NO. 07-05-0169-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D APRIL 24, 2006

______________________________

COLLIE WILLARD, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-407,115; HON. JIM BOB DARNELL , PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. Appellant, Collie Willard, seeks to reverse his conv iction for ag gravated assault w ith
a dead ly weapon by contesting the factual suff iciency of the evidence. W e affir m th e judgment of the tr ial court. Background Appellant

and Melinda Gonzales, the mothe r of two of his children, were at a part y. W hile there, one of

the female guestsaccused appell ant of stealing some money from her2

aunt. Melinda and the female then began phy sically fighting. Appellant attempted to separate the women, pus hed another female, and r eceived a bl ow from a beer bottle. Adam, the husband of

the female appellant shoved, also began to fight w ith appellant, and thatfight moved ou t into the yard. Appellant eventually r an out of the yar

d, approached
a friend who w

as nearby and obtained a knife from him. He the n returned to the residence ostensibly

to rescue M elinda whom h e believed to still be i n the house. Adam and appellan t were starting to fight again in the yard when Adam’s brother, Chris, charged at

appellant. However, after Adam war ned Chris tha t appellant had a knife, Chris tur ned and ran away. Appell ant gave c hase, caught C hris, and sta bbed him. Factual Suf

ficiency The standard by

which w

e review the factua l suf

ficiency of the evidence is well established. We refer the parties to Zunig a v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), Zuliani v. State, 97 S.W .3d 589 (T ex. Cri m. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 20 00) for an expl anation of it. Appellant

contends that the evidence is factually insufficient to s upport the impli ed finding of the jury that he was a cting neither in self-defense nor in defense of a third person, i.e. Mel inda , w hen h e st abbe d Ch ris . A p ers on i s ju sti fied in u sin g de adly fo rc e against another when and to the degree he rea sonably believes the force is immediately necessary

to protect hi mself against t he other’s use or attempted use of unlawful deadly force and a reasonab le person would not h ave retrea ted. T EX
. P EN
. C ODE A NN
. §9.32(a) (Vernon 2003). Next, a person is justified in using deadly force against another to prote ct
a third person if

under the circumstanc es he 1) would be justifie d in using deadly force to3

protect himself and 2) r easonably bel ieves that his intervention is immediately necessary to protect the thi rd person. Id. §9.33. Thus, to esta blish self-d efens e, it must be sh own thatthe act of stabbing was immediately necessary

for appellant to pr

otect himself or the third person. Cleveland v. State, 177 S.W.3d 374, 380-81 (Tex. App.–H ouston [1 st Dist.] 2005, pet. ref’d); Contreras v . State, 73 S.W.3d 314, 319-20 (Tex . App.–Amarill o 2001, pet. ref’d); Villarrea l

v. State, 61 S.W.3d 673, 681 (Tex. App.–Corpus Christi 200 1, pet. ref’d). Appellant

adm its in his br ief

that the re cord shows that he ra n fre ely into the str eet, obtained a knife, ran back to the scene of the fight, pursued Chris who w as running away and stabbed the fleeing i ndividual in the back. Furthermore, other wi tnesses also a greed thatChris was runnin g from appellant when the stabbing occurred. Based on this evidence, we cannot say that these circumstance s render the verdict clearlyerroneous or manifestly unjust. See Cleveland v . State, 177 S.W.3d at 380-81 (holding t hat it was not immediately necessary for the defendant to defend himse lf when he stabb ed his wi fe after disarming her and while she was si tting on a s ofa when he could have easil y left the house). Ample evidence existed to support a finding that the use by appellant of deadly force against Chris to protect himse lf was not immediately necessary . At the ver y least, the evidence mer

ely created fact issues for the jury to resolve. See Saxton v. Stat e, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (holding that the jury

is free to accept or r

eject the self-defense theory); Vasquez v. State, 2 S.W.3d 355, 359 ( Tex. App.–San Antonio 1999, pet. ref’d) (hold ing the jur y is th e sole judge of the credibil ity of the w itnesses and the weight to be giv en their testi mony on a self-d efense issue).4

So too could the j ury could have found that appel lant was n ot in the proce ss of defending Meli nda at t he timehe stabbed Chri s. There was no evidence that Chris w as threatening Melinda atthat moment or in the moments leading up to it. See Pena v. State, 635 S.W.2d 912, 914 (Tex. App. –Eastland 1982, pet. denied) (hol ding that when the re was no testimony t hat any

threats were directed toward the two women, the defen dant could nothave reasonably believed it was n ecessary for him to stab the v ictim five times to defend them). Because the finding is not manifestly unjust base d upo n the reco rd be for e us, we overruleappellant’s i ssue and affirm the judg ment of the trial c ourt.

Brian Quinn Chi ef Justice
Do not publish

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