No. 05-06-00409-CRCourt of Appeals of Texas, Fifth District, Dallas.
Opinion Filed October 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA05-61546-N.


Before Justices MOSELEY, FRANCIS, and MAZZANT.

Opinion By Justice MOSELEY.

After a jury convicted Desmond Steve Zvinavashe of assault-family violence, the trial court assessed punishment at 180 days’ confinement in the county jail, probated for twenty-four months, and a $400 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court’s judgment.

Amy Nickelberry and appellant live together and are expecting their first child. At trial, Nickelberry testified she filed an affidavit of non-prosecution because appellant did not hit her with his hand and she did not want charges against appellant pursued. Nickelberry testified she and appellant had been arguing about finances for about a month before the incident. On September 5, 2005, they got into an argument and she hit appellant. Appellant was lying on the couch as she stood over him fussing. When appellant would not listen to her, she “tapped him on his arm.” Appellant hit her and she hit him. They started fighting and ended up in the bedroom. Nickelberry “blacked out” during the fight and could not remember exactly what happened during that time. Photographs of Nickelberry taken by the police that day were shown to the jury. The photographs show Nickelberry with one swollen eye, one black eye, scratches on her chest area, and bruises on the side and back of her head. Nickelberry acknowledged that her injuries were sustained during her fight with appellant.

Nickelberry testified she did not recall telling an officer that appellant hit her with his hand or that he forced her against the wall. Nickelberry acknowledged that her written statement to the police on the day of the incident differed from her testimony. The written statement said the fight started when she “tapped” appellant on his shoulder and “he got up and hit me in the face.” Nickelberry went into the kitchen and appellant followed her to the bedroom. When Nickelberry was on the bed, appellant hit her in the eye and “head-butted me three or four times.” Nickelberry ended up on the floor. While appellant was on top of her, he “slammed my head” on the wall “about three or four times.” Nickelberry testified she gave a written statement to the police only because she was upset, tired, and ready for them to leave so she could “get some rest.” Nickelberry testified appellant hit her only after she hit him first.

Dallas police officer Jason Sibley was dispatched to Nickelberry’s apartment at 1:48 p.m. on a disturbance call. Sibley testified that when he arrived, Nickelberry was angry, upset, and “very distraught.” Sibley observed that Nickelberry’s right eye was swollen shut, and there were bruises on her left eye and scratches across her chest area. The injuries to Nickelberry’s body appeared to be fresh and were consistent with what Nickelberry said had occurred. Nickelberry told Sibley she had a verbal argument with her live-in boyfriend. She gave Sibley appellant’s name and photograph. Nickelberry told Sibley she “tapped” appellant on the shoulder to get his attention. Appellant stood up without any further warning and hit Nickelberry in the face with a closed fist. She was in a state of shock, so she walked into the kitchen to get her composure. She was not sure how she got to the bedroom, where appellant held Nickelberry down on the bed and head-butted her three or four times, then banged her head against the wall another three or four times. Sibley testified Nickelberry said appellant assaulted her, but she never said she and appellant were engaged in a physical fight. Sibley further testified appellant was not at the apartment when he arrived and never showed up the entire time officers were talking to Nickelberry and taking photographs.

Dallas police officer Paul Deborst testified that on September 5, 2005, he was dispatched to Nickelberry’s apartment at about 6:30 p.m. on a “disturbance call with possible violence.” Deborst testified he observed a “heated argument” in the parking lot between Nickelberry and appellant. After he separated them, Deborst saw injuries to Nickelberry’s face. Nickelberry identified appellant as the person who caused her injuries. Deborst learned other officers had been to Nickelberry’s apartment earlier on a domestic violence call and that appellant had fled the scene before officers had arrived. Deborst testified he briefly talked with appellant before arresting him. Appellant confirmed that there had been a physical confrontation earlier that day between himself and Nickelberry. Deborst did not see any injuries on appellant, nor did appellant say he had received any injuries earlier that day. Deborst did not recall appellant saying Nickelberry attacked him earlier that day or that a knife was used.

Officer Gerald Melgoza, who arrived at the scene after Deborst, testified Nickelberry was upset and scared, and her face was swollen and looked as if she had been beaten. Deborst told Melgoza that an assault offense had occurred earlier that day and appellant was the person accused of that offense. Melgoza testified he did not check appellant for any injuries because he did not see any injuries on appellant. Melgoza further testified appellant never said he had been assaulted or attacked, and appellant denied that anything actually had occurred.

Appellant testified he hit Nickelberry in self-defense after she attacked him with a knife. According to appellant, Nickelberry usually started arguments about finances because appellant was not working at the time and she was paying all the bills. On September 5, 2005, Nickelberry asked appellant where her car keys were, then slapped appellant in the face when he told her to find her own keys. Appellant stood up, held Nickelberry’s arms, and asked why she hit him. When he let her go after a few seconds, Nickelberry went to the bedroom, got all of appellant’s clothes from the closet, threw them into the bathtub, and poured bleach and toilet cleaner on them. Appellant walked out of the apartment, but Nickelberry splashed some of the cleaner toward him. Appellant washed his hands in the pool area, then moved his car from in front of their apartment to another space.

Appellant testified he went back inside the apartment to gather his belongings and leave. While he packed, Nickelberry came into the bedroom with a butcher’s knife in her hand. She “walked across the bed” while swinging the knife and told appellant she would not let him walk out the door. Nickelberry grazed appellant’s shoulder with the knife. Appellant pleaded with Nickelberry to stop. Appellant wrestled the knife from her, then threw the knife under the bed. Nickelberry slapped appellant, spit in his face, and kicked him. Appellant testified he “slapped” Nickelberry three or four times across the face after she had slapped him. Appellant pinned Nickelberry to the floor to keep her from going to the kitchen to get another knife. When he pinned her down, Nickelberry’s head hit the floor and wall. Appellant got up and left the apartment. Appellant testified he knew he was going to be arrested, so he went to his best friend’s house to tell him what had happened. Appellant went back to Nickelberry’s apartment later in the day to talk with her. Nickelberry told appellant to leave and that the police had been called. Appellant testified he waited there for the police to arrive and arrest him. Appellant testified he caused Nickelberry’s black eye, but denied he caused bruises on the back of her head. Appellant further testified the knife wound inflicted on him by Nickelberry did not require medical attention because it only bled a short time. Appellant tried to tell the police about the wound, but they would not listen to him.

Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 2006 WL 2956272 at *7 (Tex.Crim.App. Oct. 18, 2006); Johnson v. State, 23 S.W.3d 1, 7
(Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.).

The State is not required to affirmatively produce evidence to refute a defendant’s self-defense claim; it must prove its case beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Self-defense is an issue of fact to be determined by the fact finder. See id. at 913. A guilty verdict is an implicit finding rejecting a defendant’s self-defense theory. See id. at 914. When a defendant challenges the factual sufficiency of the evidence to support the rejection of a defense, we review all of the evidence in a neutral light to determine whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); see also Watson, 2006 WL 2956272 at *7-*8.

To obtain a conviction for assault-family violence, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Amy Nickelberry, a member of appellant’s household. See Tex. Pen. Code Ann. § 22.01(a) (Vernon Supp. 2006). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. See id., § 9.31(a) (Vernon 2003).

Appellant argues the evidence is legally and factually insufficient to support the conviction and the jury’s rejection of his self-defense claim because he was not the aggressor. Appellant asserts the evidence shows Nickelberry assaulted him with a knife and he hit her in self-defense. The State responds that the evidence is legally and factually sufficient to support the conviction and the jury’s implied rejection of appellant’s self-defense claim.

Although Nickelberry testified at trial that she hit appellant first and they fought one another, she admitted her injuries were caused by appellant. Nickelberry’s written statement to the police on the day of the assault stated she tapped appellant on the shoulder and he responded by hitting her in the face, head-butting her three or four times, and hitting her head against the wall several times. Sibley testified Nickelberry’s injuries were consistent with what she wrote in her statement, and Melgoza testified Nickelberry’s face appeared swollen and beaten. Appellant testified he only slapped Nickelberry across the face several times in self-defense after she attacked him with a knife. Appellant essentially asks us to believe his version of events. However, it was the jury’s function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was free to accept or reject any or all of the defensive evidence See Saxton, 804 S.W.2d at 913.

Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the finding of guilt and the rejection of appellant’s self-defense claim. See Watson, 2006 WL 2956272 at *7; Zuliani, 97 S.W.3d at 594 Saxton, 804 S.W.2d at 914. We resolve appellant’s issues against him.

We affirm the trial court’s judgment.