Keithion Dywane Derrick v. the State of Texas

Affirm and Opinion Filed August 24, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00477-CR
KEITHION DYWANE DERRICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1525060-P
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Molberg
Appellant Keithion Derrick was convicted of aggravated assault causing
serious bodily injury with a deadly weapon, involving family violence, and
sentenced to five years’ confinement. He now argues on appeal that the jury’s
verdict was not supported by legally sufficient evidence; specifically, he contends
that a rational jury could not have rejected his claim of self-defense. We disagree
and affirm the trial court’s judgment in this memorandum opinion. See TEX. R. APP.
P. 47.4.
BACKGROUND
Appellant lived at his grandparents’ house in Garland along with his sister,
Kimberlee Nelson, and numerous other members of their family. As Nelson put it
at trial, “We got along like family. Sometimes it was good, sometimes it was bad.”
It was bad on the night of December 10, 2015. Nelson got off work at Popeyes
at 11:00 p.m., and she went home and was talking to her nephew in the living room
when appellant arrived at the house. Nelson testified that she and appellant then
renewed their longstanding argument about what school appellant’s daughter should
attend. The argument became personal and heated. Appellant shoved his finger in
Nelson’s face before leaving the living room and going to his bedroom down the
hall. On cross-examination, defense counsel asked Nelson if she told appellant, “I
stabbed you before, I’ll stab you again.” Nelson stated that she did not recall saying
that, but that she “might have said it.” Nelson went to the bathroom, which was in
the same hall as appellant’s room.
Nelson testified that, as she left the bathroom and was walking back towards
the living room, appellant shot her in her left arm, near her elbow. She did not feel
anything at first—she “just heard it”—but then she realized she could not move her
arm. She fell against the wall on the right side of the hall and appellant shot her
again in the left leg. Nelson made it living room before she fell on the floor near the
couch.
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Appellant testified in his defense and told a different story. He said that he
was already home when Nelson got home after work, and that an argument started
immediately. Nelson “charged at [appellant] and choked him” and scratched him
before appellant’s son broke them up. Appellant went to his room. Nelson followed
him and “was trying to stab [him] through the door.” Appellant testified that he was
nervous considering that Nelson had stabbed him once before, in 1999.1 So he got
his handgun. After things quieted down, appellant decided to try to leave the house.
He said “that’s when she was running back down the hallway,” saying, “Bitch, I
stabbed you once, I’ll stab your ass again.” Appellant testified that Nelson “had her
arm up,” running towards him, and there was nowhere for him to go. Appellant
stated that there was no doubt in his mind that Nelson had a knife in her hand, so he
“shot her to stop her.” Her shot her a second time because “she was still coming.”
On cross-examination, appellant clarified that, when he was in his room, his
door was closed and dead-bolted. He said that Nelson then busted the door open and
that is when he saw that she had a knife. The State cross-examined him, questioning
why he did not tell the police about these details. Appellant testified that he could
not remember whether he told the police that Nelson busted through his door.
Appellant also testified that he did not remember whether Nelson still had the knife
in hand when he shot her the second time.
1
During her testimony, Nelson said that she pleaded guilty in 1999 in an aggravated assault case in
which she had attacked appellant with a can. She was placed on probation, which she completed.
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Nelson was taken to Texas Health Presbyterian Hospital in Dallas, where she
remained for five days. Her elbow was shattered. Consequently, she could not use
her left arm for anything, and, at the time of trial, she could pick up no more than
two pounds with her left hand.
Detective Wendy Sheriff spoke with Nelson and examined her wounds.
Sheriff testified that, based on the positions of Nelson’s wounds, she determined that
Nelson must have been facing away from appellant when she was shot. On cross-
examination, she testified that if someone were holding a knife in their left hand and
had it raised, that could also be consistent with Nelson’s elbow wound. Someone at
the scene—she did not remember who—told Sheriff that Nelson told appellant, “I’ve
stabbed you once before, and I’ll stab you again.”
Sheriff also interviewed appellant. She testified that he told her that he carried
a knife, and that he had emptied his pockets prior to the police arriving. She
recovered a pocket knife at the crime scene—it was “in the same proximity” as
appellant’s gun, which he had left in the hallway. A photo of the hallway was
admitted at trial that showed the knife on the floor; it was folded up. Sheriff said
that she did not find any other knives at the crime scene.
DISCUSSION
Standard of review
The State must prove each essential element of an offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When reviewing the
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sufficiency of the evidence, we view the evidence in the light most favorable to the
verdict and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. This standard “gives
full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Id. at 319. When the record supports conflicting reasonable
inferences, we presume that the jury resolved the conflicts in favor of the verdict.
Id. at 326.
The jury is the sole judge of the witnesses’ credibility and the weight to be
given to their testimony. Curry v. State, 622 S.W.3d 302, 310 (Tex. Crim. App.
2019). The trier of fact may choose to disbelieve all or any part of a witness’s
testimony. Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). “A court’s
role on appeal is restricted to guarding against the rare occurrence when the
factfinder does not act rationally.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim.
App. 2018).
Applicable law
A person commits aggravated assault if he commits assault—that is,
“intentionally, knowingly, or recklessly causes bodily injury to another”—and
causes serious bodily injury to another or uses or exhibits a deadly weapon during
the commission of the assault. See TEX. PENAL CODE ANN. § 22.02(a). Aggravated
assault is a felony in the first degree if, as here, “the actor uses a deadly weapon
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during the commission of the assault and causes serious bodily injury to a person
whose relationship to . . . the defendant is described” by section 71.003 of the family
code. See TEX. PENAL CODE ANN. § 22.02(b)(1). But a person “is justified in using
force against another when and to the degree the actor reasonably believes the force
is immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a). Deadly force in self-defense is justified when a
person reasonably believes the force is immediately necessary to protect the actor
against the other’s use or attempted use of unlawful deadly force. Id. §
9.32(a)(2)(A). Deadly force is “force that is intended or known by the actor to cause,
or in the manner of its use or intended use is capable of causing, death or serious
bodily injury.” Id. § 9.01(3). A reasonable belief is one that would be held by an
ordinary and prudent person in the same circumstances as the actor. Id. § 1.07(42).
A defendant bears the burden to produce some evidence that supports his
claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
“Once the defendant produces such evidence, the State then bears the burden of
persuasion to disprove” self-defense beyond a reasonable doubt. Id. “The burden
of persuasion is not one that requires the production of evidence, rather it requires
only that the State prove its case beyond a reasonable doubt.” Id.; see also Saxton
v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (en banc). “The jury is the
sole judge of the credibility of defensive evidence, and it is free to accept it or reject
it.” Rankin v. State, 617 S.W.3d 169, 183 (Tex. App.—Houston [1st Dist.] 2020,
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pet. ref’d) (citing Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018));
see also London v. State, 325 S.W.3d 197, 202 (Tex. App.—Dallas 2008, pet. ref’d)
(“Self-defense is an issue of fact to be determined by the jury.”).
In sum,
[i]n resolving the sufficiency of the evidence issue, we look not to
whether the State presented evidence which refuted appellant’s self-
defense testimony, but rather we determine whether after viewing all
the evidence in the light most favorable to the prosecution, any rational
trier of fact would have found the essential elements of [the offense]
beyond a reasonable doubt and also would have found against appellant
on the self-defense issue beyond a reasonable doubt.
Saxton, 804 S.W.2d at 914.
Analysis
Viewing the evidence in a light most favorable to the verdict, the jury could
have rationally believed Nelson’s testimony against appellant’s and found beyond a
reasonable doubt that appellant’s use of deadly force was not immediately necessary
to protect himself against any use or attempted use of unlawful deadly force. Nelson
testified that she was walking down the hallway away from appellant—not attacking
appellant, not approaching appellant, and not wielding any weapon—when appellant
shot her twice. Nelson’s version of what happened was consistent with the location
of her gunshot wounds, as Detective Sheriff testified. Furthermore, just one knife
was found at the scene, and the jury could have reasonably inferred that it was the
knife appellant emptied from his pockets given that it was an unfolded pocket knife
that was found where appellant also left his handgun. Even if Nelson verbally
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threatened to stab appellant, as she conceded she might have, the use of force against
another is not justified “in response to verbal provocation alone.” See TEX. PENAL
CODE ANN. § 9.31(b). Force is only justified when it is “immediately necessary to
protect the actor against the other’s use or attempted use of unlawful force.” Id. §
9.31(a).
In short, the jury was free “to resolve any conflicts in the evidence and could
have determined” that Nelson was more credible than appellant, and a “rational jury
could have concluded appellant never believed deadly force was immediately
necessary to protect himself against any unlawful deadly force but that he was
angered” following his argument with Nelson. See Gaona v. State, 498 S.W.3d 706,
710 (Tex. App.—Dallas 2016, pet. ref’d). Thus, viewing the evidence in the light
most favorable to the verdict, we conclude a rational jury could have found against
appellant on his self-defense issue beyond a reasonable doubt. See Saxton, 804
S.W.2d at 914. Appellant’s sole issue is overruled.
CONCLUSION
We affirm the trial court’s judgment.
/Ken Molberg/
KEN MOLBERG
190477f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEITHION DYWANE DERRICK, On Appeal from the 203rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1525060-P.
No. 05-19-00477-CR V. Opinion delivered by Justice
Molberg. Justices Goldstein and
THE STATE OF TEXAS, Appellee Smith participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 24th day of August, 2021.
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