Meyers, J., delivered this concurring opinion.


I write to expand upon the majority's discussion of appellant's second point of error. In his second point of error appellant claims the evidence is legally insufficient to support his conviction because, he argues, he acted in defense of his property. See Tex. Penal Code § 9.41.

When a defense is raised by the evidence, the State bears the burden of persuasion in disproving it beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This doesn't mean the State is required to produce evidence contraverting the defensive evidence:

Arguably, § 2.03(d)[ (1)] appears to impose a burden on the State to directly refute a defense raised at trial, and dicta in [certain case law] certainly support[s] such a proposition, but the Practice Commentary to § 2.03(d) and other case law indicate otherwise. First, the Practice Commentary points out that the State has the burden of persuasion in disproving the evidence of [a defense]. That is not a burden of production, i.e., one which requires the State to affirmatively produce evidence refuting the [defensive] claim, but rather a burden requiring the State to prove its case beyond a reasonable doubt. Secondly, and more importantly, case law instructs us that [a defense] is an issue of fact to be determined by the jury. Defensive evidence which is merely consistent with physical evidence at the scene of the alleged offense will not render the State's evidence insufficient since the credibility determination of such evidence is solely within the jury's province and the jury is free to accept or reject the defensive evidence. A jury's verdict of guilty is an implicit finding rejecting the defendant's self-defense theory.

. . . In resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant's [defensive evidence], 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 murder beyond a reasonable doubt and also would have found against appellant on the [defensive] issue beyond a reasonable doubt.

Id. at 913-24 (citations omitted)(emphasis in original)(discussing self-defense).

The defensive evidence was presented in the form of appellant's testimony. Appellant testified that one of the victims, Antonio Cruz, took the keys to appellant's truck and refused to return them. Appellant also testified that when he entered the residence to retrieve the keys from Cruz, the five people he encountered there threatened him. Appellant argues the evidence is insufficient to establish his guilt because there were no eye witnesses and appellant's testimony was uncontraverted.

The State need not refute appellant's testimony. Saxton, supra. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the evidence sufficient to support appellant's conviction. It would not be irrational for a jury to disbelieve appellant's testimony and rely on the evidence supporting guilt. The evidence showed that appellant shot the five individuals inside the residence, within a few seconds. Cruz was shot in the head, and the bullet followed a downward trajectory, which suggests he was shot while in a sitting or kneeling position. Although appellant claimed he was attempting to retrieve his keys from Cruz, the evidence reflected that another victim was shot first. After leaving the residence with his rifle, appellant calmly awaited the arrival of the police. He was overheard stating, "I did it. . . . I did what I had to do." This evidence is sufficient for a rational jury to find each element of the offense beyond a reasonable doubt.

With these comments, I concur in point of error two and otherwise join the opinion.

Delivered September 20, 2000


1. Penal Code § 2.03(d) provides: "If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.