### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00492- CV

In the Matte r of M. A. J.

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. J- 30,1 14, H ONO RAB LE W. J EANNE MEURER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
The district court, sitti ng as a juvenile court, adjudicate d M.A.J
. delinquent afte r finding that he had committed the offe nse of assault. See Tex. Penal Code Ann. § 22.01(a) (1) (West Supp. 2009). The juvenile court then transfe rre d the case to Wil l i am s o n C o u nty , wher e M.A.J
. resided, for d i s p o s i t ion. M.A.J
. appea ls from the order adjudg ing him delinquent. I n a 1 2 single point of err or, M.A.J
. asser ts that the evidenc e is fac tually insufficient to show that he did not act in self- defe nse. We will affirm the or der.
BACK GR OUND The juvenile court hea

rd evide nce tha t, on Febr

uary 8, 2009, M.A.J ., a 15-y ear -old boy , punched S.K., a 16-y ear -old boy , in the mouth. The issue at trial was whether S.K. pr ovoked M.A.J . and, if so, whe ther such pr ovocation justified M.A.J.’s use of forc e.

The orde r of disposition is not in the rec ord bef ore us. 1 See Tex. Fa

m. Code Ann. § 56.01(c )(1) (A) ( West S upp. 2009) (a uthorizi ng appea l from 2 order adjudg ing juve nile delinquent).S
. K. t es t i fi ed that, on the day of the incident, he was visiti ng some of his friends,

includi n g h i s g irlfriend, L .L ., at an apar tment complex when they walked past M.A.J ., who was sitti ng in the courty ard of the complex with his friend, A .V.C. As they wer e walking past M.A.J ., A.V.C. appar ently told M.A.J . that S.K. said “F **k Blue .” S.K. testified t hat he did not say that. 3 I n fac t, S.K. claimed that he did not reme mber say ing any thing to M.A .J
. Acc ording to S.K., afte r A.V.C. told M.A.J
. what S.K. had alleg edly said, M.A.J
. stood up, walked toward S.K., a sked him if he had made the statement, and, befor e S.K. could respond, hit him in the mouth, causing S.K. to fall to the g round.

L .L
. testified simil arly about the incident, althoug h she rec alled that, befor e M.A.J
. hit S.K., S.K. asked M.A.J ., “Ar e y ou rea lly g oing to believe what [A.V.C.] say s? ” After that, L .L
. rec alled, “[M.A.J .] just started hitting him.” When asked “who threw the first punch,” L .L
. testified, “[M.A.J .]” L .L
. denied that S.K. did any thing to provoke M.A.J
. L
. L
. al s o t est ified that, afte r M.A.J . hit S.K., A.V.C. admitt ed to M.A.J. t hat “she was just kidding” about what S.K. had sa id. M.A.J
. then helped S.K. to his fee t. L .L
. took S.K
. t o her house, wher e L .L .’s mother called the police. Ac cording to one of the of fice rs who re sponded to the ca ll, S.K. “had a lar g e lac era tion to his lip. I t was actua lly filleted open. He was bleeding profuse ly .” S.K. was transp o rt ed to the hospital, where he wa s treate d for his injuries.

A.V.C. also testified. She admitted that she had not hear d S.K. say “F **k Blue ” prior t o telling M.A.J
. that she had hear d him say that, althoug h she claimed that S.K. did say t h o s e words “like a second later.” Acc ording to A.V.C., she “alwa y s play s around with [M.A.J .] like that

“B lue” is a ref

ere nce to the g ang known as “Crips.” Acc ording to the office r who arr ested 3 M.A.J ., M.A.J . is a “self

-proc laimed” membe r of that g ang .

2and he knows I don’t mean it.” When asked “who threw the first punch” during the alterc ation,

A.V.C. testified, “[M.A.J .]” Howeve r, A.V.C. added that, befor e M.A.J
. hit S.K., S.K. appea red to be in a fig hting stance with his arms raised and his che s t p u ffe d up, “[as] if he was g oing to hit [M.A.J .] first.” Offic er Christi Kathleen Be rg h of the Austin Police Depa rtment investiga ted the incident. Be rg h testified that when she found M. A. J
. at t h e apar tment complex, he “wa s very uncooper ative. He was ve ry abra sive and it took us a while to tr y to ta lk him down and to g et him to calm down. When we tr i ed t o g et information, he finally just said that [S .K.] made him upset due to some comments he had made and that he broke his hand on his fac e.” M.A.J
. also told Be rg h “that he had ang er manag ement problems and that [S .K.] made him upset and he couldn’t control himself.”

The only witn es s t o testify on behalf of M.A.J
. was Sharon Simm ons, an adult resident at the apar

tment complex who claimed t o h av e wi t n essed the alterc ation. Acc ording to Simm ons, S.K. said “F **k Blue ” as he was walking past M
. A. J
. and beg an “bucking up” to him, which Simm ons descr ibed as having his hands in a fist and his chest puffe d out, as if he was “coming towards a person.” Then, Simm ons rec alled, M.A.J
. asked S.K., “What did y ou say ? ” S.K. responde d, “You hear d me.” After that, Simm ons testified, M.A.J
. “g ot up and hit him.” On crossexamination, when asked “ who threwthe first punch,” Simm ons admitted, “[M.A.J .]”

Af t er hear ing the evidenc e and listening to arg ument from both sides, th e juvenile court rec ited its finding s orally
. Finding the t estimony of t he defense witness, Simm ons, “complete ly unbelievable ” and having “no rea son to doubt the State’s witnesses,” the juvenile court

3found that the State had proven bey ond a rea sonabl e d oubt that M.A.J
. had assaulted S.K. The

juvenile cour

t then adjudicate d M.A.J . delinquent. This appea l followed.

STANDARD OF REVIEW Adjudications of delinquency in juvenile case s are based on the criminal standard of proof. See Tex. Fam. Code Ann. § 54.03(f) (West Supp. 2009). There fore , we revie w adjudications of delinquency in juvenile case s by apply ing the same s t an d ar d s applicable to sufficie ncy of the evidenc e challeng es in criminal case s. In re M.C.L. , 110 S.W .3d 591, 594 (Tex. App.—Austin 2003, no pet.). I n a fac tual -s u ff i ciency revie w, we view the evidenc e in a neutra l light and ask wh et h er t h e fac t-finder was rationally justified in finding g uilt bey ond a rea sonable doubt. See W atson v. State , 204 S.W .3d 404, 414 (Tex. Crim. App. 2006). We then deter mine (1) whether the evidenc e supporting the verdic t is so weak that the verdic t is clea rly wrong and manifestly unjust or (2) whether the verdict is ag ainst the g rea t weig ht and pre pondera nce of the conf licting e vidence
. Id
. at 414-15. We will not reve rse a verdic t f or fac tual insufficienc y unless we can say , with some objective basis in the rec ord, that the g rea t weig ht and preponde ranc e of the evidenc e contra dicts the fac t-finder ’s verdict. Id
. at 417. Nor will we intrude o n t h e fac t-finder ’s role as t he sol e judge of the weig ht and cre dibilit y of witness testimony
. Vasquez v. State , 67 S.W .3d 229, 236 (Tex. Crim. Ap p . 2002). The trial judge is the fac t-finder in bench trials, and we g ive the same d ef er en ce t o
a trial judge ’s cre dibilit y and weig ht deter minations as we would a jury ’s. See Joseph v. State , 897 S.W .2d 374, 376 (Tex. Crim. App. 1995).

4ANALYSIS I n his sole point of err or, M.A.J
. asser ts that the evidenc e is fac tually insufficient to prove tha t he did not act in self- defe nse. We disag ree .

A person is justified in using forc e ag ainst another when and to the deg ree the actor
rea sonably believes the forc e is immediately nece ssary to protec t the actor ag ainst the other’s use or attempted use of unlawful forc e. Tex. Penal Code Ann. § 9.31(a) (West Supp. 2009). “Rea sonable belief” means a belief that would be held by an ordinary and prudent man in the same circ umstances
as the actor
. Id
. § 1.07(a) (42) (West Supp. 2009). The defe ndant has the burden of producing some evidenc e to support a claim of self-de fense
. Zuliani v. State , 97 S.W .3d 589, 594 (Tex. Crim. App. 2003); Lee v. State , 259 S.W .3d 785, 791 (Tex. App.—Houston [1st Dist.] 2007, pet. ref ’d). Once the defe ndant produce s su ch ev i d ence, the State has the burden of persua sion in disproving self-de fense
. Saxton v. State , 804 S.W .2d 910, 913-14 (Tex. Crim. App. 1991). The State’s burden of persua sion does not require it to produce evidenc e ref uting the self-de fens e cl ai m . Id
. at 913. Rather, the bur den re quires the State to prove its case be y ond a re asonable doubt. Id
.

To support h i s s el f-de fense claim, M.A.J
. points to the testimony of A.V.C. and Simm ons, both of whom claimed that t h ey h ea rd S.K. actua lly say the words, “F **k Blue ” and that S.K. was in a fig hting stance and “bucke d up” to M.A .J
. prior to M.A .J
. hitting him. Viewing this evidenc e in a neutra l light, we cannot say that the juvenile court’s finding that the State proved its case bey ond a rea sonable doubt was “cle arly wrong and manifestly unjust” or “ag ainst the g rea t weig ht and preponde ranc e of the conflicting evidence .” See W atson , 204 S.W .3d at 414-15. The
use of forc e ag ainst another is not justified in response to verba l provoca tion alone. Tex. Penal Code Ann. § 9.31(b)( 1). There fore , even if S.K. had said those words to M.A.J
. (which the juvenile court 5was fre e to disbelieve), this alone would not justify M.A.J .’s use of forc e ag ainst S.K. See Trammell

v. State , 287 S.W .3d 336, 342 (Tex. A pp.—For t Worth 2009, no pet.). As for the testimony about S.K.’s ag g ressive behavior , the juvenile court could have simply found this testimony not cre dible, and such a finding would not have been ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. S.K. denied say ing or doing any thing to provoke M.A.J ., and L .L
. testified simil arly
. We must defe r to the fac t finder’ s decision reg arding what weig ht to g ive contra dictory testimonial evidenc e. See Lancon v. State , 253 S.W .3d 699, 706 (Tex. Crim. App. 2008). Moreove r, Offic er Be rg h testified that M.A.J . told her that “he had ang er ma nag ement problems and that [S .K.] made him upse t a nd he couldn’t control himself.” Also, when as k ed “w h o t hrew the first punch,” L .L ., A.V.C., and Simm ons eac h testified that it was M.A.J
. Thus, the juvenile court could have rea sonably inferr ed from this and other e vidence that it was M.A.J . and not S.K. who was the ag g ressor.

We conclude that the evidenc e is fac tually sufficie nt to disprove M.A.J .’s theory that he ac ted in self-de fense . We overrule M.A.J .’s sole point of er ror.
CONCLUSION We affir m the order

of the juvenile c ourt.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: F ebrua

ry 26, 2010

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