### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 108 -CR

Ve r te n Do dso n , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-07 -30 0805 , HO NORAB LE CHARLES F . BAI RD , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N

A ju r y f o u n d a p p e ll an t V e rte n D o d s o n g u il ty o f mu r d er. See Tex. P enal Code Ann. § 1 9. 02 (b ) (We st 20 03 ). Th e dis tr ic t c ourt se nte nc e d D od so n to thi rt y y e ars ’ i mpr iso nme nt. On appe a l, D o d s o na r g u e s th a t t h e e v id e n c e is f

a c tu a ll y in s u f f ic ie n t t o s u s ta in

th e ju r y ’s verdic t in the fac e of e vidence p re sented by Dodson that he a cted in self- defe nse. See id. § 9.32 (West Supp. 2008). W e af firm the judg ment of convic tion.

BACK GR OUND Around noon on Apr il 7, 2007, Dodson, his friend Raul Olalde, and B etty Olalde— Ra ul’ s mo the r a

nd Do ds on ’s g ir lf

ri e nd —w e re dr ivi ngthr ou g h a re sid e nti a l ne ig hb or

ho od in north Austin. As they

approa ched the intersec tion of Hunter’ s Chase and Colony C re ek , Dodson shot Raul Olalde in the bac k. After the s hooting, Betty Olalde stopped the car i n the m iddle of theThe c rime s ce n e p h o t o graphs of the ca r show a soda

can on the floorboar d and a lig hter 1 sitti ng on the dashboa

rd. B etty testified that she thoug ht the lighter on the dashboa

rd wa s hers a

nd that Raul had his own lighte r. Howeve r, the police investig ators who se arc hed the c ar did not find a s e c o n d l i g h t e r n o r d i d t h e y s e i z e c r a c k

c o c a i n e o r

an y o t h e r dr u g d u r i n g t h e c ar ’ s i n v e n t o r

y. 2 road. A ccor ding to ey e wi t n es s es i n an oncoming car , Raul exi ted the fr ont passeng er se at and walked ove r to the sidewa lk before collapsi n g o n t he g round. B etty then stepped out of the dr ive r’ s se a t, s c re a min g and hy ste ri c a l. A fe w se c on ds la te r, Do ds on c lim be d out o f t

he ba c k s e a t, wal k e d c a lm ly aw ay f

r o m th e c ar , g la

n c e d b a c k a t Ra

u l, s li p p e d th

r o u g h a g a

p in th e fenc e, and walked a way along a cre ek bed. Aman who ca me upon the sce ne shortly there afte r administere d CPRto Raul and emer g ency personne l were called. Raul was taken to a local hospital, where he was pr on ounc e d d e a d o n a

rr iva l. The e vents immediately

prior to the shooting are larg ely d i s p u t ed

. Be tty Olalde te sti fi e d th a t a s th e y

we re dr ivi ng , Ra

ul a sk e d Do ds on if the re wa s any c ra c k in t he c ar f or Ra ul t o

smo ke . D od so n in dic a te d th at th e re wa s a ro c k o f c ra ck in th e con so le be tw e e n th e fr on t se a ts. Ac c or din g to B e tty , Ra

ul t he n lo ok e d f

or a so da c an h e c ou ld u se to s mok e the c ra c k a nd a s h e lit it a nd be g an to smo ke , D od so n s ho t Ra ul. 1 Dodson disputed Be tty ’s version of t hese events. Dodson testified t hat, as Raul g ot i nt h e c ar

s h o r t l y b e f

o r e n o o no nA p r i l 7 , h e w a s a c t i n g “ k i n d o f j e r ky” an d s e e m e d an g r y. Acc ording to Dodson, Raul beg an dig g ing a round i n the car and then m ade a sudden move towa

rds his lap, which Dodson interpr eted to b e rea ching for a g un. Dodson knew Raul owne d a g un, beca use Dodson himself had stolen the g un from a vehicle a fe w day s befor e the shooting . Dodson

a t f ir st t e sti fi e d th a t he g a ve Ra ul the g un , and the n la te r sa id that Ra ul “ jus t sn a tc he d it” fr om h im.3

Ac c or din g to D od so n, Ra ul a lw ay s c arr ie d h is gun

in e ith e r t

he po c ke t of

his c arg o s ho rt s o r i n h is waistband. Be cause Raul was not w ear ing car g o shorts that day , Dodson said he believed Ra ul’s g un

was at his waist, and thought Raul wa s rea ching for it in order to shoot Dodson. Dodson admitted that there was a

possibili ty

that Raul car

ried a cell p h o n e at his waist, but maintained that he wa s

cer tain that Raul was re achingfor a g un when Dodson shot him. Dodson claims he then shot Raul in self-de fense . After

the shooting, police found R aul’s gun z ippere d shut inside a backpac k, which,

acc ording to Be tty , Raul had bee n holding in his l ap . Do d s on testified, howeve r, that he w as not

awa re of this fact and sinc ere ly

and re asonably

believed the g un was at Raul’s waist. Do ds on e xpla ine d h is p ur

po rt e d b e lie f t

hat Ra ul w a s r e a c hin g fo r h is gun in o rd e r t o k ill Do ds on by po int ing t o ev e nts in t

he we e ks le a din g up to t

he sh oo tin g . D od so n te sti fi e d th a t hi s relationship wit h Raul had bec ome strained be cause Raul was upset about Dodson dating his mother Be tty and wa s frustrated that B etty seeme d to choose D odson over Raul. Raul’s wif e, Ly dia Olalde, also testified to Raul’s conc ern that his mother chose Dodson over him. Dodson testified that Raul

c la ime d to have take n a

lif e ins ur anc e po lic y

ou t on Do ds on and to h a ve op e ne d a

ba nk a c c ount i n Dodson’s name. Dodson testified t hat he thought someone who t ook out a life insura nce policy

was “wa iting for

y ou to die so they

can g et s ome money .” B etty and Ly dia share d the belief that Raul had take n out a life insurance policy on Dodson, thoug h they

eac h hear d this through Dodson, not Raul. Be tty

testified that Dodson told her a bout this policy , and L y dia t estified that she l ear ned of it from Be tty

afte r Raul’s death. Dodson also claimed to have bee n told by Be tty that Raul had t h re at en edt o k i l l Do d s o nab o u ta w ee k b ef o re th e s h o o t i n g.The notes take n by the police de tective wh o i n t er v i ew ed Ly dia said that Ly dia told the 2 detec tive that Raul suspected D odson of trying to send Raul to jail, rather than the other wa y around. L y dia maintained that the police de tective ha d g otten that statement bac kwar ds. When first asked about this possibili ty , the detective t estified that she didn’t believe she ha d made a mistake. But on cross e x amination, afte r re ading the note in the contex t of the pre vious sentence , which stated that Do ds on ha d p ull e d a

g un on Ra

ul, the de te c tiv e c ha

ng e d he r min d and te sti fi e d th a t sh e ha d p ro ba bly ina dv e rt e ntl y

sw itc he d th e name s in

he r n ote s. 4 Do ds on te sti fi e d th a t he wa s a fr a id R a ul’s anger and

fr us tr a tio n w ou ld l e a d to violence be cause Raul had a violent tra ck re cord w ith his family and fr iends. Acc ording to Dodson, Raul had tried to ra

pe his y oung er sister, V anessa Olalde, a nd had hit and bruised B etty when she tr ie d to sto p h im. Do ds on c la ime d th a t on

a dif fe re nt o c c a sio n Ra

ul h a d u se d h is f

ing e rs to s e xua lly penetr ate Va

nessa, that he regularly

sent her to be at up women who owed him money for dr ug s, and that he had onc e slappe d her a cross the f ace , causingher to blee d. Dodson also testified that he ha d seen Raul c hase a

friend w ith a knife. L ydia Olalde c onfirmed the te nsion betwee n Raul and Dodson. He r cha rac terization of it, howeve r, wa s signific antly differ ent. Acc ording to L y dia, Dodson blamed Raul f or a pr ior

arr est and conviction for a theft t he two men commi tted toge ther. Dodson believed that Raul had told the police about Dodson’s involveme nt in that theft and suspected R aul of speaking to the police

a bo ut t he ir mor e re c e nt c ar b ur g lari e s in an atte mpt

to s e nd Do ds on ba c k to ja il. 2 On April 6, 2007, the nig ht before the shooting, the tension betwee n Dodson a n d Raul appea red to be coming to a hea d. Dodson testified t hat he and Raul borr owed B etty ’s ca r and dr ove around tog ether , burg larizing c ars a nd smoking c rac k—and ar g uing muc h of the time. Ac cording to B e tt y , w h o jo in e d th e m e ar ly th e n e xt mo r n in g a s th e y dr o v e ar o u n d n o rth A u s ti n , a t o ne point Dodson ac cused Raul of

being g ree dy

and then thre atened Raul with a g un. Be tty testified thatDodson testified that he and Betty wer e driving t o a bank to chec k on the supposed bank 3 acc ount that Raul had opened. Be tty testified that Dodson had w anted to g o by the bank to che ck on the supposed life insura nce policy , but that she had re fused, a nd that they

wer e not headed to any specific place when Raul c alled. 5 Raul’s rea ction to Dodson’s threat was to exit the ca r and w alk off by

himself. Dodson acknow ledg ed that he a

nd Raul had arg ued and that Raul had walked away from the car, but testified that he did

no t r e c a ll thr e a te nin g Ra ul. After Raul walked a

way , he we nt to the hote l w here his w ife L y dia and his childre n

we re sta y ing . Wh ile the re , Ra

ul s po ke wi th L

y dia a bo ut h is c on fl ic t- fi lle d r e la tio ns hip s w ith Dodson, his mother, and L y dia. Acc ording to L ydia, R aul t old her that Dodson had pulled a gun on him and acc used him of trying to se nd Dodson bac k to ja il. L y dia testified that Raul wa s upset that his mother had watched this happe n and had done nothing to interve ne on Raul’s be half. As they spoke about their own troubled re lationship, Raul tol d L y dia that if he c ould just shoot himself and her, the n all of their troubles would g o awa y . L y dia testified that this statement did not frig hten her ; she simply

took it as evidence that Raul was fe eling sad. Whil e Ra ul wa s at the ho te l w ithL y dia and the c hil dr e n, B e tty

and Do ds on dr ov e to Pfluge rvi l l e t o Do dson’s sister’s house so that Dodson c ould pick up his social secur ity car d and identification car d. Acc ording to D odson, he neede d those items to look int o the bank a ccount that Raul alleg edly opened in Dodson’s name. As Dodson and Betty wer e driving bac k to north Austin, 3 B e tt y receive d a

c a ll f ro m Ra ul, wh o a sk e d h e r t o b ri ngso me c lot he s to his ho te l r oo m. B e tty testified that Raul was still ang ry with Dodson and aske d her to not bringDodson; howeve r, she a nd Dodson went to the hotel tog ether any way .Be tt y te s ti f ie d a t t r ia l t h a t s h e d id

n o t k n o w Ra u l h a d h is g u nw it

h h im

. T h is te s ti mony 4 contra dicted her

testimony

befor e the g rand jury

. De fe n s e counse l drew this contra diction to the jury ’s at t en t i o n . Once Be tty finished testifying a

bout this i ssue bef

ore the trial court, she was ar r e s t e d , o u t s i d e t h e p r e s e n c e o f t h e j u r y, o ns u s p i c i o no f

p e r j u r y. 6 Whe n th e y

arr ive d at th e ho te l, B e tty we nt i ns ide to giv e Ra

ul h is c lot

he s. B e tty testified that Raul then asked her to give him a ride. When B etty returne d to the car , she told Dodson that Raul was comingwith them. She asked Dodson if he wanted to c ontinue to d rive or if he wanted he r to drive. Dodson told her to drive. Raul then came out to the car , car rying his da

ug hter’s backpa ck with his g un inside. Dodson moved to the bac k sea t an d t o l d R aul t o sit in t he fr ont 4 passeng er se at.

They had only driven a few miles when Dodson shot Raul. When police first ar rived on the sce ne and que stioned Be tty , she t old them that she di d not know t he person who had shot her son. She said they

had picke d up an unknown hitchhiker who had then shot he r son and wa lked

awa y . She also told the police she wa s unable to desc ribe the hitchhike r or even tell them his rac e. After t h e p o l i ce found Dodson’s identification card on he r, B etty admitted that he had be en the sh oo te r. B e tty te sti fi e d at tri a l tha t she ha d be e n pro te c tin g Do ds on be c a us e sh e lov e d h im a

nd did not want to be alone

.

Do ds on wa s arr e ste d o n Apr il 9, 20 07 . T he bo ok ingof fi c e r t e sti fi e d th a t D od so n to ld him that “ he did

n’ t un de rs tand wh y he wa s in ja il, he did a g oo d thi ng takin g him ou t. He tol d me that someone wa s selling a lot of drug s, kidnapping kids, a nd he did it and he’ ll take it.” The of fice r further testified that Dodson said he w as “the only one who c ould ge t close enoug h” and that Dodson did not make any

statements i ndicating he wa s afr aid of Raul or ha d shot Raul in order to protec t himself or anyone else

.7 The jury found Dodson g uilty

of murder

. See Tex. Penal C ode Ann. § 19.02(b). The tr ia l c ourt se nte nc e d h im t o th ir

ty y e ars ’ i mpr iso nme nt.

STA ND AR

D O F RE VI EW Ev id ence is fac tua lly

ins uf fi c ie nt w he n it

is s o w e a k th a t th e ve rd ic t se e ms c le a rl y wrongand manifestly unjust, or when the verdic t is ag ainst the g reat w eig ht a nd preponde ranc e of the evidenc e. Be rry

v . S tat e , 233 S.W .3d 84 7 , 8 5 4 (Tex. Crim. App. 2007); W ats on v . S

tat e , 204 S.W .3d 404, 414-15 (Tex

. Crim. App. 2006). I n revie wing for f actua l sufficienc y , we c onsider all the evidenc e in a ne utral lig ht, while g iving due defe renc e to the jury ’s deter mina tion. Sim s v . S tat e , 9 9 S

. W

. 3 d 6 0 0 , 6 0 4 ( T e x. C r i m . A p p . 2 0 0 3 ) ( r e v i e w i n g c o u rt m u s t c o n s ide r a ll evidenc e, including t hat which is most i mportant to appellant’s c laim); Vasquez v. Sta te , 67 S.W .3d 229, 236 (T ex . Crim. App. 2002) (re viewing court must view evide nce in ne utral lig ht and be appropr iately

defe rential to jury

). The jur y is the sole judge of the cre dibilit y of the witnesse s and the weig ht to be acc orded t h ei r t es t i m o ny . Vasquez , 67 S.W .3d at 236. We may not rewe igh the evidenc e and substitute our judg ment for that of the jury

. W

atson , 2 04 S.W. 3d

a t 41 7; Kin g v . S

tat e , 29 S.W .3d 556, 563 (Tex. Crim. App. 2000).

DI SCU SSIO N I n his sole point of error , Dodson argues that the evidence was insuffic ient to prove bey ond a re asonable doubt that he did not act in self-de fense . At trial, Dodson soug ht to show that he wa s justifi ed i n u s i n g deadly forc e bec ause he rea sonably believed that deadly

forc e wa sUnder the pena l code, “ a per son is just ified i n using force ag ainst another w hen and to the 5 deg ree the ac tor rea sonably beli ev es t h e force is immediately nece ssary

to protect the a ctor ag ainst the other’ s use or attempted use of unlaw ful forc e. ” T ex . P enal Code A nn. § 9.31(a) (West Supp. 2008). Deadly forc e is justified only

if the ac tor rea sonably

believes the deadly

forc e is imm ediately

nece ssary

“to protec t the actor ag ainst the other’s use or attempted use of unlaw ful deadly forc e.” Id. § 9.32(a) (2)( A) (West Supp. 2008). I n deter mining whe ther the a ctor re asonably believed that deadly

forc e wa s nece ssary , the jury may consider w hether the ac tor failed to r etre at unless the ac tor “ha s a rig ht to be prese nt at the loc a tio n, ” did

no t pr ov ok e the vic tim , an d wa s not en g a g e d in cr imi na l ac tiv ity a t the tim e the de a dly forc e wa s used. Id. § 9.32(c) ,(d). For ce is not justified “in re sponse to verba l provocation alone” nor is it just ified “if the actor soug ht an explanation from or discussion with the ot her pe rson conc erningthe ac tor’s diffe renc es wi t h t h e o t h er person” w hile the ac tor was unlaw fully car rying a handg un. Id. § 9.31(b)( 1), (b)( 5)(A) , § 46.02 (West Supp. 2008). 8 nece ssary to protect himself a g ainst attempted unlawf ul deadly forc e by Raul. See Tex. P enal Code Ann. § 9.32. 5 The issue of se lf-def ense is a fact i ssue t o be determined by the jury

. Sa x ton v . S tat e , 804 S.W .2d 910, 913 (Tex. Crim. App. 1991). A defendant ra ising the issue of self-de fense has the burden of

producingevidenc e to support that def ense. Zul ian i v . S

tat e , 97 S.W .3d 589, 594 (Tex. Crim. App. 2003). The S tate then ha s the burden of persua sion to rebut the def ense; howe ver, the State does not have a burde n of produc tion of evidenc e. Id. Whe n a jur y re tur ns a g uil ty ve rd ic t, it impl icitly

reje cts the def

endant’ s theory

of self- defe nse. Id. When a def

endant c halleng es the fac tual sufficie ncy of the reje ction of a defe nse, the revie wing court a

pplies the ordinar

y fac tual-suffic iency

standard. Id. Fi rst, we r eview a ll of the evidenc e in a ne utral lig ht and ask whether the S tate’s evidence of guilt is so weak as to make the g uilty verdic t c lear ly wrong or manife stly unjust. Id. Th e n, we we ig h th e State ’s e vid e nc e a g a ins t9

the ev i d en ce p re sented by the def ense a nd ask whe ther the ve rdict of guilty is ag ainst the g reat weig ht and pre pondera

nce of the evidenc e. Id. There was no dispute that Dodson shot Raul. The State pr esente d test imony by Be tty Olalde that whe n Dodson shot Raul, Raul was in the proce ss of smoking cra ck. Be tty testified that Ra ul a nd Do ds on we re no t arguin g and

that Ra ul m a de no thr e a ts t o D od so n. Th e State a lso prese nted eviden ce that Dodson was ang ry with Raul, had threatened him in the past, and

acc ompanied B etty

to the hotel to meet Raul, eve n though he knew Raul did not want him to come. The fa ct that Raul was sho t i n t h e back and the te stimony by impartial ey e witnesses that Dodson exit ed the vehicle from the rea r seat and then walked calmly awa y from the scene just mom ents afte r having shot Raul provide additional support for a murder c onviction. Thus, the S tate’s e vidence of g uilt is not so weak a s to make the guilty verdic t clear ly

wrongor manife stly

unjust. Neither is the verdict a g ainst the g reat weig ht and pre pondera nce of the evidenc e. Whil e Dodson’s te stimony raised the possibili ty

of self- defe nse, his version of e vents was contra dicted by

Be tty Olalde’ s testimony . Dodson testified that he shot Raul af ter Raul rea ched f

or his la p, wh e re a s B e tty

te sti fi e d th a t Ra

ul wa s in the pr oc e ss o f s mok ingc ra c k c oc a ine and ha d ju st lit the soda can he held i n one hand with the l ighte r he held i n the ot her ha nd. The police did not find any cra ck coc aine in the c ar w hen they sear ched the car . When Raul ex ited the ca r, howe ver, the ba c kp a c k h e ha d be e n ho ldi ng fe ll to t he g ro un d ( and

wa s late r p ic ke d u

p b y B e tty and thr ow n in to the bac kseat of the car), and the jury could have rea sonably conclude d that the rock of cr ack c ocaine fell to the g round, as we ll, and was never noticed by the pol ice. I n addition, the tox icolog y repor t

on Ra ul r e ve a le d th a t he ha d co c a ine in his blo od str e a m, w hic h in dic a te s c oc a ine us e duri ngthe la st one or two da

y s of his life.The jury was a lso presente d with impeachment e vidence ag ainst Dodson. Dodson admitted 6 to seventee n prior misdemea nor convic tions and four prior felonies, includingburg lary of a habitat io nw it

h in te n t t o c o mm it

a s s a u lt

. D o d s o na ls o a d mi tt e d to b e in g a

r e g u la r u s e r o f c r a ck c oc a ine , to burg lari zing c ars and se lli ng c ra c k to su pp or t his ha bit , to smo kin g c ra c k in

the ho ur s ju st befor e the shooting took place, a nd to having impaired judg ment when hig h. Th e jur y ma y have fo un d Dod so n’ s the or y un pe rs ua siv e be c a

us e the y did no t be lie ve his 7 version of the events, a

nd instead believe d Be tty
. Alternatively , the jury may have be lieved Dodson, bu t fo un d that Ra

ul r e a c hin g fo r h is l a

p w ou ld n ot h a ve c re a te d a re a so na ble a pp re he ns ion

of de a dly harm in a r easona

ble per son in Dodson’s position. 10 Fur ther, Dodson’ s testimony

that Raul had threatened him in the past and wa s ang ry with D odson was counter ed by the testimony of B etty and Ly dia Olalde that it was in fact Dodson who was a

ng ry with Raul and had thre atene d him. Finally , the booking officer’s te stimony that Dodson had told him that “he did a g ood thing taking[R aul] out,” and that Dodson did not tell the booking o ff

i ce r t hat Raul was r eac hing f or his g un or that he w as af raid of Ra

ul, also undermines Dodson’s self- defe nse ar g ument.

I n the end, this ca se co m es d o wn t o conflicting witness testimony , and it is for the fac tfinder—the jur

y in this case—t o resolve c onflicts in evidence

. Vasquez , 67 S.W .3d at 237. Dodson argues that B etty

Olalde wa s not a cre dible witness and cites to the f act that she was a

rre sted for pe rjury

beca use par ts of her te stimony

befor e the tria l court contradicted her t estimony befor e the g rand jury . Howeve r, the jury , as the trier of fact, i s the s ole j udg e of the cre dibilit y of a w itness’s testimony and may believe or

disbelieve a

ny part of a witness’s testimony

. J

oh ns on v. Stat e , 23 S.W. 3d 1, 7 (T e x. Cr im. Ap p. 20 00 ); Saxton , 804 S.W .2d at 914 (Te x . Crim. App. 1991). The jury was pre sented with B etty ’s conf licting g rand jury

testimony about whether she knew that Raul ha d a g un wh e n he g ot in the c ar. Th e jur y wa s the n fr e e to a sse ss h e r c re dib ili ty and jud g e fo r i tse lf wh e the r t o b e lie ve he r v e rs ion of the e ve nts or

Do ds on ’s

. Ba sed on the e vidence prese nted, the jury

6 found Dodson’s theor

y of self- defe nse unper suasive. 711 After revie wing all the evidenc e in a n eu tral lig ht, we ca nnot say that the evidenc e is so weak as to make the jury ’s verdict clea rly wrongor manife stly

unjust, nor can we say

that the jury ’s ver dict is ag ainst the g reat weig ht and pre pondera nce of the evidenc e. We over

rule Dodson’ s point of err or and a ffirm the judg ment of convic tion.

CO NC LU SION Be cause the evidenc e was fac tually sufficie nt to support the jury ’s verdic t, we af firm the judg ment of convic tion.

__________________________________________ Diane M. H enson, Jus tice Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: Nove mber 7, 2008 Do No t Pu

bli sh