COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00143-CR

EDWARD REESE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A Tarrant County jury found appellant Edward Reese guilty of aggravated 

assault with a deadly weapon. The same jury assessed his punishment at 

imprisonment for fifteen years. The issue on appeal is whether there was 

sufficient evidence presented at trial to prove that Reese was not acting in self 

defense. We hold that there was.

 

1See Tex. R. App. P. 47.4.
2

The Evidence

Complainant Jessie Anderson testified that he was fifty-one years old, that 

he was disabled, and that he lived with his wife, mother, and children in an 

apartment in the Village Creek Town Homes public housing project in Fort Worth. 

On June 21, 2008, at approximately 11:15 p.m., Anderson returned home after 

attending his nephew’s birthday party. While at that party, he had consumed four 

beers. When Anderson drove up to his residence, his neighbor Robert Brown 

invited him to join Brown and three others, all of whom were sitting on a bench 

and chairs in front of Brown’s apartment. Anderson went inside his apartment, 

grabbed a beer and a half-pint of brandy, and then joined Brown and the others. 

Approximately fifteen minutes later, Reese came out of his apartment, which was 

located next to Brown’s, and also joined them.

As the evening wore on, everyone eventually left, except for Anderson, 

Brown, and Reese. During that time, Anderson and Reese shared Anderson’s 

brandy. Finally, Brown and Reese, who were clearly intoxicated, began arguing 

with each other. While Brown and Reese argued, Anderson, who was not paying 

attention to the argument, remained off to the side telephoning ―text messages‖ 

to a friend. However, when Brown tried to throw Reese off the bench to get him 

to go home, Anderson told Brown not to do that because Reese was so drunk. 

Reese then asked Anderson what he thought about the subject of the argument. 

Anderson told Reese that Reese did not know all the relevant facts. Anderson 
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added that he was not involved in the subject of the argument and that he 

wanted to be left out of it.

At that point, Reese turned on both Anderson and Brown and repeatedly 

called them obscene names. He stated that he used to like Anderson but now he 

did not, and that he was going to his apartment to get a gun with which to kill 

Anderson. Reese then started walking toward his apartment, still calling 

Anderson an obscene name and threatening to get a gun with which to shoot 

him. Anderson told Reese that he did not have a gun, but Brown stated that 

Reese did have a gun. At that point, Anderson approached Reese, grabbed his 

shirt collar and shook him, and told him to quit making threats and to go home. 

(Anderson denied putting his hands around Reese’s neck or any part of his 

body.)

Reese went into his apartment and moments later stepped back outside 

with a revolver in his hand. He pointed it at Anderson saying, ―Motherf_ _ _ _ _ g 

n_ _ _ _r, I told you I was going to kill you.‖ Anderson turned to run and Reese 

fired one shot at him. Anderson fell down on his hands and knees, got up, and 

ran. Reese chased him, but Anderson was eventually able to hide from Reese. 

Anderson did not go into his apartment, which was located in the next building, 

because his family was there, and he was afraid Reese might shoot through the 

windows. Anderson called ―911‖ on his cell phone while running from Reese. 

Anderson came out of hiding when the police arrived. Blood was dripping from 

Anderson’s finger, and a police officer told him that it appeared as if he had been 
4

hit. Anderson then directed the police to Reese’s apartment. Anderson was 

eventually taken to Harris Medical Hospital and was treated for a gunshot wound 

on his left elbow.

Gilbert Lara, a three-year veteran of the Fort Worth Police Department, 

testified that on June 22, 2008, at 12:18 a.m., he and police officer Donovan 

were dispatched to 5728 Fitzhugh Street in Fort Worth. They arrived at the 

scene at 12:28 a.m. and spoke with Anderson. Anderson appeared upset and 

told them what had happened to him. They drove to Reese’s apartment while 

Anderson remained in the patrol car. They knocked on Reese’s door and when 

he answered, Lara noticed that Reese smelled of alcohol. Reese, when 

questioned, said he had gotten into a heated argument with Anderson and that 

Anderson had threatened to harm him. Reese did not specify what Anderson 

had allegedly threatened to do. Reese stated further that when Anderson let him 

go, he told Anderson that he was not going to let Anderson threaten him, and 

that he then went inside his apartment, grabbed his revolver, and fired one round 

at Anderson.

When Lara asked Reese where the gun was, Reese claimed that he threw 

it near a dumpster. Donovan then accompanied Reese to the dumpster to 

retrieve the revolver. While Donovan and Reese were away, Lara found the 

revolver under a couch cushion inside Reese’s apartment. When Lara asked 

Reese why he had lied about the gun, Reese said that he did not know. Lara 

then arrested Reese and transported him to the county jail.
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When Lara was asked by defense counsel whether the shot Reese had 

fired could have ricocheted off the sidewalk, he said that ―anything is possible.‖ 

Lara identified the revolver in court as the weapon recovered in Reese’s 

apartment. Lara testified further that a medical service call was made for 

Anderson because he had an injury to his left elbow. Reese, however, had made 

no claim of injury. The State also presented testimony concerning the ―911‖ call 

and Anderson’s medical records, as well as a forensic expert’s testimony 

concerning the revolver. 

After the State rested, Reese, after being admonished outside the 

presence of the jury, waived his right not to incriminate himself and took the 

witness stand. Reese testified before the jury that he had lived in the Village 

Creek Apartments for about seven years prior to the incident in question, and 

that he was a twenty-year veteran of the United States Army. He told the jury 

that he was an expert rifleman. He also told the jury that he was fifty years old,

he wore a prosthetic foot, and walked with a cane. Reese testified that he lived 

next door to Brown and that they argued all the time, but that they had never 

raised their hands against each other. He said that he had met Anderson around 

2006. He admitted possessing a .357 Magnum revolver that he kept in his 

bedroom, and that it belonged to his nephew.

Reese said that on the night of the incident he was watching television and 

drinking beer. Sometime after dark, he walked outside and over to the bench 

where Brown and Anderson were sitting. He was not using his cane then 
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because he was wearing his prosthetic foot. He and Brown immediately began 

arguing about a neighbor ―messing around‖ with a young girl. (As far as can be 

determined from the record, the argument concerned the fact that Brown had 

previously informed Reese that a neighbor was ―messing‖ with a young girl. 

Reese had then told the neighbor, who in turn had complained to Brown.) 

Anderson told Reese that he was in the wrong and that made Reese angry.

Reese described to the jury how he had walked toward his apartment, and 

had made it as far as his front porch when Anderson grabbed him tightly around 

the neck, choking him, stating that he was going to beat him up, and saying that

he did not care if Reese was disabled. According to Reese, when Anderson let 

go of him, Reese was angry, and he went inside his apartment and retrieved his 

gun from his bedroom. When Reese returned to his front door, Anderson was 

standing in the grass just off Reese’s porch and Reese shot at him. Anderson 

jumped up and then fell to the ground before getting up and running away. 

Reese denied that he had chased Anderson. Reese then went inside his 

apartment and threw the gun under the pillow on his couch. He returned to his 

front porch and sat there until the police arrived.

A police officer asked him whether he had a weapon and Reese admitted 

that he had lied, telling them he threw it in the dumpster. He did not know why 

he had lied to the officers.

Reese maintained that he had not been trying to hit Anderson when he 

shot at him. He claimed that at the time he fired the shot, he believed that he 
7

was in imminent danger. He claimed further that he fired a single shot at the 

ground and did not run after Anderson when Anderson ran away.

Reese admitted to the jury that he did not tell the police that Anderson had 

choked him. He claimed that Anderson was younger, taller, and more physically 

able than he was.

The Arguments

Reese argues now that (1) there is no question that Anderson initially 

attacked him on his own property, and that he is smaller than Anderson and 

physically disabled; (2) the evidence shows that he had returned to his home and 

got the firearm only to defend himself; (3) when he went outside again, Anderson 

was still facing him in the middle of his front yard; (4) he had been afraid for his 

life, and had fired a single shot into the ground so as to scare Anderson away; 

and (5) he faced apparent danger and fired in self-defense. He further argues 

that near where Anderson was standing was a concrete sidewalk, and that the 

one shot that he fired must have ricocheted and accidentally hit Anderson.

Reese argues that the evidence adduced at trial was insufficient to support 

his conviction because it showed that he acted in self-defense. The State 

contends that there was sufficient evidence at trial to support the jury’s rejection 

of Reese’s claim of self-defense.

Analysis

In our due process review of the sufficiency of the evidence to support a 

criminal conviction, we view all the evidence in the light most favorable to the 
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prosecution to determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007).

A defendant has the burden of producing some evidence to support a 

claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 

2003). Once such evidence is produced, the burden shifts to the State to 

disprove the defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 

910, 913 (Tex. Crim. App. 1991). This burden of persuasion does not require the 

State to produce evidence to refute the self-defense claim, but requires only that 

it prove its case beyond a reasonable doubt. Id.

Self-defense is an issue of fact to be determined by the jury, which is free 

to accept or reject the defensive evidence. The jury, as the factfinder, is the sole 

judge of the weight and credibility of the evidence. Brown v. State, 270 S.W.3d 

564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). A jury’s 

guilty verdict is an implicit finding rejecting the defendant’s self-defense theory. 

Saxton, 804 S.W.2d at 914. Thus, in reviewing the sufficiency of the evidence to 

support the jury’s rejection of Reese’s self-defense claim, we examine all the 

evidence in the light most favorable to the verdict to determine whether any 

rational trier of fact could have found the essential elements of the offense and 

also could have found against Reese on the self-defense claim, beyond a 

reasonable doubt. Id.
9

Reese finds no fault in the trial court’s charge on self-defense, which 

instructed the jury to acquit Reese if it found—or if it had reasonable doubt—that 

Reese reasonably believed that his use of force was immediately necessary to 

protect himself against Anderson’s use or attempted use of unlawful force.

Applicable Law

A person commits the offense of ―assault‖ if he intentionally, knowingly, or 

recklessly causes bodily injury to another, or if he intentionally or knowingly 

threatens another with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)

(West 2011). That offense becomes ―aggravated‖ if, among other possibilities, 

the person uses or exhibits a deadly weapon during commission of the assault. 

Id. § 22.02(a)(2). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A).

A person may lawfully use force against another ―when and to the degree 

the actor reasonably believes that force is immediately necessary to protect the 

actor against the other’s use or attempted use of unlawful force.‖ Id. § 9.31(a). A

person is not justified when using force against another in response to mere 

verbal provocation. Id. § 9.31(b)(1). One’s use of force in self-defense is 

presumed to be reasonable if the actor had reason to believe that the person 

against whom the force was used was committing or attempting to commit 

aggravated kidnapping, murder, sexual assault, aggravated sexual assault, 

robbery, or aggravated robbery. Id. § 9.31(a)(1)(C).

A person may use deadly force in self-defense ―when and to the degree 

the actor reasonably believes the deadly force is immediately necessary (A) to 
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protect the actor against the other’s use of or attempted use of unlawful deadly 

force; or (B) to prevent the other’s imminent commission of aggravated 

kidnapping, murder, sexual assault, aggravated sexual assault, robbery or 

aggravated robbery.‖ Id. § 9.32(a)(2) (deadly force and defense of person).

The defendant may not have provoked the person against whom the force 

was used. Id. § 9.31(a)(2); see also Id. § 9.31(b)(4) (stating that provocation 

bars subsequent self-defense claim unless the actor had previously abandoned 

the encounter and the other nevertheless continues or attempts to use unlawful 

force).

Viewing the evidence in the light most favorable to the jury’s verdict, we 

hold that a rational jury in this case could have logically found beyond a 

reasonable doubt that Reese did not himself reasonably believe, or was 

unjustified in believing, that deadly force was necessary to protect himself from 

the use or attempted use of any deadly force by Anderson. See Jackson, 443 

U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. This is true for 

several reasons.

First, since there was no evidence that Anderson was attempting to 

kidnap, murder, sexually assault, rob, enter or attempt to enter Reese’s 

apartment with force, or remove or attempt to remove Reese from his apartment 

with force, the jury was not required to presume that Reese’s use of deadly force 

was reasonable. See Tex. Penal Code Ann. § 9.31(a)(1) (A–C).
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Second, the evidence showed that Reese used foul language and threats 

toward Anderson. Admittedly, Anderson responded in a similar fashion and 

acted in a similar manner toward Reese. This could have been viewed by the 

jury as nothing more than verbal provocation and, of course, a person is not 

justified in using force, especially deadly force, against another in response to 

mere verbal provocation. See Id. § 9.31(b)(1).

Third, the evidence is undisputed that the initial confrontation between the 

parties had ended at or near Reese’s front porch and that Reese had returned to 

his apartment before he then chose to reinitiate the confrontation by grabbing his 

revolver and going back to the front door and shooting toward Anderson. Under 

our law, once the initial encounter has ended, a defendant may not reinitiate the 

encounter. See Id. § 9.31(b)(4).

Furthermore, the actor must reasonably believe that the use of force is 

immediately necessary. Id. § 9.32(a)(2). The jury was entitled to conclude that 

Reese’s acts of returning to his apartment after the initial verbal confrontation 

had ended, then getting his gun and returning outside, and then using deadly 

force in response to the use of non-deadly force did not support a reasonable 

claim of necessary self-defense on Reese’s part.

The jury was also entitled to believe Reese’s own testimony on crossexamination that he retrieved his gun not out of self defense, but because he was 

angry and wanted to scare Anderson.
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Finally, the jury could have reasonably determined that Reese’s decision to 

react to Anderson’s choking him by getting his firearm from the apartment and 

shooting Anderson was unreasonable, since our law permits a person to use 

deadly force in self-defense only to the extent such force is immediately

necessary in response to the similar use of unlawful deadly force. Id.

§ 9.32(a)(2)(A).

In making a credibility determination, the jury could have reasonably 

determined that Reese’s decision to use deadly force was unreasonable, given 

that Anderson never used or threatened to use deadly force against him. The 

jury could have reasonably believed that Anderson grabbed Reese’s shirt collar 

and shook him, but that Anderson never put his hands around Reese’s neck. 

Reese, by his own admission, never told the police that Anderson had choked 

him. Even if Anderson had placed his hands around Reese’s neck, as Reese 

first mentioned during his trial testimony, that conduct did not authorize use of 

deadly force by Reese under the facts presented here.
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Given all these considerations, we hold that sufficient evidence supported 

the jury’s rejection of Reese’s self-defense claim. We affirm the trial court’s 

judgment.

PER CURIAM

PANEL: CHARLES R. HOLCOMB (Senior Judge, Retired, Sitting By 

Assignment); DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 14, 2011