and the jury charge, a person can commit murder if he (1) intentionally or knowingly causesthe death of an individual or (2) intends to causeserious bodily ittjuty and commits an act clearly dangerousto human life that causes the deathof an individual.Tex. Pen.Code g 19.02(bX1),(2). An intentional killing occurswhen the person's consciousdesireor objective is to causethe deathof another. A knowing kilting occurswhen the personknows that death is reasonablycertain. Tex. Pen. Code $ 6.03(a), (b). Thus a knowing killing contemplatesthe commissionof an act that is objectively dangerousto human rife.Lugo-Lugov. state,650s.w.2d72,81 (Tex.crim. App. 1983).To prove murder under this theory, the statemust prove that the defendantintentionally or knowingly engagedin an actthat causedthe death and intendedor knew that deathwould resultfrom that act.Leal v. State,800s.w.2d346,34g (Tex. App., Corpus Christi 1990, pet ref.). Intentional and knowing murder under $19.02(b)(l),(2) is a result-of-conduct offense.Cookv.State,884S.W.2d485 (Tex. Crim. App. 1994). Thus, the culpable mental state is focused on the defendant'sintent to achievethe result, ratherthan the defendant'sknowledge regardingthe conduct.Lugo-Lugov. State,650S.W.2dat 81.

In this case,at the close of the State's case-in-chief appellantmade a motion for an instructedverdict of not guilty. The motion was deniedby the trial judge. (RR IV 80). The trial judge erred by not granting appellant's motion for an instructedverdict of not guilty sincethe state'scase-in-chiefdid not prove the essentialelementsof murder. The stateonly proved that (1) the complainant died from blunt force trauma to his head erndneck area, (2) appellanttold his fatherthat the complainant"wasn't going to make it to work the next day becausehe was dead in a blanket in the motel room," and (3) appellant waslocatedandarrested outsideat a nearbyhotel.(RRIII 49,236, IV 13-14,34).Therewasnoevidence directlyor indirectlylinkingthedeathof the complainantto appellant.The fact that appellantand the complainantwere sharinga motel room is not any evidencethat appellantwas the actualperson who causedthe death.Furthermore,there was no evidencepresentedthrough appellant'sfather that appellantadmittedto the killing. Thus, the evidenceis legally insufficient to support a finding that appellant either intentionally or knowingly causedthe death of the complainantor intendedto causeserious bodily inj,rry to the complainant,ffid the trial judge erred by not granting appellant's motion for an instructedverdict of not guilty at the close of the stateoscase-in-chief.Thus, the Court of Appeals erredin fitndingthe evidence sufficientto supportthe verdict. Appellant shouldbe acquitrtedby this Court.

Ground for Review Number Two: The evidenceis legally insufficient since no rational trier of fact could have found beyond a reasonabledoubt that appellant did not act in self- defense.There is no evidencein this caseto disprovethat appellantdid not act in self-defense.Self-defenseis the only logical explanationfor what happened.

Appellant assertsthere was insufficient evidence to disprove self- defensebeyonda reasonabledoubt.The jury was instructedlto acquit appellant

unlessit believedbeyonda reasonabledoubtthat he did not act in self-defense. (CR 89-93). In reviewing the legal sufficiency of evidence,courtsconsiderall of the evidence in the light most favorable to the ver<lict and determine whetherany rationaltrier of fact could have found the essentialelementsof the crime beyonda reasonabledoubt. Jaclxon v. Virginia,44:l U.S. 307, 318-19, S.Ct.2781,2788-89,6I L.Ed.zd 560 (1979). As chargedin the indictment and the jury charge,a person can commit murder if he til) intentionally or knowingly causesthe death of an individual or (2) intends to causeserious bodily injury and commits an act clearly dangerousto hunnanlife that causes the deathof an individual.Tex. Pen.Code $ 19.02(bX1),t.2). An intentional killing occurswhen the person's consciousdesireor objective is to causethe deathof another. A knowing killing occurswhen the personknows that death is reasonablycertain. Tex. Pen. Code $ 6.03(a), (b). Thus,a knowing killing contemplatesthe commissionof an actthat is objectively dangerousto human Iife. Lugo-Lugov. State,650S.W.2d72,81(Tex.Crim. Af,p. 1983).To prove murder under this theory, the statemust prove that the defcndant intentionally or knowingly engagedin art act that causedthe death ancl intended or knew that deathwould resultfrom that act.Leal v. State,800S.\I/.2d346,348 (Tex. App., Corpus Christi 1990, pet ref.). Intentional and knorving murder under (2) is a result-of-conduct $19.02(a)(1), offense.Cookv. State,884S.W.2d485

l1 (Tex. Crim. App. 1994). Thus, the culpable mental state is focused on the defendant'sintent to achievethe result, ratherthan the defendant'sknowledge regardingthe conduct.Lugo-Lugov. State,650S.W.2dat 81. Furthermore,in reviewing the sufficiency of the evidencein self-defensecases,courtsnot only consider all of the evidence in the light most favorabl: to the verdict to determine whether any rational trier of fact could have found the essential elementsof murder beyonda reasonabledoubt but also del.erminewhetherthe jury could have found beyond a reasonabledoubt that appellantdid not act in Saxtonv.State,804S.W.2d910,911 (Tex.Crim. App. 1991). self-defense.

In this case,the jury was instructedon the use of dleadlyforce in self- defense.The jury was instructedproperly that if you find from the evidence,as viewed from the standpointof the defendantat the time, thertfrom the words or conduct or both of JamesTaylor it causeda reasonableexpectationor fear of the imminent commission of the offense of sexual assault at the hands of James Taylor and that acting under such apprehensionand reasonably believing that the use of deadly force on his part was immediatelynecessaryto protect himself against James Taylor's imminent con:unissionof sexual assault,he struckJamesTaylor with a hammeror an unknown object,then you should acquit the defendanton the groundsof self-defense;or if you have a reasonabledoubt as to whetheror not the defendantwas acting in self-defense

on said occasion and under the circumstance,then you should give the defendantthe benefit of that doubt and say by your verdict, not guilty. (CR 89- 93); Tex. Pen. Code $ 9.32. The charge accurately applies the law that appellantlegally may use deadly force againstthe complairnantto escapefrom being the victim of a crime before or during the commission of that crime.

Thomasv. State,578S.W.2d691,698 (Tex. Crim. App. 1979).

Appellant did not have any motive or reasonto strike the complainant with the hammer other than the fact that he had been se><uallyassaultedthe at the time of the previousday and was in the grips of being sexuallyassaultrsd killing. A rational jury could not have found beyond il reasonabledoubt against appellant on the issue of self-defense.Appellant explained that the complainant, at the time of the killing, was restraining appellant and attempting to rape him again. (RR IV 146-147). That is the sole reason appellant grabbedthe hammer and struck the complainant on the neck two times.His intent was not to kill him. but to defendhimself from anothersexual assault. A11appellantwanted was for the complainantto get off of him and not sexually assaulthim again. (RR IV 150). The fact that appellant only struck the complainant two times with a hammer proves thLathe did not intend to kill *re complainant,but only actedin self-defense.If erpersonintendedto kill another, it is highly likely that one would use much more force and

violencethanonly two hammerstrikesto the neck.If appellanthadthe intent to kill, Mr. Taylor would havehad manymore injuriesto his body.Frankly, thereis no evidencein this caseto disprovethat appellantdid not act in self- defense.Self-defense is theonly logicalexplanation for whathappened.

Therefore,sincethe evidencedid not provebeyonda reasonable doubt that the defendantwas not actingin self-defense on saidoccasionandunder the circumstance, the defendantis entitledto the benefitof that doubt.Thus, the Court of Appealserredin finding the evidencesufficientto supportthe verdict.Appellantshouldbe acquittedby this Court.

Conclusionand Praver

Appellantpraysthatthis HonorableCourtgrantApp,ellant's Petitionfor Discretionary Review,reversethe decisionofthe Courtof rA.ppeals, andacquit Appellant.

RespectfullySubmitted, z/f"*aQ*a JeraldK. Graber Franklin,Suite510 Houston,Texas 77002 7r3-224-232',.' Attomeyfor,Appellant T4 I, JeraldK. Graber,do certifu that this on is in compliance with Rule 9 sincethe entire documentconsistsof 25 words and is type4 using l4-point font.

partiesvia e-file: Alan Curry HarrisCountyDisfict Attorney'sOffice 1201Franklin,6* Floor Houston,TX 77002 Lisa McMinn StateProsecutingAttorney P.O.Box 13406 Austin,Texas 787IL-3046

Affirmed and MemorandumOpinion filed November10,:2015.

In The lfisurttenth @uurtuf AffBulr NO. 14-14-00844-CR JUSTIN ROSSALLEN, Appellant v. THE STATEOF TEXAS,Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court CauseNo. 1407495

MEMORANDUM OPINION

Appellant appealshis conviction for murder.In two issueshe challengesthe sufficiencyof the evidenceto supportthe conviction.We affi.rm.

I. F.lcruAL ANDPnocnouRAl BAcKGRoIUND Appellant and severalco-workerswere stayingat a motel in Houstonwhile working on a constructionjob. Appellant's father was the supervisor.Appellant and the complainantwere staying in the samemotel room. On the night of the offense,appellant,the complainant,anda co-workernamed(SermanAguilar were working the night shift. In the early morning hours appellantcameto his father's motel room and told his father that the complainantwould not be reporting for work the next day becausehe was deadin appellant'smotelroom.

When Harris County SherifPsdeputiesarrived,appellant'sfather directed the investigationtoward appellant'smotel room. Inside the deputiesfound the complainant'sbody wrappedin a blanketon the floor. The deputiesdid not see appellant,and advisedthe dispatcherthat appellantwas a suspectand that he was not at the scene.The deputiesalso discoveredsheets,pillowcases,and a pillow from the bed in the bathtubwith soapywater. The bed that the complainanthad occupiedduringthe motel stay did not haveany bedding.The otherbed, in which appellanthad beensleeping,still had beddingon it. The complainanthad wounds to be stabwounds. to the backof his neckthat initially appeared After getting a searchwarrant,law enforcementofficers searchedthe motel room and discovereda hammerinside of two trashbags.The:hammerappearedto have been placed in a clear plastic bag and then the clearrbag containingthe hammerhad beenplacedin a blackplastictrashbag.The officersdiscoveredblood on the headboardof the complainant'sbed and on the sheet covering the complainant'sbody.The complainant'sbodywas fully dresserd.

Becauseappellanthad left the scene,the Harris Cor.rnfycanine unit was calledout to help searchfor him. The canineunit reportedto the La Quintamotel, whereappellanthad last beenseen.Whenthe searchdog alertiedon appellantin the high grass of a retentionpond near the motel, the canine handler shined his flashlight and saw appellantlying on the ground. Becausethe dog is trained to engagewith the suspect,the dog bit appellant.The handlerdiidnot instructthe dog to release appellant until appellant was handcuffed. Later, appellant received treatmentat the hospitalfor the dog bite.

Appellant's Testimony Appellant testified that he and the complainanthad been roommatesfor approximately three weeks. According to appellant, thr: complainant often mentioned his lack of sexual intercourse,showeredwith the door open, and masturbated approximately every other day. Appellant testified that the complainant'sconductmadehim uncomfortable.

According to appellant,the complainanttook sleepi.ngmedicationevery night. On the night before the offense,appellantand the complainantreturnedto the motel from the night shift. The complainanttook a showerwhile appellant madea sandwich,dranka beer,andbeganto watchtelevisiorr.Appellanttook a sip from his secondbeer when he decidedto take a shower.Appellant left his open beer in the room while he was in the shower. After gettir:Lgout of the shower, appellantdrankthe restof the secondbeerandthendranka third beerbeforegoing to bed. Appellant testified that he felt more groggy than usual after drinking three beers.At somepoint after going to bed appellantwas awakenedby a handon his shoulder.When appellantawoke he discoveredhis underwearand pajamapants were pulled down to his ankles.He also heardthe complainantclimbing into the complainant'sbed.Appellantfelt what he thoughtwas semenon his buttocks.

Appellant woke up late that afternoonand preparedfur the night shift. The shift endedearly becausea part on the machinethey were using broke. Appellant, the complainant,and Aguilar returnedto the motel. Appellant askedAguilar for the keys to Aguilar's van from which appellantretrieved a battery chargerfor a power tool and a hammer.Appellant returnedto the motel room and placed the battery charger and hammer on his bed. After approximatelyfive minutes the complainantgrabbedappellantin a "bearhug," andthe two menfell onto the bed.

The complainant was on top of appellant and began '"humping" appellant.

Appellant grabbedthe hammerand hit the complainanttwioe in the back of the head, which causedthe complainantto fall onto the bed. Appellant moved the complainant'sbody to the floor and coveredhim with a sheet.Appellanttook the other sheetfrom the bed, put it in the bathtub,and turned onLthe water. Appellant then walked to his father's room and reportedthat the complerinant would not be at work that day becausehe was dead.Appellant'sfathertold appellanthe would call 911. Appellantthen returnedto his motel room, drank approximatelyfour beers, smokeda cigarette,and placedthe hammerinsidetwo plastic bagsin the trash can of his motel room. When appellantsaw the police arrive, h,efled to a nearbyLa Quintamotel,jumpedover a fence,andhid in a retentionponduntil the canineunit foundhim.

appellanttestifiedhe did not rememberclosing the On cross-examination trash bag that containedthe hammer,nor did he remembertaking the pillow from the bedout of the pillowcaseandplacingthe pillowcaseandprillowin the bathtub.

State'sRebuttalEvidence The forensic sexual assaultnurse examinertestified that she performed a physicalexaminationon appellantwhile he was sedatedin surgery.tHer physical examinationrevealedscratcheson appellant'srib cage,but no evidenceof sexual trauma.After appellantwoke from surgery,the nurseattemptedto obtain an oral history from appellant.Appellant replied,"I prefer not to talli aboutit, not without my lawyer present."The nursereportedthat appellant"becamevery tearful," and statedhe did not want to talk about the alleged sexual assilult at that time. The nursetestified that it was not uncommonfor a victim of sexualassaultto become tearful. ' Appellantrequiredsurgeryas a resultof the dog bite.

II. Issuns Arlo AN.q.Lvsrs Appellant presentstwo issueson appeal.He assertsthat the evidenceis legally insufficientto supporthis convictionin that (1) there is no evidenceof intent to murder,and (2) the Statefailed to sufficiently refute appellant'sevidence of self-defense.

Appellant argues that the trial court erred in den'ying his motion for instructedverdict becauseat the close of the State'scase-in-chiefthe Statehad provedonly that (1) the complainantdied from blunt force trauma,(2) appellant told his father that the complainant"wasn't going to make it to work the next day becausehe was deadin a blanketin a motel room," and (3) appellantwas located andarrestedoutsideof the motel.

A challengeto the trial court'sruling on a motion for an instructedverdictis in actualitya challengeto the sufficiencyof the evidenceto supportthe conviction.

Cook v. State,858S.W.zd467,470 (Tex. Crim. App. 1993).Therefore, when consideringwhether the trial court erred in overruling a motion for instructed verdict,the reviewingcourt is not limited to a review of the ,evidence presentedin the State'scase-in-chief.Id. We will considerappellant'sissuesin light of the well-established standardof review applicableto a challenger to the sufficiencyof the evidenceto supporta conviction.

In evaluatinga challengeto the sufficiency of the evidencesupportinga conviction,we view all of the evidencein the light most favorableto the verdict.

Wesbrookv. State,29 S.W.3d 103, 111 (Tex. Crim. App. 2000).The issueon appealis not whetherwe, as a court, believethe State'sevidenceor believethat appellant'sevidenceoufweighsthe State'sevidence.Wickerv. State,667 S.W.2d 137,143 (Tex. Crim. App. 1984).The verdict may not be c,verturned unlessit is by proof beyonda reasonable irrationalor unsupported doubt.Matsonv. State,8l9 S.W.2d839,846 (Tex.Crim.App. 1991).Thetrier of fact 'oisi the solejudgeof the credibility of the witnessesand of the strengthof the evidence."Fuentesv. State, S.W.2d267,27I (Tex. Crim. App. 1999).The trier of fact may chooseto believeor disbelieveany portion of the witnesses'testimon;r.Sharpv. State,707 S.W.2d6lI,614 (Tex. Crim. App. 1986).When facedwith conflictingevidence, we presumethe trier of fact resolved conflicts in favor of the prevailing party.

Turro v. State,867 S.W.2d 43, 47 (Tex. Crim. App. 1993).Therefore,if arry rationaltrier of fact couldhavefoundthe essentialelementsof the crimebeyonda doubt,we must affirm. McDuff v. State,939 S.W.zd 607,614 (Tex. reasonable Crim. App. 1997).

A. Is the evidencesufficient to support the jury's finding that appellantintendedto kill the complainant?

A personcommitsthe offenseof murder if he intentionallyor knowingly causesthe deathof an individual or intendsto causeseric,usbodily injury and commits an act clearly dangerousto human life that calses the death of an A personactswith (2)(West20l1). individual.Tex. PenalCodeAnn. $ 19.02(bX1), intent"with respectto the natureof his conductor to a resultof his conductwhenit is his consciousobjectiveor desireto engagein the conductlor causethe result." Tex. Penal Code Ann. $ 6.03(a) (West 20Il). A person acts knowingly with respectto his conductwhen that personis awarethe conductis reasonablycertain to causethe result.Tex. PenalCodeAnn. $ 6.03(a).

The Stateinitially arguesthat appellant'sfirst issue should be overruled Becausean becauseappellanttestifiedhe committedthe offensein sell'-defense. is an intentionalact,the Statearguesappellantcannotchallenge act of self-defense the sufficiencyof the evidenceto supportintentto kill the complainant.The Court of Criminal Appealsof Texas,however,has held that the PenalCode doesnot require that a defendantintend the death of an attacker for the appellantto be justified in using deadlyforce in self-defense.

Alonzo v. Stctte,353S.W.3d778, (Tex. Crim. App. 2011).Therefore,appellantmay arguethat he actedin self- defense,but, in doingso, did not intendto kill the complainant.

Intent, being a questionof fact, is in the sole purview of the jury. Brown v. Stote,122S.W.3d 794,800(Tex.Crim.App. 2003).A jury rnayrely on collective commonsenseand commonknowledgewhen determiningintent.Ramirezv. State, 5.W.3d725,729(Tex.App.-San Antonio2007,no pet.).Intentalsomay be infened from the circumstantialevidencesurroundingthe incident,which includes acts, words, and conductof the accused.See Tex. Code Crim. Proc. Ann. art. 38.36(a)(West 2005);Patrick v. State,906 S.W.zd 481,tl87 (Tex. Crim App. lee5).

Thejury heardevidencethat duringthe day,beforethe,complainant'sdeath, appellantretrieveda hammerfrom Aguilar's truck. Appellant admittedhitting the complainantin the back of the headwith a hammer.Appellant testified that after he struck the complainantwith the hammer,he strippedthe sheetsfrom the bed and placed them in the bathtub with soap and water. Appellant also admittedhe wrappedthe hammerin two trash bags and placedthem in the motel room trash bin. Appellantthen fled the motel wherethe complainantwas killed and hid in a retentionpond until a Sheriff s office canineunit found him. "Attempts to conceal incriminating evidence,inconsistentstatements,and implaursibleexplanationsto of guilt." the police are probativeof wrongful conductand are also circumstances Thejury couldhave Guevarav. State,152S.W.3d 45,50 (Tex.Crim.App. 2004)t. infened intent from the evidenceof appellant's(1) acquisitionof the murder weapon earlier in the day, (2) attemptsat concealment,and (3) flight from the scene of the offense that he intended to kill the complainant.See id. Finding sufficient evidencethat appellantintentionallycommittedan act clearly dangerous to humanlife, we overruleappellant'sfirst issue.

B. Is the evidencesufficient to support the jury's rejection of appellant'sself-defense theory?

In his second issue appellantarguesthere was insufficient evidenceto "disprove" self-defensebeyonda reasonabledoubt.The State,however,was not requiredto "disprove" self-defense.Becauseappellantraisedthe issue of self- defense,the Statehad to prove the elementsof the offensebeyond a reasonable doubt, and the State had to persuadethe jury that appellantdid not kill the SeeZuliani v. State,97 S.W.3d589, 594 (Tex. Crim. complainantin self-defense.

App. 2003).A defendanthasthe burdenof producingsomeevidenceto supporta Zuliani, gT S.W.3dat 594.Oncethe defendantproducesthat claim of self-defense. evidence,the Statethen bearsthe burden of persuasionto disprovethe raised defense.Id. The burden of persuasiondoes not require the State to produce evidence;it requiresonly that the Stateprove its casebeyonda reasonable doubt. Id. A determination of guilt by the factfinder implies a finding against the defensivetheory.Id. A personis justified in using deadlyforce againstanotherwhen and to the to degreethe personreasonablybelievesthe deadlyforce is immediatelynecessary prevent the other's imminent commissionof sexual assault.Tex. Penal Code g 9.32(a)(2XB)(West 2011).In resolvingthe sufficiency-of-the-evidence issue,we look not to whetherthe Statepresentedevidencethat refuted appellant'sself- defensetestimony,but ratherwe determinewhetherafter viewing all the evidence in the light most favorableto the prosecutioo,ffiy rational trier of fact would have found the essentialelementsof murder beyonda reasonabledoubt and also would have found againstappellanton the self-defenseissuebeyon.da reasonabledoubt.

SeeSaxtonv. State,804 S.W.2d 910,914 (Tex. Crim. App. 1991);Hernandezv.

State,309S.W.3d661, 665 (Tex. App.-Houston [14th Diist.]2010,pet. ref d). with the physicalevidenceat the Defensiveevidencethat is merelyconsistent scene will not render the State's evidence insufficient rsincethe credibility determinationof suchevidenceis solelywithin the jury's provinceandthe jury is freeto acceptor rejectthe defensiveevidence.Saxton,804 S.'W.2dat914.

Appellant arguesit was unreasonablefor the jury to have rejectedhis claim of self-defensebecausehe had no motive to kill the cormplainant.

Appellant contendsthat the only reasonhe struck the complainantwitlh the hammerwas in self-defense.The jury also heard evidencethat appellantretrievedthe hammer from his co-worker'struck and placed it on the bed in the motel room. The complainantwas struck in the back of the head, which is inconsistentwith appellant's testimony that the complainant approachedhim from behind.

Moreover, the physical evidencerevealedblood spatteron the complainant's headboard,but not on the bed in which appellanthad beensleeping.The bedding was still on appellant'sbed,but had beenremovedfrom the complainant'sbed and placedin the bathtub.

in the evidenceandthe witnesses'testimony Any allegedinconsistencies SeeLanconv. State, concernthe credibilityandweightto be giventheir testimony,, 253 S.W.3d 699,705-07(Tex.Crim. App. 2008).To the extentthe testimonyis inconsistent,thejury, asthe trier of fact, had the ultimateauthLority to determine the credibilityof witnessesandthe weightto be givento their testimony.SeeTex. (Tex.Crim.

CodeCrim.Proc.art.38.04;Garciav.State,919S.W.2d370,,382n.6 in the evidenceshouldbe resolvedin favor of the App. 1996).Any inconsistencies jury's verdictin a sufficiencyreview.Morenov. State,755S.W.2d866,867 (Tex. Crim.App. 1988);Draperv. State,335S.W.3d 412,415(Te>r. App.-Houston [14thDist.] 2}tl,pet. refld).

Consideringall of the evidencein the light rrlostfavorableto the verdict, we conclude the evidence is sufficient to support rtlrejury's implicit rejection of, appellant'sclaim of self-defenr..Wr ovemrleappellant'ssecondissue.

Having overruledall of appellant'schallengeson appeal,we affirm the trial court'sjudgment.

lsl KemfihompsonFrost ChiefJlustice

Panelconsistsof Chief JusticeFrost and JusticesC[ristopher andDonovan.

Do Not Publish- Tex. R. App. P. 47.2(b).