## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00140

- CR

ERIC MONTGOMERY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 22

- F0178

- 00 5

Be fo r e Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION A Bowie County jury convicted Eric Montgomery of aggravated assault with a deadly
weapon and possession of a deadly weapon in a penal instituti on . See T EX
. P ENAL C ODE A NN
. § 22.02 (Supp.) , § 46.10. 1 On appeal, Montgomery argues that the evidence is insufficient to support the jury’s rejection of his self

- defense claim. Because we disagree, we affirm the trial court’s judgment.
I. The Law of S e l f

- Defense “[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other ’ s use or attempted use of unlawful force.” Williams o n v. Sta t e , 589 S.W.3d 292, 296 (Tex. App.

— Texarkana 2019, pet. ref’d ) (alteration in ori g in al) (quoting T EX
. P ENAL C ODE A NN
. § 9.31(a) )

. U se of deadly force is only “ justified if use of force would be justified under Section 9.31, and

‘ when and to the d e gree the ac t or reasonably believes the deadly force is immediately
necessary . . . to protect the actor against the other ’ s use o r attempted use of unlawful deadly force. ’” Id. (quoting T EX
. P ENAL C ODE A NN
. § 9.32(a)(2)(A ) ). The Texas Penal Code defines

“ [ r ] eas o n ab l e belief

” as “ a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. ” Id. (quoting T EX
. P ENAL C ODE A NN
. § 1.07(a)(42 ) ).

“ Under certain circumstances, the actor ’ s belief that deadly force w a s immedi atel y

nece s sa r y is presumed to be reasonable. ” Id. at 296

– 97. Some of these circumstances include when (1) the actor “knew or h ad reason to believe that the person against whom the deadly force

1 The jury assessed a sentence of ten years’ imprisonmen t for th e aggravated assault and five years’ imprisonmen t f or possession of a deadly weapon , with t h e senten ce s to run concurrent ly

.3

was used” “ was committing or attempting to commit ” m urder or se xual as s au l t , (2) the actor “ did not provoke the person against whom the force was used , ” and (3) the actor “ was not

. . . engaged in c riminal activity, other than a Class C misdemeanor ” or a traffic violation. T EX
. P ENAL C ODE A NN
. § 9.32(b)

. II. The Evi denc e at Tr i al The evidence at trial showed that Darrius Nichols and Montgomery were cellmates at the Telford Unit. Nichols testified that he decided to clean out his cell locker and placed his belongings, including a homemade knife , in to a bag

. Before discardi n g t he bag, Nichols handed it t o Montgomery in case he wanted to keep anything for himself

. According to Nichols , Montgomery retrieved the knife and stabbed him in the chest. Nichols testified that he and Montgomery started figh ting and that he w as “stab b ed a couple more times in the process of trying to get the knife out o f [Montgomery’s] hand.” Nichols also said that he was not able to get the knife from Montgomery. Festus Ofeinmen, a correctional officer for the Te xas Depa rtment o f Criminal Ju stice,

r e sp o nded to the commotion caused by the fight. Ofeinmen testified that Montgomery and Nichols admitted that they were fighting. Of ei nmen and Willia m Buttram, an investigator for the Office of the Inspector Ge neral, b oth testified that Mon tgomery surre nde r ed the k nife to correctional officers. Buttram said that the knife was capable of causing death or serious bodily injury.
Buttram visited Nichols in the infirmary and photographed his multiple stab woun ds , which were shown to the jur y. Nichols w as st abb ed i n the chest, head , neck, shoulder , arms4

abdomen, and back . According to Buttram, the two wounds to Nichols’s back indicated that he

was trying to get away from Montgomery. Buttram als o visite d Montgomery in the in firmary, but both Buttram an d N i ch ols t es tified that Montgomery had no injuries. Nichols, who had testified that he and Montgomery had no major issues before the incident, opined that the atta ck happened because Montgomery “w as on dr ug s . . . [that] had h im tripping.” Nichols testi fie d
t hat h e had no weapon and did not try to assault Montgomery. Buttram testified that he saw nothing that in dicated Montgomery acted in self

- de fense. Even so, to support his claim of self

- defense , Montgomery testified to the following: [Nic h ols ] brought th e wea po n into the cell, he told me he was gonna get rid of the knife. He made an attempt to get rid of the knife. He turned aroun d and told me that he got rid of the weapon and when I l ooked up [,] he was walking beh ind me with a knife. A n d I too k the kn if e a wa y from him and that ’ s the incident

. . . . Montgomery testified that he had no issues with Nichols before the incident but explained that he felt threatened after he saw Ni chols wi th the knife , which Nichols claimed he had th r own away. Montgomery sa id th at Nichols wa s much larger in stature and that , as a result, he kept stabbing Nichols because he feared what would happen if Nichols regained control of the knife. Montgomery admitted that he turne d the knife ov er to responding o fficer s. I II. Stand ar d o f Review

“ In evaluat ing legal sufficiency, we review all the evidence in the light most favorable to the trial court ’ s judgment to determine whether any rational jury could have found the esse ntial el ements of t h e offense beyond a r easona ble doubt. ” Wi lli am son , 589 S.W.3d at 297 (citing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2 010) ( plurality op

. ) ( citing Jackson v. Virginia , 443 U.S. 307, 319 (1979) ) )

. “ Our rigorous [legal suffic iency] review foc u s es on t he5

quality o f the evidence pres en ted

. ” Id. (citing Broo ks , 323 S.W.3d at 917

– 18 (Cochran, J., concurring ) ). “ We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘ to fai r l y resol ve conflicts in te stimony, to

w ei gh th e evidence, and to draw reasonable inferences from basic facts to ultimate facts. ’ ” Id. (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at
318

– 19 ) ) ; see Clayton v. S tate , 235 S.W .3d 772 , 778 (Te x. Crim. A pp . 2 00 7)

.

“ In drawing reasonable inferences, the jury ‘ may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life. ’ ” Id. (quoting
Duren v. State , 87 S.W. 3d 719 , 724 (T ex. App.

— Texarkan a 2002, pet

. str uc k) (citing Manriq u e v. State , 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring) ) ). “ The jury is als o the sole judge of the credibility of the witnesses and the weight to be given their testi m ony and may ‘ believe all of [the] witne ss es ’ t estimony, portion s of it, or none of it. ’ ” Id. (quoting Thomas v. State , 444 S.W.3d 4, 10 (Tex. Crim. App. 2014 ) (alteration in original) ). “ W e give

‘ almost complete deference to a jury ’ s decision when that d e cis ion is b ased upo n an eval uation of cr edi bi lity. ’ ” Id. (quot i ng Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) )

.

“ It is not required that each fact ‘ point directly and inde pendently to the guilt of the appellant, as long as the cumulative f orc e of all the inc riminatin g circumst an ces i s sufficient to

su p port the conviction. ’ ” Id

. (quoting Hooper , 214 S.W.3d at 13) . “ Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be

e sta blished by circu mstantial evidence al one . ” Id. (citing Rams e y v. State , 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper , 214 S.W.3d at 13 )

.6

“ Legal sufficiency of the evide nce is measured by the elements of the offense as defined by a hypotheticall y co rrect ju ry charg e. ” Id. at 298 (ci ti ng Ma lik v. State , 953 S .W.2d 234, 240 (Tex. Crim. App. 1997 ) ). The “ hypothetically correct ” jury charge is “ one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase th e State ’ s bu rden of proof or unnecessar il y r es trict the State ’ s t heories of liability, and adequately describes the particular offense for which the defendant was tried. ” Id

. (quo ting Malik , 953 S.W.2d at 240 ).

“ In evaluating a claim of insufficient ev i d ence in the context of a self

- defense is sue , we apply the gener a l sufficiency review principles set forth above, in conjunction with sufficiency review principles specific to self

- defense. ” Id. (citing Braughton v. State , 569 S.W.3d 592, 609 (Tex. Crim. A pp . 201 8 ) ). “ When ther e is a claim of s elf

- d efense

. . . to ju s tify use of force or deadly force against another, ‘ the defendant bears the burden to produce evidence supporti ng the defense, while the State bears the burden of persuasion to disprove the r a ised is sues . ’ ” Id. (quo ting Braughton , 569 S .W.3d at 608 (citin g Zuliani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) ) ) . “ The defendant is required to produce ‘ some evi dence that would support a rational finding in his favor on the defensive issu e . ’ ” Id

. (quo ting B raugh ton , 569 S.W. 3 d at 60 8 ). “ The State is n ot required to produce evidence; rather, its burden of persuasion only requires ‘ that the State prove its case b eyond a reasonable doubt. ’ ” Id

. (quoting Braughton , 569 S.W.3d at 608 ). As a result , [ i]n re solv ing th e sufficiency o f t he evidence issue, we l ook not to whether the State presented evidence which refuted appellant ’ s self

- defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable t o the pro secuti on, any ra tional trier of fa ct would have found th e essential elements of [the offense] beyond a reasonable doubt and also would have found against appel lant on the self

- defense issue beyond a reasonable doubt.7

Id

. (alterations in original) ( quoting Braughton , 569 S .W.3d at 609)

. “ F ur ther, as with the
ge n eral sufficiency principles, the trier of fact is the sole judge of the credibility of defensive evidence, and it is free to ac cept it or reject it. ” Id. ( citing Braughton , 569 S.W. 3 d at 6 0 9 ).

“ Self

- defens e is a fact issue tha t is de termined by the jury , and ‘ [a ] jury verdict of guilty is an implicit finding rejecting the defendant ’ s self

- defense theory. ’ ” Id

. (alteration in original) (quoting Braugh ton , 569 S.W.3d at 609).
I V . A n alysis Under the indic tm ent for aggravated as sa ult , the State was requ i red to prove that Montgomery , while using or exhibiting a deadly weapon, “ intentionally, knowingly, [or] recklessly cause [d] bodily injury to DARRIUS NICHOLS by striking [him] about t he bod y with sharpened m et al

. ” See T EX
. P ENAL C O DE A N N
. § 22.0 2. Under the indictment for deadly weapon in a penal institu tion , the State had to prove that , while confined in the Telford Un it, Montgomery intentionally or knowingly pos s ess ed sharpened metal that was capable of causing death or serious b odi ly injury in the manner o f its use or intended use. See T EX
. P ENAL C ODE A NN
. § 1.07(a)(17) (Supp.) , § 46 .10

. Here, Buttram testified that the knife was capable of causi ng seri ous bodily injur y or death. Ni chol s described the attack in detail , and M on tgo me ry admitted that he use d the kni fe to stab Nichols multiple times while housed in the Telford Unit. This evidence alone was sufficient to establish the elements of aggr avated assault and dead ly weapon in a pen a l institution. Even so, Montgomery ar gu es th at the jury’s rejection of his c lai m of self

- defense was not supported by the record. We disagree.8

The jury heard two version of events. One from Nichols and another from M ontgomery. As t he triers of f

act, the jury was free to reject Montgomery ’s se lf

- serving version in fav or of Nic hol s’s testimony that he had no weapon when he was attacked by Montgom ery, who appeared to be on drugs. The rejection of Montgomery’s se lf

- defe nse claim was suppor ted b y Buttra m’s testimony that Montgomery suffered n o inj ur ies due to the mele e and tha t Buttram ’ s investigation revealed no sign s of self

- defense. Moreover, ev en presuming that Montgomery’s initial use of deadly force was reas ona ble, the use of dead ly force wa s justified “to the degree [Montgo mery] r ea sonably b elieve [d] the deadly for ce [was] imm ediately necessary ” to protect himself from Nichols’s use or attemp ted use of unlawful deadly force. T EX
. P ENAL C ODE A NN
. § 9.32(a)(2 ) ( emph asis added)

. Th e jury was free to determine that , after Nich ols was i nitiall y stabbed and without any w eapon, Ni cho ls no longer posed any deadly threat to Montgomery, who continued t o stab Nichols. “Self

- defense implies defensive and not offensive ac ts. Whe n the ac ts of a n accused cease to be defensive and take o n the o ff

ensive, t hen he becomes the aggres sor and i s n o longer acting in self

- defense.” Witty v. State , 203 S.W.2d 212, 2 18 (Tex. C rim. App. 1947) ; see Gibson v. State , 202 S.W.2d 236, 2 37 ( Tex. Cri m. App. 1947) ( T he acts consti tuting self

- defense “must n ot exce ed the bo un ds of defense and prevention. The re must be an apparent necessity to ward off by force an unlawful act. It is a right based up on necessity.”); see also Lozano v. S tate , 63 6 S.W.3d 25, 3 4 (Te x. Crim. App. 2021) (noting that defendant “mi ght hav e shot [v ic tim] once in self

- defense, then co nti nued shooti ng even though he knew [ the victim] was no longer a threat”). Because of9

Nichols ’ s multip le wounds, including two woun ds to th e back, the jury was free t o f ind that Montgomery became the ag gressor . In su m, we conclude that the jury’s rejection of Mo ntg omery’s sel f

- defense claim was supported by the evidence. As a result, we overrule Montgom ery’s so le point of error. IV. Conc lusion We affirm the tria l c ourt’s judgment.

Charl es van Cl eef Justice Date Submitted: December 7, 2023 D ate Decided: January 10 , 2 024 Do Not Publish