Branigan, Mark ( 2015 )

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WO:
ORIGINAL
IN THE
COORT OF CRIMINAL APPEALS
AUSTIN, TEXAS
COURT OF CRIWAUPPatS
MARK BRANIGAN.
SEP 14 2015
Petitioner.
vs .
THE STATE OF TEXAS
Respondent.
On Petitioner For Discretionary Review
from the Second Court of Appeals. Fort Worth. Texas
No. 02-13-00490-CR
Mark Branigan
Clements Unit - 188 7004
y601 Spur 591
Amarilio. TX 791^|L^fN
COURT OF CRIMINAL APPEALS
SEP 16 2015
Abel Acosta, Clerk
TABLE DF CONTENTS
TABLE OF CONTENTS .
INDEX OF AUTH0RITES 11 .
STATEMENT REGARDING ORAL ARGUMENT- iii
STATEMENT OF THE CASE iii
STATEMENT OF PROCEDURAL HISTORY.. iii
GROUNDS FOR REVIEW
GROUND ONE 1.
GROUND TWO 1 .
ARGUMENT ONE 1 .
ARGUMENT TWO ' . 2.
PRAYER k .
APPENDIX
l .
INDEX OF AUTHORITIES
Cleveland v. State,
177 S.U.3d 374 (Tex .App.-Houston [1st Dist.] 2005)
Jackson v. Virginia
443 U.S. 307, 99 S. Ct. 2781 (1979)
Moore v . State ,
278 S .W .3d 444(Tex.App.-Houston [14th Dist.] 200 9)
McDuff v. State,
939 S.W.2d 607 (Tex .Crim App-. 1997)
Zulianav.State,
97 S.W.3d 589 (Tex .Crim.App. 2003)
li .
STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner is proceeding prase and the issues addressed
are not complex in a legal nature, he waives and does not request oral
argument .
STATEMENT OF THE CASE
Petitioner is convicted by jury of the felony offense of muraer
from a contaminated crime scene.and uncoorborated tesimony of various
witnesses which resulted in a 40-year imprisonment in lieu of the
evidence.
STATEMENT OF PROCEDURAL HISTORY
On October 26. 2012, the state filed an Indictment in which they,
allege that on or about August 2, 2012. in Tarrant County. Texas, the
Petitioner intentionally caused the death of. Danny Lafedge. by shooting
him with a firearm. The indictment also allged a repeat offender
paragraph.
Petitioner entered a plea of not guilty to the jury for guilt-
innocence and presented the affirmative defense of self-defense to
the murder charge.. The jury found Petitioner guilty and found true
the repeat offender enhancement and assessed punishment at 40-years
imprisonment.
Petitioner made direct appeal;to the Second Court of Appeals
in Fort Worth. Texas and on June 4, 2015, the Court affirmed the murder
conviction in an unpublished opinion. From said opinion Petitioner
now seeks Discretionary Review.
in .
GROUNDS FOR REVIEW
ERROR FOR REVIEW ONE
THE SECOND COURT OF APPEALS ERRED IN FINDING THAT THE EVIDENCE
WAS LEGALLY SUFFICIENT TO PROVE PETITIONER DID NOT SHOOT MR.
LAFEDGE IN SELF-DEFENSE.
ERROR FOR REVIEW TWO:
THE SECOND COURT OF APPEALS ERRED IN RULING THAT THE TRIAL COURT
DID NOT ABUSE IT'S DISCRETION IN DENYING THE MOTION FOR MISTRIAL
FOR PROSECUTOR'S UNFOUNDED STATEMENT ON SELF-DEFENSE.
ARGUMENT
ERROR FOR REVIEW ONE RESTATED
THE SECOND COURT OF APPEALS ERRED IN FINDING THAT THE EVIDENCE
WAS LEGALLY SUFFICIENT TO PROVE PETITIONER DID NOT SHOOT MR.
LAFEDGE IN SELF-DEFENSE.
When evaluating a legal sufficiency claim, courts consider all
the evidence. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim .App .1997 ).
Self-defense is classified as a defesne as distinguished from an
affirmative defense. Zuiiana v. State, 97 S.W.3d 589, 594 (Tex.Crim.
App. 2003). With a defense, the burdens at trial alternate between the
defesne and the State, with the defendant bearing the burdenof produc
tion of some evidence to support the particular defense and, once the
defendant has met that burden, the state bearing the burden of persuation
to disprove the raised defense. Id. In short, when a defendant raises
the issue of self-defense, the state, in order to convict him or murder,
first must prove the elements of the offense beyond a reasonable doubt r.
and then has to persuade the jury that the defendant did not act in
self-defense. Cleveland v. State, 177 S.W.3d 374, 379 (Tex .App .-Houston
[1st .Dist] 2005) .
Page 1
The following facts were prsented to the jury which clearly, in
relation to the evidence estadlishes that Petitioner acted in self-
defense:
)( Petitioner was not hunting the victim;
)( Petitioner was attempting to return his apartment whenthe
victim approached Petitioner in an agry manner;
)( The victim was attempting to retrieve a gun;
)( The victim was under the influence of marijuana, hyddrocodone,
and an opiate derivative;
)"•(•'• The victim had previously been extremely proud of his gun and
even had a picture taken'with it showing him throwing gang signs;
)( The victim sold drugs;
)( No witness ever saw Petitioner fire a gun;
)( No fingerprints of gun or shells we conducted;
)( There was a massing firearm from the crime sceene;
)( All the witness testimony contradicted each other;
~ )( .'•Petitioner clearly was defending himself against being murdered
himself.
Any rational trier fact •could ••have easily determined that the
Petitioner was only defending himself against being assaulted or murdered
I .d Jackson § 319.
ERROR FOR REVIEW TWO RESTATED: ' .
THE SECOND COURT OF APPEALS ERRED IN FINDING THAT IHE TRIAL COURT
DID NOT ABUSE IT'S DISCRETION IN DENYING THE MOTION FOR A MISTRAIL
FOR PROSECUiOR"S UNFOUNDED STATEMENT UN SELF-DEFENSE.
Page 2
In reviewing page 44 of the Appellate brief the statement made by
the Prosecutor regarding Petitioner loading a gun was expounded upon
and was clearly established that the statment about"loading a gun is
not self-defnese in any form or fashion." The statement made by the
prosecutor planted a poisoned seed in the minds of the jury that due
to the fact that Petitioner admitted to loading a gun negates any theory
of self-defense.
Appellat courts review a trial court's denial of a motion' for mistrial
as an abuse of discretion. Moore v. State, 278 5.W. 3d 444, 449 (Tex.
App.-Houston [14th Dist]. 2009). Mistrial are appropriate only for
highly prejudicial and incurable errors.. Id. When determining whether
a new trial nonetheless is mandated despite an instruction to disregard,
the Appellate courts look at the facts and circumstances of the case
to see if the trial court's instruction cured the presentation of
objectionable matter before the Jury. Id. @ 450.
The trial court took the curative measure of instructing the jury
to disregard the prosecutor's statement. However,the court's jury
instruction was ineffective, the damage was already done to the jury
in the effect they now believed that by loading a gun there is no way
for self-defense. Id. Moore @ 45U. Because the evidence as clearly
presented in error one uas= insufficient to support, a conviction, the
prosecutor needed to get the unlawful statement to the jury to secure
a conviction and it worked.
Page 3
PRAYER
Wherefore, premises considered, Petitioner prays that the. Honorable
Court of Criminal Appeals grant review and after review of the errors
presented.herein, reverse the Second.Court of Appeal's judgment of
affirmation and Order the entry of an aquittal and or grant any and all
other relief to which Petitioner is entitled.
Respectfully submitted,
Mark Branigan
Clements Unit t 188704
9601 Spur 591
Amarilio. TX 79107-9606
Pro se
August 24, 2015
CERTIFICATE OF SERVICE
This is to certify that I have on this 24th day of August, 2UT5,
placed a true and exact copy of this document in the U.S. Mail, postage
pre paid addressed to:
Sharon A. Johnson,
AssistantDistrict.Attorney
Tim.Curry Criminal Justice Center
401 W. Belknap
Fort Worth. TX 76196
Page 4
APPENDIX
Due to the fact that Petitioner is a pro se prisoner 'and without
any type of access to a copy machine he is not able to supply a copy
of the only Second Court of Appeal's June 4, 201.5^opinion .
Page 5.
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00490-CR
MARK BRANIGAN APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1292313D
MEMORANDUM OPINION1
I. Introduction
Appellant Mark Branigan appeals his conviction for murder. In two issues,
Branigan argues that the evidence is insufficient to support the jury's
determination that he did not act in self-defense when he admittedly shot and
killed Danny Lafedge and that the trial court erred by denying his motion for
mistrial. We will affirm.
1See Tex. R. App. P. 47.4.
II. Background
Heather Goldsmith testified that around 3:00 a.m. on August 2, 2012,
Brandon Jackson and his friends came by her apartment and stayed for a couple
of hours. Later in the morning, Goldsmith and Lafedge, who was staying with
her, discovered a loaded Hi-Point 9 millimeter handgun between the armrest and
cushion of the sofa. By Goldsmith's account, Branigan then came by the
apartment around 11:00 a.m. and Lafedge showed him the gun. Goldsmith said
that while she was on the phone, Branigan took the gun without permission and
left. Goldsmith stated that she called after him, repeatedly telling him to bring the
gun back, but that Branigan ignored her demands.
Goldsmith said that she then got into her car and followed after Branigan,
shouting at him to bring the gun back, but that he just walked away even faster.
By Goldsmith's account, she then saw Branigan go into another apartment, so
she parked her car in front of it. When Branigan came back out, Goldsmith
testified that she again told him he needed to return the gun and that he told her
he would return it later. Goldsmith said that she started to drive back to her
apartment but that after talking with her boyfriend on the phone, she returned to
the apartment she had seen Branigan enter, knocked on the door, and asked to
speak with him. Branigan never came to the door, so Goldsmith drove back to
her apartment, where she told Lafedge that Branigan had taken the gun. From
there, according to Goldsmith, Lafedge went to retrieve it.
Steven Perry testified that on the same day, he was in the apartment of
Megan and Melody Saltzman when he saw a car pull up in front with two people
inside the car. They got out and started arguing. According to Perry, Branigan
then went inside the apartment and the woman he had been arguing with drove
off. Perry said that Branigan appeared "flustered" and "really, really upset" and
that he was cursing about Lafedge. Perry said that the woman in the car
returned and knocked on the apartment door, asking for Branigan. Perry said
that he told her that he did not know who Branigan was and sent her away.
Perry testified that he then saw Branigan pull a gun out of his waistband, load it,
and wave the gun around. Branigan asked Perry to give him a ride to some
nearby apartments, but Perry refused because he "did not want to be involved
anymore with what was going on." Branigan left on foot.
As he watched Branigan from the apartment window, Perry said he saw
Lafedge come across the parking lot, "walking very fast" toward Branigan.
According to Perry, as Lafedge neared Branigan, Branigan pulled the gun from
his waistband and shot him. Perry testified that Lafedge did not have a weapon.
By Perry's account, Branigan shot Lafedge, then there was a pause, and then
Perry "heard a couple more [shots] and [he] saw [Lafedge] go to the ground."
Perry said that Lafedge fell behind a car, blocking his view of him, but he then
saw Branigan point the gun toward the area where Lafedge had fallen and
continue shooting. Perry said that Branigan then ran away, carrying the gun.
Perry immediately ran outside, where he found Lafedge lying on the ground.
William Hendrix testified that he was also in the Saltzmans' apartment
when Branigan showed up on August 2. Hendrix described Branigan as "pretty
irrational" and said that he was "yelling, screaming about a guy being at his
buddy's house selling his drugs and being around his wife." According to
Hendrix, Branigan said he was going to "get that mother " Hendrix said he
then heard a gun's slide being pulled back, and looked over to see Branigan
picking up a bullet that he apparently had just ejected from the chamber of the
gun he was holding. Hendrix said that Branigan then loaded the bullet back into
the gun's clip. Hendrix said that Branigan also asked him for a ride but that he
refused "[b]ecause [he] knew [Branigan] had a gun on him."
When Branigan left, Hendrix also looked out the apartment's window and
watched Branigan until he was out of sight. Hendrix testified that he then noticed
a man walking across the parking lot and that although he could not make out the
words, he heard Branigan "yelling and screaming" at the man. Hendrix said he
heard four gunshots within short order. Hendrix averred that he then went
outside, "peeked [his] head out around the corner," and saw Lafedge lying on the
ground with Branigan standing over him declaring "I got you now, mother—"
Hendrix said he heard Lafedge yell, "No," but Branigan continued to fire the gun
"until it was empty," at which point Branigan then ran away. Hendrix also testified
that Lafedge had no weapon.
After the shooting, Hendrix went to visit his sister, Danielle Rice, who lived
in a neighboring apartment complex. To his surprise, he found Branigan inside
her apartment. Hendrix said that Branigan asked him, "Is [Lafedge] dead?"
Hendrix asked Branigan to step outside. While outside, Hendrix said he asked
Branigan if he still had the gun and Branigan replied that he had thrown it into
"the creek." Hendrix said that he then left his sister's apartment, called his
mother, and told her to get his sister out of the apartment. From there, Hendrix
flagged down a police officer and told him about the shooting.
Zakarie Barksdale was also in the Saltzmans' apartment that day. Like the
testimony of others, Barksdale described Branigan as "irritated, aggressive," and
"definitely mad at someone about something." Barksdale said that Branigan was
using profanity and that his comments were directed at Lafedge. According to
Barksdale, the sound of Branigan dropping the gun's clip and ejecting a bullet
attracted his attention toward the fact that Branigan was holding a gun.
Barksdale recalled that after Goldsmith came to the apartment and was turned
away, Branigan left. After hearing a gunshot, Barksdale said he "ran outside to
see what was going on" and then heard "five more" shots. Once outside, he saw
Lafedge lying on the ground with Branigan standing over him. Barksdale said he
heard Branigan say, "I told you I was going to kill you." Like Perry and Hendrix,
Barksdale testified that Lafedge did not have a weapon. According to Barksdale,
after Hendrix had briefly pulled him back inside the apartment, he saw Branigan
run by the patio door "with the gun in his hand," so he ran back outside to
Lafedge and stayed by him as he died.
Rice testified that on August 2, she and her sister were outside Rice's
apartment, watching their children play, when Branigan walked up and started a
conversation. She said that she recognized Branigan from his previous visits to
her neighbors. When Rice and her family went inside, Branigan accompanied
them, asking for a drink of water. Once inside, according to Rice, Branigan then
pulled out a "blunt" and offered to share it with them. Rice testified that as the
three of them smoked, Branigan told them that he had just shot and killed
someone. Rice said that Branigan also told them that no one saw him and the
police could not prove that he had shot someone because he had discarded the
gun. By Rice's account, Branigan said if he was questioned, he would say he
was with Rice and her sister, and he asked them if they would be his alibi. Rice
testified that Branigan "didn't really seem too like regretful" about shooting
Lafedge. When he asked her sister for a number, Rice said she then realized he
was serious about the shooting and his need for an alibi. Rice said that she then
gave Branigan a candle and some home decor catalogs and told him that he
could use them as proof that he was at her apartment during the time of the
shooting.
Fort Worth Police Officer Andy Morquecho testified that when they located
Branigan, he told officers, "I'm not going to run from yiall; I almost got shot myself
at that apartment." Morquecho said that as he transported Branigan to the police
station after arresting him for an unrelated charge, Branigan volunteered that he
had discarded the gun used in Lafedge's murder. On cross-examination,
defense counsel asked Morquecho whether Branigan's statement that he had
almost gotten shot was suggestive of self-defense. Morquecho replied, "In my
opinion, no. And the reason why, he was very calm and collected. A person that
I've noticed that had problems in the past or in a fight, they want to tell you their
whole story and they're flustered, and -- and this was not the case." Morquecho
testified that during his investigation of Lafedge's murder, he was unable to
recover the weapon used to kill Lafedge.
Susan Roe, a forensic pathologist for the Tarrant County Medical
Examiner's Office, testified that Lafedge had suffered four entry gunshot wounds:
one to his left upper chest, one in the lower right side of his chest, one to the top
of his foot, and one to the fourth finger of his left hand. According to Roe,
Lafedge also had graze wounds on the fourth finger of his right hand and his left
elbow. Roe said that the graze wounds might have been caused by the same
bullets that struck Lafedge's body. Roe testified that as a result of the gunshot
wounds, Lafedge suffered extensive injuries, including damage to his pulmonary
artery, his left lung, and his liver. Roe estimated that Lafedge was struck by
between four and six bullets. Roe said that Lafedge's injuries were not
survivable.
Vicki Hall, a trace evidence examiner with the Tarrant County Medical
Examiner's Office, testified that test results for gunshot residue on Branigan were
inconclusive. The gunshot residue test on Lafedge's hands, however, revealed
antimony, barium, and lead on the backs and palms of both his hands.
According to Hall, the residue on Lafedge's hands could have been deposited if
he held his hands up while being shot at.
In its case-in-chief, the State offered a seventy-five minute excerpt of
Branigan's recorded interview with Fort Worth Police Detective Danny Paine. In
the interview, Branigan denied shooting Lafedge. Moreover, Branigan claimed to
have witnessed another individual commit the murder. Branigan can be heard
telling Paine a narrative wherein Lafedge was planning to trade a gun for
marijuana and asked Branigan to go along to "watch [his] back." Branigan
identified the individual Lafedge was allegedly planning the trade with as "G."
According to Branigan's statement, he told Lafedge not to hand "G" a loaded
gun. But, according to Branigan's story in the interview, Lafedge did give "G" a
loaded weapon and received a "nice-sized package" of marijuana in return.
Branigan said that from there he saw the two men begin to exchange
words and heard twelve to thirteen gun shots; he ran from the scene without
"look[ing] back." Branigan can be heard saying that he met a girl named
"Melissa" and told her that his friend got shot because his friend was stupid and
gave someone a gun. But then Branigan can be heard contradicting a portion of
his statement to Paine, saying he did not know Lafedge was going to trade the
gun and that he just thought Lafedge was carrying it for protection. In the
interview, Branigan insisted he did not shoot Lafedge.
After Branigan finished telling his story, Paine confronted Branigan with the
fact that several witnesses had identified him as the shooter. Paine can be heard
8
telling Branigan that if Lafedge had done something to provoke or frighten him, or
if he thought Lafedge was about to shoot him, he needed to tell Paine about it.
Branigan responded, "I ain't fired no gun, man."
Shortly thereafter, Paine again told Branigan that he could understand
Branigan shooting Lafedge if he thought he was about to get shot himself and
that if something like that happened, they needed to talk about it. For the next
fifteen minutes Paine continued to encourage Branigan to tell him whether he
had acted in self-defense, assuring him that everyone understands that a person
has the right to defend himself, and Branigan continued to deny shooting
Lafedge.
The defense called Ellen Dexter, who testified that on August 2, she was
lying on her couch when she heard two gunshots and went outside. Dexter said
that she saw a man lying on the ground and saw a white woman and a black
man standing nearby. Dexter testified that the woman was having a discussion
with the man and that the woman was holding something that "looked like a gun."
On cross-examination, however, Dexter said that her memory is sometimes fuzzy
due to her medications, and she agreed that the item in the woman's hand could
have been a cell phone.
Branigan testified at trial. He began his testimony by admitting to having a
prior conviction for robbery in Illinois, where he stole a car at gunpoint, and a
prior conviction for assault in Missouri, where he shot at a police officer.
Branigan testified that Lafedge had lived with him until three days prior to
the shooting and that their living arrangements changed when Branigan's
girlfriend found out that the two of them were selling marijuana out of the
apartment. According to Branigan, his girlfriend told him they had to stop selling
drugs from their apartment but when he told Lafedge, the two had a falling out
because Lafedge did not believe Branigan's story and wanted to keep selling.
By Branigan's account, when he went by Goldsmith's apartment on
August 2, she told him to take the gun home with him. He said that Goldsmith
then drove him to the Saltzmans' apartment and that he told her that when her
boyfriend got out of jail, he was going to tell him "something was going on"
between her and Lafedge. It was then, according to Branigan, that Goldsmith
demanded that he give the gun back but that he refused.
Branigan said that Lafedge had come to the Saltzmans' apartment looking
for him, but the apartment's occupants turned him away. Branigan said that he
waited for a brief time, hoping that Lafedge was gone, and then started toward
his own apartment.
Branigan averred that it was then that Lafedge came up behind him with a
gun and fired two shots. Branigan testified that he was in fear for his life, so he
returned fire, emptying his gun.
Branigan said that he then ran from the scene because he was scared,
and ended up at Rice's apartment, where he told her that he had "shot somebody
[he] loved, [he] cared for, but [Lafedge] forced [him] to do it." Branigan said that
10
Rice offered to furnish him with an alibi, but he told her he did not need one.
Branigan testified that the story he told Paine in the recorded interview was a
fabrication.
The jury returned a verdict of guilty, and after Branigan pleaded true to the
State's enhancement paragraphs, the jury assessed punishment at forty years'
incarceration. The trial court entered judgment accordingly, and this appeal
followed.
III. Discussion
A. Self-Defense
In his first issue, Branigan argues that the "evidence is legally insufficient
to show [he] did not shoot Lafedge in self-defense." We disagree.
1. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
11
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
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). After the defendant has introduced some evidence of a defense, the
State bears the burden of persuasion to disprove it. Id.; Saxton v. State, 804
S.W.2d 910, 913-14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285,
291 (Tex. App.—Fort Worth 2004, pet. ref'd). This burden does not require the
State to produce evidence disproving the defense; it requires only that the State
prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton,
804 S.W.2d at 913; Dotson, 146 S.W.3d at 291. To determine the sufficiency of
the evidence to disprove self-defense, the appellate court asks whether, after
12
viewing all the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the charged
offense beyond a reasonable doubt and also could have found against the
appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804
S.W.2d at 913-14; Dotson, 146 S.W.3d at 291.
2. Applicable Law
As charged in this case, a person commits murder if he intentionally or
knowingly causes the death of a person or if he intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death
of a person. Tex. Penal Code Ann. § 19.02(b)(1)-(2) (West 2011). Also as
charged in this case, a person is justified in using force against another when
and to the degree the person reasonably believes the force is immediately
necessary to protect against the other's use or attempted use of unlawful force.
See id.§ 9.31(a) (West 2011).
3. Discussion
Here, the evidence is sufficient to support Branigan's murder conviction
and the jury's rejection of self-defense. Viewing the evidence in the light most
favorable to the verdict and resolving any conflicting inferences in favor of the
prosecution, the evidence reflects that Branigan took a Hi-Point 9 millimeter
handgun from Goldsmith's apartment despite her repeated protests to return it.
From there, Branigan, in an agitated state of mind and specifically enraged
toward Lafedge, entered the Saltzmans' apartment, where multiple people saw
13
Branigan brandish and load the gun. Testimony further revealed that Branigan
was specifically angry with Lafedge regarding another man's wife and drug
dealing. Witnesses testified that Branigan's presence and demeanor in the
apartment, coupled with him possessing a firearm, caused them to fear giving
him a ride. Thus, Branigan left on foot, where he encountered Lafedge in the
parking lot and, after yelling and screaming at him, shot him. Multiple witnesses
testified seeing Lafedge on the ground as Branigan continued shooting him, and
multiple witnesses said that Lafedge did not have a weapon. Further, multiple
witnesses testified that upon shooting Lafedge, Branigan could be heard stating
things like "I got you now, mother. " and "I told you I was going to kill you." The
State also introduced evidence that Lafedge may have held his hands up to
defend himself against being shot at by Branigan.
Multiple witnesses also testified that after fleeing the scene of the shooting,
Branigan bragged about killing Lafedge, told of disposing of the murder weapon,
and attempted to fabricate an alibi. See Clay v. State, 240 S.W.3d 895, 905 n.11
(Tex. Crim. App. 2007) (noting that evidence of flight evinces a consciousness of
guilt); see also Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994)
(op. on reh'g), cert, denied, 519 U.S. 1030 (1996) (holding that acts designed to
reduce the likelihood of prosecution, conviction, or incarceration for the offense
on trial show a consciousness of guilt).
Also, after police apprehended him, Branigan's statement was that
someone else had shot Lafedge. And despite Paine giving Branigan repeated
14
opportunities to claim self-defense, Branigan maintained his statement that
another person had killed Lafedge. See Ramirez v. State, 229 S.W.3d 725, 729
(Tex. App.—San Antonio 2007, no pet.) (op. on reh'g) (upholding a murder
conviction where the defendant claimed the shooting was an accident but failed
to call the police or hospital and told inconsistent stories about the incident).
Although Branigan testified that he shot Lafedge in self-defense and that
Lafedge, and not "G," had come looking for him, it was for the jury to determine
whether Branigan's testimony was more credible than that of other witnesses,
and we are not permitted to re-evaluate the weight and credibility of the
evidence. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We must presume that the jury resolved any conflicts in testimony in favor of the
prosecution and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793.
We hold that a rational trier of fact could have found Branigan guilty of
murder beyond a reasonable doubt by choosing to believe the evidence favoring
that he intentionally or knowingly caused the death of Lafedge, or that he
intended to cause serious bodily injury and committed an act clearly dangerous
to Lafedge's life that caused Lafedge's death, and by choosing to disbelieve the
evidence favoring that he was justified in using force against Lafedge to the
degree he reasonably believed immediately necessary to protect himself against
Lafedge's use or attempted use of unlawful force. See Smith v. State, 352
S.W.3d 55, 63 (Tex. App.—Fort Worth 2011, no pet.) (holding that it was jury's
15
prerogative to resolve conflicting evidence in favor of assault conviction and not
in favor of self-defense); see also Denman v. State, 193 S.W.3d 129, 132 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref'd) ("Because the jury, by finding
appellant guilty, implicitly rejected his self-defense theory, it necessarily chose
not to believe the testimony concerning such."). We overrule Branigan's first
issue.
B. Motion for Mistrial
In his second issue, Branigan argues that the trial court erred by denying
his motion for mistrial. We disagree. We review a trial court's denial of a motion
for mistrial under an abuse-of-discretion standard. See Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009); Archie v. State, 221 S.W.3d 695, 699
(Tex. Crim. App. 2007).
During the State's questioning of Branigan, the following exchange
occurred:
[Prosecutor]: So before anyone pulled a gun on you, you had a
plan to shoot someone, didn't you?
[Branigan]: No, ma'am.
[Prosecutor]: Well, that's not what you just told this jury.
[Branigan]: All right.
[Prosecutor]: What you just - you have to let me finish.
What you just told this jury is: I heard people
coming around. No one has pulled a gun on you at all at this point,
and you've decided, I'm going to start loading my gun, correct?
[Branigan]: Yes, ma'am.
16
[Prosecutor]: You understand that's not self-defense in any form or
fashion. Do you understand that?
[Branigan]: No, ma'am.
[Defense counsel]: Your Honor, I'm going to object to that on - on
legal grounds. It doesn't even involve - loading a gun doesn't
involve self-defense in these circumstances.
THE COURT: I'm going to sustain the objection. You're -
[Defense counsel]: Ask for the jury -
THE COURT: Just a moment, Counsel. I've ruled. Rephrase your
question.
[Prosecutor]: Thank you, Your Honor.
[Defense counsel]: Your Honor, if you - if you have made a ruling,
I'd ask that the jury be instructed to disregard.
THE COURT: I sustained the objection. Ladies and gentlemen,
please follow my instruction that you are to disregard the last
question and last response ifthere was one. Thank you.
[Defense counsel]: And, Your Honor, I respectfully ask for a mistrial.
THE COURT: Denied.
A mistrial is an appropriate remedy only in extreme circumstances for a
narrow class of highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884;
Marchbanks v. State, 341 S.W.3d 559, 561-62 (Tex. App.—Fort Worth 2011, no
pet.) (explaining that a mistrial is appropriate only when "the error is so prejudicial
that expenditure of further time and expense would be wasteful and futile").
Because it is an extreme remedy, a mistrial should be granted only when less
drastic alternatives are insufficient to cure the harm and residual prejudice
remains. Ocon, 284 S.W.3d at 884-85. Generally, a trial court's prompt
17
instruction is considered sufficient to cure improprieties that occur during trial,
and we are to presume that a jury follows the trial court's prompt instructions.
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
Branigan argues that the prosecutor's questions and commentary that
Branigan's loading his gun was inconsistent with self-defense left the jury with an
Improper understanding of the law regarding self-defense and that the trial
court's instruction to disregard did not cure this misperception. Branigan
attempts to buttress his argument by pointing out the State's later questioning of
Branigan as to why he had changed his testimony regarding his reasoning for
loading the gun and the State's closing argument wherein the prosecutor points
to this inconsistent testimony.
First, Branigan did not object to the State's questioning him about his
changing testimony or to the State's closing argument; thus, to the extent that
Branigan is now appealing the State's questioning regarding his vacillating
testimony as to why he loaded the gun, he has failed to preserve this issue for
our review. See Habib v. State, 431 S.W.3d 737, 740^41 (Tex. App.—Amarillo
2014, pet. refd) (holding that appellant failed to preserve denial of closing
argument issue for appeal because "appellant did not voice an objection [during]
closing argument").
Further, even assuming that the prosecutor's question and statement that
loading a gun is inconsistent with the legal definition of self-defense, Branigan
has not persuaded this court that we should fail to abide by the presumption that
18
the jury followed the court's prompt instruction to disregard the State's question.
Gamboa, 296 S.W.3d at 580. Moreover, as the State points out, the trial court
correctly instructed the jury on self-defense in the jury charge, and the jury is
presumed to have followed the court's instructions. See Taylor v. State, No. 02-
02-000125-CR, 2003 WL 21197542, at *3 (Tex. App.—Fort Worth May 22, 2003,
no pet.) (mem. op., not designated for publication), citing Gardner v. State, 730
S.W.2d 675, 696-97 (Tex. Crim. App.), cert, denied, 484 U.S. 905 (1987)). We
overrule Branigan's second issue.
IV. Conclusion
Having overruled both of Branigan's issues on appeal, we affirm the trial
court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2015
19
Mark' Branigan
ClB-me!*l*«"Iffiit TBB70.0 4
9601 Spur 591
Amarillo, TX. 29.1 07-9696
I
Texas-Court of Criminal Appeals
ATTN: CLERK
Supreme Court Building
201 West 14th St.
Capital Station
Austin, TX 7B71V
TaTCn-'Sl B i4 CO x x
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