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Kirk v. State

Court of Appeals of Texas, Second District, Fort Worth

January 23, 2014

DOUGLAS LYNN KIRK, APPELLANT
v.
THE STATE OF TEXAS, STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY. HON. EVERETT YOUNG.

FOR APPELLANT: GARY A. UDASHEN, SORRELS, UDASHEN & ANTON, DALLAS, TEXAS.

FOR STATE: JOE SHANNON, JR., CRIMINAL DISTRICT ATTORNEY; CHARLES M. MALLIN, CHIEF APPELLATE SECTION; EDWARD L. WILKINSON, LISA CALLAGHAN, AND ROBERT HUSEMAN, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ. DAUPHINOT, J., filed a dissenting opinion.

OPINION

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I. Introduction

In three issues, Appellant Douglas Lynn Kirk appeals his murder conviction. We affirm.

II. Factual and Procedural Background

On the evening of April 24, 2010, Orlando Benavides helped Kirk move from 1700 Clover Lane to 2820 Raton Drive, loaning both his truck and physical labor. Around 10:00 p.m., Kirk and Benavides made their last trip of the night to the Clover Lane house. When Kirk and Benavides arrived at the Raton Drive house, Alphonso Beza, who lived next door, approached them, introduced himself, and volunteered to help unload the truck. Kirk accepted Beza's offer, and Beza invited Pedro Diaz and another man to help unload the truck.

Around 1:00 a.m., Kirk announced that it was time for everyone to leave, said good night to Beza and Diaz, and walked Benavides to his truck. whet occurred after Benavides left is disputed. Kirk claimed that he thought Beza and Diaz were trying to steal from him and that they threatened him. After firing four warning shots into the ceiling of his house, he kneeled in the corner of a bedroom and fired down the hallway, killing both men.

Kirk was charged with murdering Beza and Diaz by shooting them with a firearm.[1] The State presented evidence to counter Kirk's self-defense and defense-of-property theories, and after deadlocking on counts one and two, the jury found Kirk guilty of count three--causing Diaz's death by shooting him with a firearm--and assessed his punishment at forty-seven years' confinement and a $1,000 fine. This appeal followed.

III. Sufficiency

In his first issue, Kirk argues that the evidence is insufficient to sustain the verdict because the State failed to disprove that he acted in self-defense and in defense of property.

A. 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, 61 L.Ed.2d 560 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). 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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

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); Wise, 364 S.W.3d at 903.

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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). 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; Wise, 364 S.W.3d at 903.

We must consider all the evidence admitted at trial, even improperly admitted evidence, when performing a sufficiency review. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).

After the defendant has introduced some evidence supporting a defense under section 2.03 of the penal code, the State bears the burden of persuasion to disprove it. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that a conviction produces an implicit finding against the defensive theory). The burden of persuasion does not require the production of evidence; rather, it requires the State to prove its case beyond a reasonable doubt. Id. To determine sufficiency of the evidence to disprove a self-defense claim, we ask 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 defensive issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Smith v. State, 355 S.W.3d 138, 144-47 (Tex. App.--Houston [1st Dist.] 2011, pet. ref'd) (applying Saxton and Zuliani to the jury's rejection of the defendant's self-defense and defense-of-third-person theories).

Penal code sections 9.31 and 9.32 provide in relevant part that a person is justified in using deadly force against another " when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other's use or attempted use of unlawful deadly force." Tex. Penal Code Ann. § § 9.31(a), 9.32(a)(1)-(2)(A) (West 2011). Additionally, penal code section 9.42 provides that a person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41[2]; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or

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(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Id. § 9.42.

B. Evidence

Kirk contends that he " had a legitimate fear for his life" and that he " reasonably believed that Beza and Diaz were going to hurt him and rob him of his property." In support of his contention, Kirk points to his own testimony and the version of events he gave to the jury describing what happened that night.

1. The State's Evidence

Isabel Diaz testified that Beza, her fiancé e, and Diaz, her brother, had been drinking beer and playing with her kids and nephew in front of her house on the evening of April 24, 2010. She testified that Beza and Diaz went next door to Kirk's house around 11:00 p.m. to help Kirk move in and that Beza had appeared happy and indicated that there was free beer. When Isabel awoke the following morning to find that Beza and Diaz had not returned home, she became concerned, walked outside, and saw Kirk and another man walking towards Kirk's house. She asked Kirk ...


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