Austin Daniel Hoff v. the State of Texas

Affirmed and Memorandum Opinion filed July 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00145-CR

AUSTIN DANIEL HOFF, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1522694

MEMORANDUM OPINION

Appellant Austin Daniel Hoff shot and killed Complainant Steven Senter
outside the home of Appellant’s ex-girlfriend. A jury found Appellant guilty of
murder and assessed punishment at 23 years’ confinement. Appellant raises five
issues on appeal challenging (1) the jury instructions, (2) certain statements made
in the State’s closing argument, and (3) the sufficiency of the evidence supporting
the jury’s rejection of Appellant’s self-defense claim. For the reasons below, we
affirm the trial court’s judgment.
BACKGROUND

Appellant and Kristine started dating in October 2013, when Appellant was
19 years old and Kristine was 21. The couple dated for approximately three years
before moving to Austin together in May 2016. After Kristine discovered that
Appellant was texting another woman, she moved back to her mother’s Houston
home in July 2016.

Appellant sent Kristine a text message two weeks later, apologizing for the
incident and telling Kristine he wanted to get back together. Appellant and
Kristine continued to communicate and spent three weekends together in August,
discussing whether to continue pursuing their relationship.

Appellant returned to Austin from Houston on Sunday, August 28, feeling
like his relationship with Kristine was in a “good” place. According to Kristine,
Appellant then accessed her Facebook account and saw that she had been
messaging Complainant. Appellant drove from Austin to Houston after work the
following Wednesday and arrived at Kristine’s home at approximately 11:00 p.m.
Appellant told Kristine he “thought [they] were moving in the right direction and
then all of a sudden she started seeing [Complainant] and it was a surprise.”
Appellant acknowledged being “upset.” Appellant left shortly thereafter to return
to Austin.

Appellant drove to Houston again the following Sunday, arriving shortly
after midnight. Appellant “let [him]self in with a key” to Kristine’s mother’s home
and walked into the living room, where Kristine was talking with a friend. Kristine
recalled being “stunned” at the sight of Appellant and said neither she nor her
mother had given Appellant permission to come to the house. According to
Kristine, her friend left and she and Appellant “went to the couch to sit down to
talk.” Kristine said Appellant was “trying to kiss [her] and take [her] clothes off”
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even though she did not “indicate that [she] wanted any of that.” Kristine said she
“started crying [and] explaining that [she] was really, really tired of a lot of things
going on.” Appellant and Kristine agreed to talk more the next day.

Appellant returned to Kristine’s home at approximately 9:00 a.m. the
following morning. When Appellant arrived, he saw Complainant’s car parked in
the driveway. Appellant knocked on the door and spoke briefly to Kristine, who
expressed that they would “talk about this later” because she had “a lot going on
today.” Appellant said he continued to try to contact Kristine throughout the day
but she would not respond. According to Kristine, Appellant’s messages
repeatedly stated that he “wanted to talk” and that he “wanted [her] to come back
with him” to Austin. Kristine said her mother called her, too, and told Kristine she
saw Appellant parked across the street from their home. Kristine said she kept
“pushing” her interactions with Appellant, “hoping that maybe he would
eventually leave before [she] got home.”

Kristine and Complainant returned to her home later that evening; Appellant
was still parked outside her house. Kristine and Complainant exited their vehicle
and Appellant walked over to them. Kristine and Appellant talked for about fifteen
to thirty minutes. According to Kristine, Appellant was telling her that he “would
be a better fit for [her] than [Complainant].” Kristine said Complainant would
occasionally “cough” or “giggle” at something Appellant said but otherwise the
two men did not engage with each other.

Kristine said she felt like she was beginning to have a panic attack and told
Appellant she was going inside her house. Kristine walked inside the house
followed by Complainant. Complainant moved to close the front door but
Appellant was standing closely behind him, preventing the door from closing.

Testifying at trial, Kristine and Appellant provided different accounts of the
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sequence of events that followed. According to Kristine, she saw Complainant
push Appellant outside of the house, after which she “took a deep breath to kind of
stabilize [her]self and started yelling at them to quit.” Kristine estimated she was
in the home “[n]ot even five seconds” before she too exited the front door.

Kristine said Appellant was leaning back on a bougainvillea bush after he
had been pushed out of the house by Complainant. Kristine agreed that Appellant
“somehow ends up kind of on the ground in the bushes with [Complainant]
standing over him.” Kristine denied that Complainant was standing in an
“aggressive” position. Further describing Appellant’s and Complainant’s
interactions, Kristine said the men at most were “[kind] of grabbing” each other,
which she described as a “tussle.” Kristine said the men were not punching each
other. After the gunshot, Kristine said she saw Complainant “slumped” against
Appellant. Appellant told Kristine “he attacked me” before walking away to his
car.

According to Appellant, after the front door hit his foot Complainant
grabbed the door, flung it open, and “immediately c[ame] out of the doorway very
aggressively and shove[d] me a few feet backwards.” Appellant recalled
“stumbling backwards trying to catch [his] footing” while watching Complainant
“aggressively approaching” with “his fists up like he’s ready to throw a punch.”
Appellant said he tried to swing at Complainant but did not “land a punch at all.”
Appellant said Complainant hit him with “multiple” punches.

Appellant testified that he fell to the ground with his left hand pinned behind
his back. According to Appellant, Complainant got on top of him and “start[ed]
strangling me immediately.” Appellant said he started to lose his breath and could
not breathe or talk. Appellant said he was in fear for his life and tried to push
Complainant off but was unable to do so. Appellant said he used his left hand to

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reach his gun, which was located inside the waistband at the back of his pants.
Appellant fired a single shot into Complainant’s chest. When asked why he had a
gun on his person, Appellant explained that he had a concealed handgun license
and regularly carried a pistol in the back of his waistband.

After the shooting, Appellant said he was “in a panic” and “freaked out.”
Appellant walked to his car, where he changed his shirt and put the gun in the
backseat. Appellant drove away from the scene and was traveling westbound on
Highway 290 when he received a call from his father. According to Appellant, his
father told him the police were at the house and that Appellant “need[ed] to come
back home.” Appellant returned to his parents’ house, where he was arrested by
police. Appellant’s gun and the shirt he was wearing at the time of the shooting
were recovered from his car’s backseat.

The jury also heard testimony from Dr. Lopez, the medical examiner
assigned to the case. Admitted into evidence during her testimony were
photographs from Complainant’s gunshot wound, showing that Complainant was
shot in the middle of his upper chest. Pointing out the presence of soot on
Complainant’s chest, Dr. Lopez stated it was “the hallmark of a contact or close
contact entrance wound.” Continuing on, Dr. Lopez explained that “[i]t means that
the gun was placed up to [Complainant’s] chest, on his chest, when it was fired and
discharged.” Dr. Lopez said the bullet traveled “mostly front to back” and
“slightly left to right.” Dr. Lopez agreed that, “for that trajectory to occur, the gun
would have had to have been pointed in such a way as to cause the bullet to travel
mostly straight.”

Also admitted during Dr. Lopez’s testimony were photographs of Appellant
taken the night of the shooting. According to Dr. Lopez, the photographs appear to
show “bruises around the neck” that “would indicate some kind of pressure or

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force being applied.” Dr. Lopez also noted an “abrasion” on Appellant’s back left
shoulder.

The jury heard additional testimony from Sergeant Black, one of the officers
who responded to the shooting. Reviewing pictures of Appellant taken shortly
after the incident, Sergeant Black stated that there were “minor abrasions” on
Appellant’s face and neck “consistent with a minor physical altercation.” Stating
that he had “observed the evidence of many manual strangulations,” Sergeant
Black opined that Appellant’s injuries were not consistent with strangulation and
could “have been caused by a multitude of things.” Sergeant Black also noted that
Appellant’s knuckles were “red and slightly abraded,” which was “indicative of
throwing a closed fist strike at somebody or striking somebody with the back of
your hand.”

After the close of evidence, the trial court instructed the jury on the law
applicable to the case, including that governing Appellant’s self-defense claim.
The jury returned a verdict rejecting Appellant’s self-defense claim and finding
him guilty of murder. The jury assessed punishment at 23 years’ confinement.
Appellant timely appealed.

ANALYSIS

Appellant raises the following five issues on appeal:

1. the trial court erred by refusing Appellant’s requested jury instruction
on the legal definition of “provocation”;
2. the jury was improperly instructed on defense of a third person;
3. the jury charge failed to include the legal definitions of “criminal
trespass,” “harassment,” and “stalking”;
4. the State’s closing argument was improper and inflamed the jury; and
5. the evidence was legally insufficient to support the jury’s rejection of
Appellant’s self-defense claim.

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We consider these issues below, beginning with Appellant’s first three issues
challenging the jury instructions.

I. Jury Instruction Issues

A. Standard of Review

“[T]he jury is the exclusive judge of the facts,” but the trial court submits to
the jury a charge “distinctly setting forth the law applicable to the case.” Tex.
Code Crim. Proc. Ann. arts. 36.13, 36.14. The charge is intended to inform the
jury of the applicable law and how to apply that law to the facts of the case.
Alcoser v. State, 663 S.W.3d 160, 164-65 (Tex. Crim. App. 2022).

In analyzing a jury charge issue, we first determine whether error exists in
the charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); State v.
Lausch, 651 S.W.3d 546, 555 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d).
If error exists, we proceed to analyze the harm resulting from the error to
determine whether reversal is required. Price, 457 S.W.3d at 440; Lausch, 651
S.W.3d at 555.

To analyze harm, we apply “separate standards of review depending on
whether the defendant timely objected to the jury instructions.” Marshall v. State,
479 S.W.3d 840, 843 (Tex. Crim. App. 2016). If the defendant timely objected,
then reversal is required if we determine that the error caused the defendant “some
harm.” Id. If the defendant did not timely object, then reversal is required only if
the error was “so egregious and created such harm that the defendant did not have
a fair and impartial trial.” Id.

B. The Definition of “Provocation”

In his first issue, Appellant asserts the trial court erred by failing to include
in the jury instructions the following definition of “provocation”:

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On the issue of provocation, you are further instructed that the
evidence must show that the act (if any) or the words (if any) of
defendant were used for the purpose and with the intent that the
defendant would have a pretext for inflicting harm upon
[Complainant].
The trial court’s refusal of Appellant’s requested provocation definition does not
constitute error. The Court of Criminal Appeals previously has held that a charge
on provocation is proper when:

there is sufficient evidence (1) that the defendant did some act or used
some words which provoked the attack on him, (2) that such act or
words were reasonably calculated to provoke the attack, and (3) that
the act was done or the words were used for the purpose and with the
intent that the defendant would have a pretext for inflicting some
harm upon the other.
Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) (en banc); see also
Zavala v. State, 401 S.W.3d 171, 182-83 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d); Kennedy v. State, No. 13-13-00416-CR, 2015 WL 3637917, at *7-9
(Tex. App.—Corpus Christi-Edinburg June 11, 2015, pet. ref’d) (mem. op., not
designated for publication).

Appellant relies on Smith, Kennedy, and Zavala to support his argument on
this point, but these cases held that a definition of provocation is necessary only in
a specific context: when the jury also is instructed on “provoking the difficulty.”
See Smith, 965 S.W.2d at 512-13; Zavala, 401 S.W.3d at 182-83; Kennedy, 2015
WL 3637917, at *8-9 & n.8; see also Tex. Penal Code Ann. § 9.31(b)(4)
(delineating the elements for a “provoking the difficulty” finding in the context of
self-defense). A “provoking the difficulty” finding bars a defendant’s reliance on
self-defense as a justification for his actions when the defendant “provoked the
other’s use or attempted use of unlawful force.” Tex. Penal Code Ann.
§ 9.31(b)(4); see also Pham v. State, 595 S.W.3d 769, 779 (Tex. App.—Houston

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[14th Dist.] 2019), aff’d, 639 S.W.3d 708 (Tex. 2022) (“A defendant forfeits his
right of self-defense if he provoked the attack so as to have a pretext for killing the
complainant under the guise of self-defense.”).

But here, the charge did not instruct the jury with respect to “provoking the
difficulty.” Specifically, the charge did not instruct the jury that it could not find
Appellant acted in self-defense if it also found that Appellant provoked
Complainant’s use or attempted use of unlawful force. Although the charge did
use the term “provoke” in other contexts, it did not use the term in conjunction
with the specific instruction that requires the term’s technical definition. See Tex.
Penal Code Ann. § 9.31(b)(4); see also Smith, 965 S.W.2d at 512-13; Zavala, 401
S.W.3d at 182-83; Kennedy, 2015 WL 3637917, at *8-9 & n.8.

Therefore, the trial court did not err in refusing Appellant’s requested
instruction on the definition of “provocation.” We overrule Appellant’s first issue.

C. Defense of a Third Person Instruction

In his second issue, Appellant asserts the jury was improperly instructed on
defense of a third person as follows:

A person is justified in using force or deadly force against another to
protect a third person if:
(1) under the circumstances as the actor reasonably believes them to
be, the actor would be justified in using force or deadly force to
protect himself against the unlawful force or unlawful deadly force he
reasonably believes to be threatening the third person he seeks to
protect; and
(2) the actor reasonably believes that his intervention is immediately
necessary to protect the third person.
According to Appellant, this instruction was submitted to the jury based on
evidence relevant to Complainant’s point of view at the time of the incident, i.e.,

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that Complainant was acting to deflect a threat towards Kristine. Appellant argues
that, because the law of self-defense “focuses on the point of view of the accused
and not the point of view or actions of the decedent,” the trial court erred in
instructing the jury on the defense of third person.

Bound by precedent from the Court of Criminal Appeals, we conclude that
the trial court’s inclusion of the defense of third person instruction did not
constitute error. See Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) (en
banc).

At issue in Bennett1 was whether the appellant was acting in self-defense
when he fatally shot a third person who also wielded a gun in response to appellant
placing a gun in the face of a young man who was dating the appellant’s daughter.
Id. at 34-35. The deceased was a family friend of the young man and, during the
encounter, twice insisted that appellant take the gun out of the young man’s face.
Id. The appellant turned the gun toward the deceased and fired, killing him. Id.
The trial court proceeded to give, over the appellant’s objection, the following
instruction:

A person is justified in using deadly force against another to protect a
third person if: (1) under the circumstances as the actor reasonably
believes them to be, the actor would be justified under the preceding
sections of this charge dealing with the law of self-defense in using
deadly force to protect himself against unlawful deadly force which he
reasonably believes to be threatening the third person he seeks to
protect; and (2) the actor further reasonably believes that his
intervention is immediately necessary to protect the third person.

Holding that the instruction was proper, the Court of Criminal Appeals rejected the
intermediate court of appeals’ conclusion that the charge improperly raised the

1
The parties did not cite Bennett in their appellate briefing; instead, Bennett was found in
the Court’s independent research and the Court invited additional briefing after oral argument.

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lawfulness of actions undertaken by the complainant in a criminal action against
the appellant. See id. at 36. According to the court, “[w]here the evidence raises
some question whether the deceased’s conduct was justified, as it did in this cause,
the deceased becomes ‘a person whose criminal responsibility is in issue’ in the
case.” Id. The Court of Criminal Appeals reasoned that, to fully evaluate the
appellant’s self-defense claim, “the jury necessarily had to evaluate the
reasonableness of [the deceased’s] belief that appellant was using or attempting to
use deadly force against [the young man], and that the force [the deceased] used to
repel appellant’s attack against [the young man] was immediately necessary.” Id.
at 38. However, the jury ultimately was required to determine “whether appellant,
viewed strictly from his standpoint, reasonably believed that [the deceased] was
acting lawfully,” thus keeping the jury focused on the overarching inquiry central
to appellant’s self-defense claim.2 Id.

As in Bennett, the jury here was instructed on defense of third person based
on evidence relevant to Complainant’s point of view at the time of the shooting.
The jury also was instructed that its ultimate self-defense determination was to be
made “viewed from the standpoint of the defendant” at the time of the incident.
Therefore, guided by the Court of Criminal Appeals’ decision in Bennett, we
conclude the trial court did not err in instructing the jury on defense of a third
person. We overrule Appellant’s second issue.

2
We note that, since Bennett was decided in 1986, the Court of Criminal Appeals has
appeared to suggest that the issue of self-defense focuses only on the defendant. See Rogers v.
State, 664 S.W.3d 843, 853 (Tex. Crim. App. 2022), withdrawn on other grounds, 677 S.W.3d
705 (Tex. Crim. App. 2023) (per curiam). In Rogers, the Court of Criminal Appeals addressed
whether the trial court erred when it denied the defendant’s request for a jury instruction on self-
defense. 664 S.W.3d at 851-55. The State argued on appeal that refusing the instruction was not
error because the complainant initially used lawful force in self-defense against the defendant.
See id. at 853 (citing Tex. Penal Code Ann. §§ 9.31-.32). Rejecting this argument, the Court
emphasized that the Penal Code provisions addressing self-defense focus only on the “actor” and
“remain[] silent on the actions and reasonable beliefs of the ‘other.’” Id.

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D. Definitions of “Criminal Trespass,” “Harassment,” and
“Stalking”

In his third issue, Appellant asserts the trial court erred by failing to include
in the jury charge definitions of “criminal trespass,” “harassment,” and “stalking.”

Appellant did not request an instruction on these terms’ definitions; rather,
the terms first were mentioned during the State’s closing argument. See Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). Discussing the
presumption in favor of finding that deadly force was reasonably necessary, the
State argued:

It also talks about whether you can presume the defendant’s actions or
anyone’s actions to be reasonable in thinking that deadly force was
immediately necessary.[3] So, it says presumed to be reasonable that
deadly force was immediately necessary if the actor knew or had
reason to believe that the person against whom the deadly force was
used was trying to break into the house essentially or trying to commit
a felony like sexual assault, murder, did not provoke the other person
3
Specifically, this portion of the jury instructions states as follows:
The actor’s belief that deadly force is immediately necessary is presumed to be
reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force
was used:
(a) unlawfully and with force entered, or was attempting to enter
unlawfully and with force, the actor’s habitation, vehicle, or place of
business or employment;
(b) unlawfully and with force removed, or was attempting to remove
unlawfully and with force, the actor from the actor’s habitation, vehicle, or
place of business or employment; or
(c) was committing or attempting to commit aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery, or aggravated
robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic at the time
the force was used.

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and was not otherwise engaged in criminal activity. So, if you don’t
think — if you think one of those applies, then his deadly force is not
presumed to be reasonable. So, if you think that the defendant was
engaged in criminal activity, AKA trespassing or harassment or
stalking, then his force — his deadly force is not presumed to be
reasonable.

(emphasis added); see also Tex. Penal Code Ann. § 9.31(a) (discussing the factors
that must be present to presume a defendant’s use of force was reasonable,
including that the defendant “was not otherwise engaged in criminal activity”).

During this portion of the State’s closing argument, Appellant did not object
to the State’s use of the terms “trespassing,” “harassment,” or “stalking.” On
appeal, Appellant contends that the trial court had a sua sponte duty to instruct the
jury on these terms’ particular technical legal meanings.

Appellant does not cite any cases to support the application of a sua sponte
duty to supply an instruction in these circumstances. “Criminal activity” as it is
used in Chapter 9 of the Texas Penal Code is undefined, and courts have given
effect to its plain meaning as the best indicator of legislative intent. See, e.g.,
Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. ref’d);
Johnson v. State, No. 01-15-00101-CR, 2016 WL 4536954, at *13 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2016, pet. ref’d) (mem. op., not designated for
publication). “Thus, criminal activity can be broadly construed to comport with
the generally understood concept that it would encompass any activity that
constitutes a crime.” Barrios, 389 S.W.3d at 393; see also Johnson, 2016 WL
4536954, at *13.

In light of the broad definition of “criminal activity,” we conclude the trial
court did not err in failing to sua sponte instruct the jury as to the specific
definitions of “criminal trespass,” “harassment,” or “stalking” when those terms

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were mentioned in the State’s closing argument. See Barrios, 389 S.W.3d at 393;
see also Johnson, 2016 WL 4536954, at *13. We overrule Appellant’s third issue.

II. The State’s Closing Argument

In his fourth issue, Appellant asserts the State’s closing argument “was
improper and inflamed the jury” and points to the following statements:

And today [Appellant] feels entitled for you to let him walk free like
he’s been walking free for the last six and a half years. You know,
[Complainant’s] family can’t pay $5,000 to bail him out of the grave.

Appellant’s counsel objected to these statements during closing argument and
stated: “Judge, this is improper argument. No testimony on that.” The trial court
overruled Appellant’s objection.

We review a trial court’s ruling on a jury argument objection for an abuse of
discretion. Gonzalez v. State, 541 S.W.3d 306, 315 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). Proper jury argument generally is limited to four areas:
(1) summation of the evidence presented at trial; (2) reasonable deductions and
inferences from the evidence; (3) responses to opposing counsel’s argument; and
(4) appropriate pleas for law enforcement. Milton v. State, 572 S.W.3d 234, 239
(Tex. Crim. App. 2019). Counsel’s remarks during closing argument must be
considered in the context in which they were made. Denison v. State, 651 S.W.2d
754, 761 (Tex. Crim. App. 1983) (en banc).

Courts have held that references similar to “walking free” may be construed
as proper pleas for law enforcement. See, e.g., Harrell v. State, No. 01-95-00752-
CR, 1997 WL 230145, at *7 (Tex. App.—Houston [1st Dist.] May 8, 1997, pet.
ref’d) (not designated for publication) (the prosecutor stated in his closing
argument that appellant should not be able to “walk scott free”); Sears v. State, No.
A14-91-00301-CR, 1992 WL 105802, at *6 (Tex. App.—Houston [14th Dist.]

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May 21, 1992, pet. ref’d) (not designated for publication) (the prosecutor stated,
“[i]f you’re going to let [the defendant] ride out of here, get prepared to deal with
him again in the future”); Faggett v. State, No. B14-86-179-CR, 1987 WL 15050,
at *2 (Tex. App.—Houston [14th Dist.] July 30, 1987, no pet.) (not designated for
publication) (the prosecutor stated, “[i]f the defendant gets off with an assault or
not guilty, there is going to be a free reign on [prison] guards because this
defendant is going to think he’s got away from something”).

Similarly, courts also have held that statements regarding a family’s inability
to spend time with a deceased complainant are not outside the bounds of a
permissible closing argument. See, e.g., Carter v. State, 614 S.W.2d 821, 822-23
(Tex. Crim. App. 1981) (prosecutor’s argument that murder victim’s mother did
not get to spend Christmas with victim permissible); Thompson v. State, No. 01-
95-01465-CR, 1997 WL 109960, at *1 (Tex. App.—Houston [1st Dist.] Mar. 13,
1997, no pet.) (not designated for publication) (the prosecutor stated, “[t]his is a
horrible, horrible tragedy that [complainant’s] family is facing, has faced since
Mother’s Day”).

Moreover, testimony discussing Appellant’s bail came into evidence at trial
with no objection from Appellant. See Milton, 572 S.W.3d at 239 (proper jury
argument generally includes evidence presented at trial). In Kristine’s recorded
interview with Sergeant Black taken shortly after the incident, Sergeant Black told
Kristine that the typical Harris County murder bond at the time was $50,000,
which defendants could obtain by paying $5,000.

For these reasons, we conclude the trial court did not abuse its discretion in
overruling Appellant’s objection to the challenged statements in the State’s closing
argument. We overrule Appellant’s fourth issue.

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III. Sufficiency of the Evidence

In his fifth issue, Appellant asserts the evidence is legally insufficient to
rebut the presumption that his use of deadly force was reasonable given
Complainant’s initial application of lethal force against Appellant. According to
Appellant, “[u]ncontroverted evidence indicated that [Complainant] was strangling
[Appellant] when [Complainant] was shot.”

When reviewing the legal sufficiency of the evidence supporting a
conviction, “we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We presume that
the jury resolved conflicting inferences in favor of the verdict and defer to its
determination of evidentiary weight and witness credibility. See Braughton v.
State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We consider both direct
and circumstantial evidence, as well as any reasonable inferences that may be
drawn from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim.
App. 2016).

Appellant’s argument overstates the strength of the evidence in his favor.
Contrary to Appellant’s assertion, the record does not contain “uncontroverted”
evidence indicating that Complainant was strangling Appellant when Complainant
was shot.

Although Appellant’s testimony supports this interpretation, Kristine
testified to a markedly different version of events. According to Kristine, she saw
Complainant push Appellant outside of her home and followed the men outside
after pausing briefly to catch her breath. Kristine recalled that Appellant was
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leaning back on a bougainvillea bush before he “end[ed] up kind of on the ground”
with Complainant “standing over him.” Kristine denied that Complainant was
standing in an “aggressive” position. Further describing Appellant’s and
Complainant’s interactions, Kristine said the men at most were “[kind] of
grabbing” each other, which she described as a “tussle.” Kristine said the men
were not punching each other in the moments before Appellant shot Complainant.

The jury also heard testimony from Sergeant Black, who opined that
Appellant’s injuries were not indicative of strangulation but rather were “minor
abrasions” that were “consistent with a minor physical altercation.”

Considering this evidence in the light most favorable to the verdict, the jury
reasonably could have concluded that Complainant did not apply lethal force
against Appellant prior to the shooting. See Hooper, 214 S.W.3d at 13. Therefore,
we overrule Appellant’s fifth issue.

CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

/s/ Meagan Hassan
Justice

Panel consists of Justices Wise, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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