1 John T. Boyd, Chi ef Justice (R et.), Se venth Co urt of Appeals, si tting by

assignment. Tex. Gov’ t Code Ann. §75.002( a)(1) (Vernon Supp. 2006). NO. 07-04-0500-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E OCTOBER 26, 2006

______________________________ MATTHEW GONZALES, a.k.a. MATHEW GONZALES, APPELLANT
v. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 251 st DISTRIC T COURT O F POTT ER COUNTY; NO. 48,924-C; HON. PATRICK A. PIRTL E, PRESIDING

_______________________________ Before QUINN, C.J., CAMPBELL, J., an d BOYD, S.J. 1 In this appeal, appellant Matthew G onzales chal lenges hisconvicti on of the offense of aggravated assault with a deadly weapon and the ensuin g j ury-ass essed punishment of nine years

confinement

in the Instit utional Div ision of the Texa s Department of Criminal Justice. In pursuing thatchallenge, and in one point, appellant asse rts that the evidence
was factually i nsufficient to sustain the jury’s implied finding that appellant’s use of deadly force was not

justified. D isagreein g, we affirm t he judgment of the tr ial court.2

The nature of appellant’ s challeng e requires us to recount pertinent port ions of the evidence. On April 1, 20 04, a store belo nging to Mo P ham (Mo), loca ted i n Pot ter Co unty,
was burglari zed. Tuan Ng uyen and Tuan Luu, fri ends of Mo’s son Vi n, were dr iving by the store and saw a vehicle that had apparently been rammed into the fro ntdoor of the store. The two went to Mo’s hou se an d to ld him that they had seen some one breaking into his store. Mo immediatel y went to the store and, when he arrived, saw that it had been br

oken into. The re was abou t four or five thousand dollar s damage to the s tore building with various i tems of his stock , including some lighter s, having been stolen. As Vin and his friend Isaac Saavedra (Isaac) were sitting on the front porch of Mo’s house, the two Tuanscame and told them that Mo’s s tore was being burg larized. Vin and Isaac imme diat ely dro ve to t he st ore, foll owed b y the t wo Tuans. As they arrived, th ey saw the front door of the buil ding had been br oken into and ther

e was a green car

occupied by two males at the scene. Vin ran tothe car, and ashe did so, the car , later deter mined to be driven by

appellant, took

off. Vin, accompanied by the other three y ouths, pursued th e car driven by

appellant. The ch ase took place a t a high ra te of speed and, as Vin caug ht up to the car, i t “spun out” a nd went in aditch. Appell ant’s car stayed in the ditch for a brief period during w hic h thepass eng er, lat er d eter mine d to b e app ell ant’ s br othe r, r an off

. During the chase, Taun Nguyen had called the pol ice on a cell phone and told them w hat
was going on. The police told him not to chase the fugitives, but the youths continued to do so. As the car was in the ditch, the youths, swing ing their belts wi th Tuan Luu swi nging
a jumper cable, surrounded the car and, as they approached it, shouted to appella nt to get out of the car. They

also tried to block the car but wer e unable to do so.3

However, appella nt bran dishing a knife with a three-inch blade, somehow managed to get his car in motion and drove it on down the ditch a half mile or so befo re it came to
a rest wi th its w heels flattened. The car could not be driven any further, and appellant crawled out of the passenger s ide of the car and s tarted running aw ay. As he di d so, he
was pursued by Vin, Isaac, and Tuan Nguyen. The trio m anag ed to surround a ppellant and again had their belts off . Appellant told them to “[s]ta y back” and “[y]ou have got my
car already, got my fing erprints and everyt hing.” Vin and Isaac were swinging their belts and Tuan Nguyen had his jumper cables. Their avowed intent wasto stop appella nt and “try to put him on the g round.” While appellant was swinging the knife, Vin was cut on his right middle finger. Vin hit appellant with the belt buckle on the hea d. Appellant “g ot mad” and attacked Isaac who was the closest to him. Isaac tried to run away from ap pellant but fell down, appell ant jumped on Isaac and stabbed him. The s tab wound was on the lower left side of Isaac’s back

and requir

ed ten stitches. As he did so, Vin got on top of appellant and was hitting him with the belt. However, appellant managed to elu de his pursuers and got away fro m them. He wa s later found by an Amari llo police officer walking in a bar ditch
some distance away from the open fiel d in whi ch the stab bing inci dent occurred. At the time he was apprehended, he was not wear ing a shir t and had a gash in his forehead. Standard of Revi ew In the seminal case of Clewisv. State , 922 S.W.2d 126 (Tex. Crim. App. 1996), the court instr ucted that in r eviewi ng the factual s ufficiency of the elements of an of fense on appeal, a court of appealsmust view “all the ev idence wi thout the prism of ‘in the light most favorable to the prosecution’ and ma y only set aside the jury verdict when itis so contrary to the overw helming weight of the ev idence as to beclearly wrong and unjust.” Id. at 129.4

In additional explication, in Cain v. State , 958 S.W .2d 404 (Tex. Crim. App. 1997), th e court opined that the court of appeals may onl y exer cise its fact jurisdict ion to prev ent a manifestly unjust resul t and is not free to set aside a jury verdict merely because the court feels that a different res ult is more r easonable. Id. at 407. Moreover, it continued, a court of appe als m ust s upp ort a find ing of fac tual insu ff icien cy by provid ing a detai led explanation of that finding so that the Court of Criminal Appeals c an ensure tha t the appellate court accor

ded proper deference to th e jury finding and why that finding is
ma nifestly unjust, shock s the conscien ce, or clearly manifests bias. Id. Additionall y, i t said, the court of appeals shou ld state i n what regard the contrary evidence greatly outweigh s the evidence in support of the verdict. Id. ; see also Watson v. State, No. PD4 69-05, 2 006 Tex. Crim. App. LEXIS 2040 at *3 9 (Tex. Crim. App. Oct. 18, 2006); Johnson v. State , 23 S.W .3d 1, 11-12 (Tex. Crim. App. 2000 ). In Santellan v. St

ate, 939 S.W .2d 1 55 (T ex. Crim. App. 199 7), the court cautioned that in performing our fa ctual sufficiency review , we must beg in with the assumption tha t the evidence i s legall y sufficient and then consider a ll the evi de nce in t he record rel ated to an appellant’s

factual sufficiency

challenge, not just the ev idence whi ch supports the verdict. It reminded us thatan appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact i n dispute and compar es it to the evidence w hich tends to di sprove thefact. Id. at 164. And, the court furt her opined, our factual sufficiency review must be appropri ately deferenti al so as to avoid s ubstituting our own judgment

for that of the factfinder no r may we substantiall y intrude upon the jury’s role
as the sole judg e of the weig ht and credibi lity of the w itness testi mony. Id. ; see also Sells5

v. State , 121 S.W.2d 748, 754 (Tex. Cri m. App. 2003)

. It is in the lig htof these somewhat cryptic pronouncements that

we must r

eview the evidence in this case

. Discussi on Reiterated, appel lant s uccinctly restates his

contention that r

eversal i s requir

ed because the evidence is factually insufficient to s us t ain the jury’s implicit rejection of his self-defense theo ry. In support of that theory, he c ites that port ion of Texas Penal Code §9.31(a) that provi des that a person is justified in using force against anoth er when and to the degree that

“he reasonably believes the force is immediat ely necessary to protect himself against the other’s use or attempte d use of unlawful fo rce.” Tex. Penal C ode Ann. §9.31(a) (Vernon 2003). He also relies upon §9.32 of the Code that provides a person is justified in using deadly force ag ainst anothe r (1) if a p erson woul d be justified i n using force against another under §9.31 , (2) if a reasonable person in the a ctor’s situation would nothave retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect hi mself against t he other’s use or attempted use of deadly force. Id. §9.32 (a). I n §9.01(3) of the Code, deadly force is defined as “force thatis intended or known by the actor to cause, or in the man ner of its use or intended use is capable of causing, death or serious bodily injury.” Id. §9.01(3). Appellant

argues that the evidence shows that he was hounded by thre e armed men, that he stopped periodic ally and ur ged them to dis continue the chas e, and that he verbalized this in so many wor ds by remi nding them that h is car, theproperty taken from the burglary , and his fingerprints on the stolen pr operty were left be hind and woul d be used against h im at a l ater date. Nevertheless, he continues, the t rio persis ted in the chase. Thus, the chase continued with the pursuers and the pu rsued stopping periodically to catch6

their breath, and, he r

easons, the constant posturing and warnin gs that were exchanged constituted more than sufficient proof that ap pellant, at the exact moment of inflicting the wound, could run no mor e. Therefore, he conc ludes, h e wa s entitled to use reasonable force to pro tect hims elf from the u se of unla wf ul deadly forc e by Isaac a nd those acting with Isaac. He ar

gues that the manne r in whi ch he inflicted only one sta b wound and the evidence about the actions of Vin and Isaac after

the fracas is con tra ry ev idence strong enough to make the jury’s implicit rejection ofself- defense irrationa l. In considering appellant’s argument, we must note §9. 41( b) of the Penal Code which providesthat a per son un lawfully dispossessed of tangible movable prop erty is justified in using force against the other “w hen and to t he degr ee the actor reasonably believesthe f orce is imm edia tely n eces sary . . . to recover the property

if the actor use s t he force immediately or in fresh pu rsuit after the dispossession a nd . . . the act o r reasonably believes t he other had no claim or r ight w hen he dispossessed the actor. . .

.

” Id. §9.41. Additi onally, and in relev ant part, §9.42 of the Penal Code prov ides that a person is justifie d in using deadly force ag ainst another to protect tang ible, moveab le property if he would b e justified in using force ag ainst the other , and “when and to the degree he reasonably believes that the deadly force is imm ediately necess ary . . . to prevent the oth er who is fle eing imm ediate ly after co mmitti ng a burglary . . . from escapi ng with the property

. . . and he rea sonably bel ieves that the property cannotbe protected or recovered by

any other means.” Id. §9.42(2). Sec tion 9.43 of the Code, again in r elevant part, providesthat a person i s justified i n using force or deadly for ce against a nother to protect tangible moveable prop erty of a thi rd person if under the circumstances as he reasonably believes them to be, the actor would be justified in using fo rce or deadly force7

to protect his own property and the actor reasonably believes the unlawfu l interfer ence constitutesatte mpt ed or cons umm ated thef t ofthe t angib le, m ovea ble p rope rty, or th e actor reasonably

believesthat“the third person whos e land or proper ty he uses for

ce or deadly force to protect

is the actor’s spouse, parent, or child, or resides with the actor, or is under the actor’s care.” Id. §9.43. Under this record, it is uncontradi cted that appell anthad burglarized Vin’s father’s store and during t he time in ques tion, he was fleeing the scene of that burglary. It is also uncontrover

ted that he was pursued by Vin and his compan ions. In the course of that pursuit, appellant drove his car to a place from which he could not extricate it. He vacated the car, and was pur

sued by Vin and his companionson foot. Under the law, in order to be entitled to use deadly force, ap pellant must have reasona bly beli eved that use of that
sor t of fo rce was

imme diately

nece ssar

y topro tect

hims elf. Althou gh appellant

contends that the use by him of theknife with a three-inch blade to stab Isaac was

justified because deadly force was be ing used ag ainst him, we disagree. W hile the evidence does show that his purs uers wer e swing ing their

belts wi th one of them swingi ng a battery cable, it doesnot contain a mor e detailed description of them. Neither the belts nor thebattery cable was a deadly weapon per se. The belts wer e described as “traditional with the little thing that sticks i nto the hole, ty pical belt buc kle,” or “ a lot of belt, butit had a small buckle, that’ s all.” That being true, and acting within its permissible discretion as the determiner of the f acts , the jury wou ld no t have exceeded that discretion in concluding that appellant’s pursue rs were not in unlawful pursuit of appel lant or in concluding that the force used by them was not of a nature that thre atened de ath or
se rious bodily i njury. That being true, it did not er r in its ob vious rej ection of app ellant’ s8

self-defense claim. Alt hough app e llant does not s pecifically challenge t he sufficiency of the evide nce o ther wise to sust ain h is con victio n, we h ave carefully reviewed it and find it to be sufficient. Acco rdin gly, appellant’s p oint of error i s overru led, and the judgment of the trial cou rt is affirmed. John T. Bo yd Seni or Justice Do not publish

.