For the sake of cla

rity , throug hout the opinion we will refe r to appe llant as Br andon. 1 

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

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NO. 03-05-00537- CR

Br ando n Bur ns Br e wer , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF LLANO COUNTY , 33RD JUDICIAL DISTRI CT NO. CR5574, H ONO RAB LE GUILFO RD L. JONES III , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Our opinion and judgme nt issued on J une 30, 2006, ar e withdra wn, and the f

ollowing opinion is subs tituted.

Appellant B randon B urns B rew er w as convic ted of murde ring his mother, Nanc y Br ewe r. Tex. P en. Code Ann. § 19.02 (West 2003) . I n his sole issue on appea l, Bra ndon contends 1 that the evidenc e is fac tually insufficient to sustain his conviction, specific ally ref err ing to the jur

y ’s fa ilure to f

ind that he a c te d in

se lf -d e fe ns e . We wi ll a ff

ir m th e jud g me nt o f t

he dis tr ic t c ourt
.2 BACK GR OUND Th e jur y he ard e vid e nc e that on the mor nin g of Ma

y 21 , 20 04 , the L lan o C ounty Sheriff’ s Offic e re ceive d information that a r esidenc e wa s on fire. Glenn W illiams, an investigator with the sheriff

’s offic e, ar

rived at the scene . Afte r t h e fi re w as extinguished, the body of Na ncy Br ewe r wa s located in the bur ned re sidence . Wil liams te stified that char coal briquettes we re f ound around the body
. An autopsy perf ormed on the body

established that Ms. B rew er die d of a gunshot wound prior to the f

ire. The fire w as dete rmined to have been the result of a rson. Amy Over street, a

n investigator with the sheriff ’s offic e, assisted Willi ams with the criminal investig ation. Over street f irst interviewe d Gary Br ew er , Ms. Bre wer ’s husband a nd B ra nd on ’s fa the r, and sh e te sti fi e d th a t Mr . B re we r s us pe c te d th a t B ra nd on wa s invo lve d w ithMs. Br ewe r’s murde r. Ove rstree t then interviewe d Br andon. Af ter ques tioning B randon f or
a pp ro xima te ly

90 min ute s, sh e too k a

wr itt e n s tate me nt f

ro m hi m. I n th e state me nt, B ra

nd on a dmi tte d s ho oti nghis mot he r but state d th a t he did

so in
s el f- d ef en s e. Accordingto the statement, B randon a nd his mother had bee n arguing f or seve ral months about her disapprova l of his g irlfriend. Br andon st ated that the ni g ht before the incident he and his mother “ta lked and unde rstood eac h other” and that they “fe ll asleep tog ether

on t h e bed holding ha

nds.” I n Br andon’s words, they wer e “mom and son ag ain” a nd she wa s g oing to “ stand by my side and let me date my g irlfriend ag ain.” Br andon stated that the next m orning he lef t school
e arl y and , o n h is w ay

ho me , h a d c a lle d h is m oth e r a nd a sk e d h e r t o g o to the ho us e to g e t hi s

“ a thl e tic pa

pe rs .” B ra

nd on a lso state d th a t he ha d d e c ide d to me e t hi s mot he r at ho me and

surp ri se her with flower s. When she arrived, Bra ndon stated t hat s he was “fur ious” and im mediately beg an3

y e lli nga t hi m. B ra

nd on wa s un sure why sh e wa s u ps e t but st a te d th a t he be lie ve d “ it w a s b e c a us e Iwa s a ble to c ome ho me e arl y

and sh e did n’ t kn owa

bo ut i t, [b e c a

us e ] Iwa s e xemp t f

ro m my la st fi na l.” B ra

nd on we nt o n to e xpla in t

hat:
Whil e sh e wa s y e lli ngsh e wa lke d to me and sh ov e d me a g a ins t th e wa ll a nd Ihit my head. She w ent to the sink are a o f t he kitchen a nd g rabbe d at least a

fork a nd two knives. When Ilooked up she thre w a f ork at me but missed. So Ijumped up and ran [th r o u g h ] h e r

b a thr o o m a

n d s la mm e d h e r d o o r an d r an[th r o u g h ] h e r

b e dr o om and close d that door. I

jumped over the couch in the l iving room and ran to Randall’s ro om. Ira

n in to t hat r oo m and

g ra bb e d th e [sho tg un ]. I

kn e w the [sho tg un ] wa s in there beca

use he told me to put it in there the day befor e. The g un was unloade d at the time. Iran ba ck into the living r oom and g rabbe d a shell out of the pouc h and loaded the gun. I could hear my mom c oming and I was hoping once she saw the gun she would calm down and li sten to what I have to say . Iwas in the living room at the table beside the glass door. She opened her bedroom door and I saw that she ha d a knife in ea ch hand a

nd they wer e st eak knives that y ou eat with. She ra n at me so I ra n [th ro ugh] th e kit c he n to [the ] dr y e r an d wa sh e r. Th a t is by the do or tha t sh e c a me in. A s Iran [throug h] t here Icocke d the g un. Istopped by the dry er a

nd washe r, and Ihad the stock part of the gun under my arm. She c ontinued to follow me and she followed me a ll the w ay t o where she wa s betwee n me and the door . At this point she only had one knif

e in one hand, her rig ht hand. She pointed it at me and said “ I am not her son a

ny more” and “I

am not a par

t of the family

any more.” Then she walked slowly

to me and ra ised the knife, a nd as soon as s h e starte d coming down with the knife I

pulled the trig g er. I

hear d the g un g o off. Isaw [the bullet] hit her in t he he a d, sh e [fe ll] b y

the do or and that’ s w he n I

bla c ke d o ut.
Br andon wa s char g ed with one count of murder and one c ount of arson. B randon w as 16 a t th e tim e of

the ind ic tme nt a

nd , b e c a us e of the se ri ou sn e ss o f t

he a lle g e d o ff

e ns e s, the juv e nil e court wa ived its jurisdiction and ordere d the ca se transf err ed t o d i s t ri ct court for cr iminal proce eding s. The jury

found him g uilty

of both arson a

nd murder. Punishment was assessed at 30 y ear s’ conf

inement for a

rson and 60 y ear s’ conf

inement for mur der. This a ppeal f ollowed.4 DI SCU SSIO N When there is a c halleng e to the fa ctual suff iciency of the ev i d en ce t o sustain a criminal convic tion, the question presente d is whether a rational trier

of fa ct could have f

ound the essential elements of t he offense bey ond a reasonable doubt. Zun iga v . S tate , 144 S.W .3d 477, 484 (T e x. Cr im. Ap p. 20 04 ). Whe n th e iss ue of se lf -d e fe ns e is s ub mitte d to th e ju ry , w e mus t a lso deter mine whether

a rational trier of f

act c ould have f

ound ag ainst the defe ndant on that issue, that is, found bey ond a reasonable doubt that the defendant’s conduct was not justified. Zul ian i v . S tate , 97 S.W. 3d

58 9, 59 4 (T e x. Cr im. Ap p. 20 03 ); Sa x ton v . S tate , 804 S.W .2d 910, 914 (Tex. Crim. App. 1991). I n a fa ctual sufficiency revie w, all the evide nce is c onsidered e qually , including the testimony of def ense w itnesses and the e x istence of alternati v e h y

potheses. Or on a v . S

tate , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). Althoug h due def ere nce must be a ccor ded the fac t-finder ’s deter

minations, particularly

those conc e r

n in g th e w e ig h t a nd cre dibilit y

of the e vidence , the reviewing court may

disag ree with the result in order to preve nt a manife st injust ice . Johnson

v . S tat e , 23 S.W .3d 1, 9 (Tex. Crim. App. 2000). The evide nce w ill be deemed f actua lly insufficient to s us ta in t

he c on vic tio n if

the pr oo f of g uil t is too we ak o r t he c on tr ary

e vid e nc e is t oo str on g to support a finding of g uilt bey ond a re asonable doubt. Zuniga , 14 4 S.W. 3d a t 48 4- 85 ; see J

ohnson , 23 S.W .3d at 11.

As a g ener al rule, a

person is justified in using de adly forc e in s el f- d ef

en s e if he
rea sonably believes that deadly forc e is immediately nece ssary

to protect himself a g ainst the other’ s
use or attempted use of unlaw ful dea dly forc e, and if

a rea sonable person in his situation would not5

have re tr e a te d. Te x. Pe n. Cod e Ann. § 9. 32 (We st 20 03 ). A pe rs on ha s th e ri g ht t o d e fe nd him se lf from appar ent dang er to the same extent as he would if the da ng er w ere rea l. Ha me l v . S tate , 916 S.W .2d 491, 493 (Tex. Crim. App. 1996).

Whe the r B ra

nd on re a so na bly be lie ve d th a t th e us e of de a dly fo rc e wa s im me diate ly
nece ssary under the circ umstances wa s a fa ct issue for the jury
. Se e Sa x ton v . S tate , 804 S.W .2d 910, 913-14 (Te x . Crim. App. 1991). Br andon did not testify and, other

than his written statement to the police, ther e is no evidenc e in the re cord that his mot her attacked him. The re is some evidenc e that Ms. B re we r s uf

fe re d f ro m e mot ion a l pr ob le ms. He r c o- wo rk e r, Maria Av ila , te sti fi e d th a t Ms
. Br ewe r had pr eviously

taken a ntidepressa

nt medication and that she suffe red from “mood swing s.” Avila also testified that Ms. B rew er had told he r about fig hts w ith he r husband that would sometimes tur n “ vio le nt. ” Av ila

a lso te sti fi e d th a t Ms . B re we r d id n ot a pp ro ve of he r s on ’s re latio ns hip wi th his girlf riend be cause she had a

criminal re cord a

nd experimented with drug s. Avila elabor ated that one time, af

ter re ceivinga thre ateningvoice- mail from his g irlfriend, Ms. B r e w e r g rabbe d Br andon’s shirt and “slappe d the [ex pletive] out of him.” Avila fu rt h er testified that this incident caused B ra nd on to c on te mpl a te ru

nn ingawa

y fr om h ome . H ow e ve r, oth e r w itn e sses tes ti fie d th a t Ms
. Br ewe r appe are d to be a g ood mother and pa rt of a “ g ood fa m i l y ” t hat g ot along well with eac h other. There was a lso evidence in the rec ord tendingto disprove Br andon’s version of the incident. For

example, there w as evide nce that local investigators, DPS investig ators, and a T exas Rang er c are fu l l y s i ft ed throug h the debr is in the residenc e y et neve r found a ny knives around the body . The jury also hea

rd testimony

that Br andon wa s “ac ting we ird” a fter le arningof his mother’s6

de a th a nd that he did

no t sh ow“ any

ty pe of e mot ion in cry in g o r e xcit e me nt. ” Th e State a lso introduced evidence that Br andon borr owed a 22 caliber

wea pon from a f

riend the morning

of the murder a nd then left school e arly and, upon his return to school, lied to school officia ls and frie nds
a b o u tw h e r e h e h a d

b e e nan d w h y h e s m e l l e d

o f g a s o l i n e . F l o r e n c e H e d g e , a f r i e n d o f t h e f a m i l y, te sti fi e d th a t sh e wa s w ithMs. B re we r t he nig ht be fo re sh e die d and that Ms . B re we r w a s “ ne rv ou s, shaking , and re al sca

red” of B randon. Br an d o n ’s gi rl fr i e n d Ly

n nArn ey t es t i fi edt h at M s . Br ew er wa s a “ re al l y

ca ri n g” woman and that B randon and his mother “see med to ge t along very well.” Ar

ney also testified that she and Ms. Br ewe r “alwa y s g ot a long” but a dmitted on cross-e x amination that Ms. Bre wer did not want her seeingBr andon bec ause Ms. B rew er be lieved Ar ney was influenc ing B randon “ in a neg ative wa

y .” Ar ney claimed that she had a “ rea lly g reat relationship” with Ms. Bre wer and that sh e tr e a te d h e r “ lik e a

da ug hte r. ” Ac c or din g to A rne y ’s te sti mony , s he and Ms. B re we r m

utu a lly
a g re e d th a t sh e and

B ra nd on sh ou ld s top datin g . A rn e y te sti fi e d th a t th is w a s h ard fo r B ra nd on to
acc ept and that he threatened to kill himself.

Ar ne y a lso te sti fi e d th a t, o n th e da y of the mur de r, B ra

nd on vis ite d h e r at he r h ou se and told her that they “ca n be together now and that she was out of t he way .” Arne y testified that she “had no idea what he meant by that” and that she w as “r ather frig htened.” Arne y

further testified that immediately

afte r he told he r that, they took a bath toge ther, and the day afte r his mother died, Br andon propose d marria g e to her
.

Considering all of the e vidence in a neutral light, we hold that the State’s evidenc e of g uil t w a s n ot s o w e a k a

nd the e vid e nc e B ra

nd on c ite s a s jus tif

ic a tio n fo r his c on du c t wa s n ot s o7

strong as to prec lude a rational jury from findingbey ond a re asonable doubt that appellant’s use of de a dly fo rc e wa s n ot j us tif

ie d. We o ve rr

ule B ra nd on ’s so le iss ue on

a pp e a l.
CO NC LU SION Havingoverr

u l ed Br an don’s only

issue on appea l, we af

firm the judg ment of the dis tr ic t c ourt
.

Bob Pembe rton, J ustice Be fore Chief J ustice L aw, Justi ces Pury ear and Pember

ton Affir med Filed: Jul y

28, 2006 Do No t Pu

bli sh