Michael Anthony Kelly v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-364-CR
MICHAEL ANTHONY KELLY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Michael Anthony Kelly appeals his conviction for
murder. W e affirm.
II. Procedural Background
1
 See Tex. R. App. P. 47.4.
W e discuss the evidence in greater detail below, but, in short, bad blood
between a drug dealer and a dancer culminated in a rapper’s death after a shooting
outside an after-hours club in Arlington, Texas. Kelly was charged with the death of
the rapper, Sheena Perkins. The jury disregarded his self defense and defense of
a third person claims and found him guilty of murder. In a special punishment issue,
the jury found sudden passion arising from adequate cause and assessed fifteen
years’ confinement as punishment. See Tex. Penal Code Ann. § 19.02(a), (d)
(Vernon 2009). This appeal followed.
III. Self Defense
In his first point, Kelly claims that he is entitled to a new trial because the great
weight and preponderance of the evidence shows that he acted in self defense so
that it is manifestly unjust that he was convicted of Sheena’s murder.
A. Evidence
To fully explain the events that led the State to charge Kelly with causing
Sheena’s death, the jury had to understand the history between the drug dealer,
Jonathan “J.J.” Coffey, and the dancer, Chasity “Chat” Clark.
1. Events in November and December 2006 Leading to Shooting
J.J., a high school dropout in his mid-thirties and father of six, was
incarcerated at the time of the trial because he had pleaded guilty to a federal felon-
2
in-possession-of-a-firearm charge. 2 He and Oneil “O.C.” Coombs Mahoney became
partners in drug dealing in 2006; neither was otherwise employed. J.J. was married
to Cyntrell Mitchell and had relationships with O.C.’s sister Telethia and with
Sheena.3
O.C. had been arrested multiple times, and J.J. had spent around $25,000 to
bail him out three of those times. J.J. did not bail O.C. out a fourth time. Chat, a
dancer at Club Hard Bodies and Harlem Nights, had been O.C.’s girlfriend for three
years.4 It is undisputed that J.J.’s failure to bail out O.C. angered Chat and led to a
physical altercation in November 2006 between her and J.J.’s “sister,” Samantha
Coffey.5
J.J. described the altercation as a loud, heated argument that started when
he arrived at the apartment he used for drug sales. Chat and Portia (another woman
2
 J.J. testified that he had a bargain with the State that nothing new he
admitted during his testimony would result in prosecution and that he hoped his
testimony would result in a reduction of his federal jail time. J.J. had prior
convictions for delivery of a controlled substance (cocaine) and possession of a
controlled substance (cocaine) and pending drug charges.
3
 Sheena had her own criminal history, having pleaded guilty to the offense
of making a terroristic threat, a class B misdemeanor, for threatening to commit
murder or aggravated assault.
4
 Chat also had a criminal history, serving ten months in state jail for
violating her community supervision on a drug possession offense.
5
 Samantha and J.J. are actually cousins. In exchange for her testimony,
Samantha’s pending misdemeanor evading arrest charge was reduced to a
disorderly conduct charge.
3
J.J. dated) were there when he arrived. Chat confronted J.J. about O.C., and then
Samantha and Chat began fighting over Chat’s “going off on [J.J.] like that.” The
fight ended when Samantha threw Chat out of a window.
J.J. said that Chat and Portia left the apartment but returned twenty minutes
later with Rico, someone he knew through O.C. J.J. stated that Chat made threats
to him like “I’ll have you killed.” The argument continued until Samantha threatened
to call the police.
J.J. testified that he returned to the apartment a few days after the fight. He
answered a knock at the door, and three or four people entered, shot him in the
head, and robbed him of around $17,000. J.J. figured that Chat was responsible for
the robbery because only she and O.C. knew where he had hidden the money, and
O.C. was still in jail. Chat testified that she started receiving threats from J.J. like
“Bitch, I’m going to kill you,” “You dead when I see you,” and “I want my money,” and
that J.J. initially made twenty to thirty threats a day, then five to seven per day, and
finally stopped when O.C. was released from jail a week after the robbery. Chat
stated that she took these threats seriously and said that she had seen J.J. with
guns on several occasions.
J.J. tried to track Chat down, going with his friend Donna Dears to the clubs
where Chat worked and telling people that Chat had stolen from him. J.J. recalled
making threats to Chat throughout December 2006, including that he was going to
have her beaten up and have other women assault her, but he said that this was
4
after she threatened him first. 6 J.J. denied telling Chat that he was going to kill her,
and he stated that he only started carrying a gun after he had been shot during the
apartment robbery.
Kelly, who was thirty-four years old at the time of trial, testified that he was a
high school graduate, had taken two years of college courses, and had worked for
United Parcel Service for fourteen years before suffering an injury. At trial, he was
married but separated and had three children with his wife in addition to a baby with
Chat. He met Chat at Club Hard Bodies.
Kelly testified that Chat told him about the fight at J.J.’s apartment and J.J.’s
threats. Chat stated that Kelly told her, “[W ]ell, just stay away from over there,” and
that she could hang out with him “to avoid all that.” Chat and O.C. split up not long
after O.C. got out of jail, and she and Kelly started dating. Kelly stated that, other
than Chat, he did not know anyone involved prior to the shooting and that he did not
try to meet or confront J.J. in any way after Chat told him about the November fight
and the threats.
6
 Donna testified that she had heard some of the threats exchanged
between J.J. and Chat, that J.J. asked her to fight Chat, and that she would have if
they had found her. She testified at trial in jail clothes because she had been
convicted in 2008 of possession of a controlled substance (cocaine) with intent to
deliver. Her other convictions were for credit card abuse, misdemeanor theft by
check, and forgery.
5
2. The Afterlife
The Afterlife is an after-hours club located at 2612 Avenue E East in Arlington.
The shooting occurred between the club’s front parking area and the street. Roy
Carter, one of the club’s valets, 7 and Arlington Police Officer Duncan J. Durham
described the Afterlife’s parking area:
There is a parking lot directly adjacent to the club’s entrance that contains
three spaces near the entrance (Roy’s “expensive” parking, also known as “VIP”
parking); additional spaces along the side of the building and a parking lot in the
back of the building (Roy’s “regular parking”); and a parking lot that belongs to an
adjacent building, which is separated from the Afterlife property by a curb (Roy’s “at
your own risk” parking). Officer Durham testified that there were several ways to
access the back parking lot from the street. State’s Exhibit 33, an aerial photograph,
shows that the parking lot at the front and side of the club is connected to the club’s
back parking lot.
J.J. testified that he and Chat were regulars at the Afterlife and that he met
Sheena there through their mutual friend Monty W ayne, another rapper. Roy
confirmed that J.J. was a regular, but he testified that before February 25, 2007, he
had never seen Chat, Kelly, or Sheena at the Afterlife.
3. February 25, 2007
7
 As a “valet,” Roy charged fees to direct patrons to parking spaces.
6
a. Before the Shooting
J.J. and Sheena each took two or three Ecstasy pills on February 24 and
decided to go to the Afterlife. Samantha had been drinking and smoking “weed” at
another club when she called J.J., who told her to meet them at the Afterlife.
The Afterlife was crowded. J.J. testified that he and Sheena arrived at the
club when it opened around 2 a.m. 8 He backed the custom-painted purple Suburban
he was driving into one of the three VIP parking spaces at the club’s front entrance.
J.J. did not pay the valet charge. Roy stated that, at the time, he assumed he would
receive his parking fee later since J.J. was a regular.
Samantha met J.J. and Sheena outside the Afterlife. J.J. gave her an Ecstasy
pill, which she took before they went inside. 9 J.J. stated that security searched him
for weapons when he entered the club, 10 and then he, Samantha, and Sheena went
into an area with a backdrop for photographs and posed for several photos with a
group. J.J. testified that the photos show some people (but not him) throwing gang
signs, that he did not recognize some of the gang signs Sheena was making, and
that he was not a gangster.
8
 J.J.’s friend Donna testified that she was at the Afterlife after 2 a.m.
9
 Samantha also smoked around five blunts that night.
10
 Samantha testified that she did not feel like security was really serious
about patting people down and that she could have brought a gun into the club if she
had wanted to. She testified that she was probably carrying a pocketknife that night,
stating, “I always have a knife if I go in a club. Always.”
7
Kelly and Chat both testified that it was Chat’s idea to go to the Afterlife that
night and that they had been there a few times before, including Valentine’s Day,
when Dwight Hollis, a photographer, took their photo. 11 Chat stated that she did not
think J.J. was going to be there on February 25, but she did not explain why she
thought this.
There is some conflict in the testimonies about when Chat and Kelly arrived
at the Afterlife and how they got into the club. Roy testified that he thought they had
arrived before J.J. and that Kelly offered him $50 to get into the club without waiting
in line. He said that he directed Kelly to someone who could get them in. He also
testified that although the Afterlife’s front door security searches people to keep
weapons out, a person can pay some money and get in through a side or back door
with a weapon.
Chat and Kelly both testified that they arrived around 3 a.m. Kelly testified that
he asked the valet about prices for the different parking areas and then requested
a parking spot “like near ways upside—side the club.” Then they waited outside at
the club’s front entrance for around twenty minutes before he was ready to give up
and go home. 12 He and Chat were walking back to his car when one of the parking
attendants told him to hold on and told another guy to take them to the side
11
 Police used these photos to identify Kelly after the shooting.
12
 Per the photographs admitted at trial, if Kelly and Chat’s estimation of their
arrival time was correct, they would have been waiting around the same area where
J.J.’s Suburban was parked.
8
entrance. Kelly stated that there was a crowd at the side door too, that they paid the
regular fee to get in, and that they were searched by security as they went in.
According to J.J., Chat and Kelly walked into the photo area around thirty to
forty minutes after he, Sheena, and Samantha arrived, while they were taking
photos. He said that he had never seen Kelly before that night, and Kelly said the
same about J.J.
Chat said that when she saw J.J. in the photo area, she said to Kelly, “There
go that nigger right there,” explaining that she meant “that’s the one that had all this
shit going on, you know; the one that was threatening me and pretty much the one
that’s harassing me.” Kelly testified that he told Chat, “[‘J]ust, you know, don’t worry
about it too much.[’] It had been like—it had been like awhile since the fight, so I felt
like, you know, they probably—he probably would let it die down or wouldn’t be so
angry as he was at first.”
J.J. stated that when he saw Chat and Kelly, he said to Monty, “Look at that
bitch right there coming in the door,” or words to that effect. J.J. said Chat turned
around because she heard him, but Kelly pushed her in the back and told her to go
on. Kelly testified that as they walked through, he heard J.J. say to the guy standing
next to him, “I can’t stand that bitch. I want to kick her ass.” Kelly said that they kept
walking and that he did not confront J.J. 13 Chat said that J.J. saw her but did not say
13
 On cross-examination, Kelly denied that he said to Chat, “Don’t worry
about that N-word, I got it.”
9
anything to her and that she and Kelly decided to finish their drinks and leave. Kelly
stated that they did not leave at once because Chat asked him if they could finish
their drinks first.
(1) In the VIP Room—Testimony
Chat led Kelly into a nearby room (the “VIP room”) to finish their drinks, and
they sat down on the left side of the room. Chat testified that there were three or
four people in the room when they entered, but Kelly said he thought they were
alone.
J.J. stated that while he continued taking photos, Samantha and Sheena left
and that he later joined them in the VIP room. Samantha testified that Sheena had
rolled a blunt, that she, Sheena, and J.J. were all smoking in the VIP room, and that
she had seen Chat and Kelly in the photo area thirty to forty-five minutes before she
encountered them in the VIP room.
The VIP room was tiny, only six or seven feet long, but J.J. stated that he did
not recall seeing Kelly or Chat in there because he was not paying attention. He
denied saying to Samantha or Sheena, “You need to jump on this girl,” or words to
that effect. Samantha stated that, at first, she did not see Chat while she was
smoking the blunt with Sheena, but then she noticed Chat dancing and saw a gun
10
in Kelly’s waistband. Kelly testified that he did not have a gun on him at the club but
that he had a nine millimeter gun in his car. 14
Chat stated that she saw J.J. walk into the room, talk to somebody, and walk
back out. She testified that when J.J. walked back out,
I like felt like somebody was staring at me. And when I looked up, it
was Samantha, and she was staring at me. And then I just kind of like
put it together. I was like, Oh, he must have been coming in here and
talking to them, or whatever. And then he stuck his head back in the
door, you know, and . . . [moved his head] like, you know, what’s up or
what y’all going to do or something like that.
Chat testified that this was the first time that she had seen Samantha since their fight
and that Samantha looked different because she was wearing an orange wig. Chat
stated that Sheena stared at her too. 15 On cross-examination, Chat testified that
Samantha looked away when Chat looked back, avoiding eye contact and moving
her head to keep her hair in her face.
Kelly testified that after he and Chat had been sitting in the VIP room for a
minute, it seemed like J.J. “just materialized,” startling him. J.J. did not say anything
14
 Crime scene investigator Susan Ozuna testified that all of the casings she
found at the crime scene were nine millimeter RP Luger shell casings of the same
brand. Tarrant County Medical Examiner’s Office firearms examiner Jamie Becker
testified that she examined the nine shell casings, all from nine millimeter Luger
cartridges and all fired from the same unknown firearm.
15
 Chat did not know Sheena but had been told that she was Monty’s sister
and had seen her in a photo with Monty, O.C., and J.J. at J.J.’s apartment. After
Chat was thrown out of the Afterlife, she saw Monty in the parking lot. W hen he
denied that Sheena was his sister, she replied,“You know who I’m talking about.
W hoever she is, you need to get her because she wrong.“
11
to him; he leaned over to talk to someone—Kelly could not see who it was—and then
left. A few minutes later, J.J. returned. Kelly said that he tried to ignore this but felt
like something was about to happen. He said that Chat identified Samantha as the
woman she had fought at J.J.’s apartment. Kelly stated that he figured he and Chat
would just wait them out because they were blocking the door and he did not feel like
they had any other options.
Chat testified that she thought something was going to happen because of the
way J.J. was acting, making her think that he was going to have Sheena and
Samantha “jump” on her. She told Kelly, “Don’t let them jump on me.” But then,
instead of leaving, Chat got up and started to dance in front of Kelly.
Kelly said that while Chat was dancing, he watched Samantha and Sheena.
He stated, “I noticed a couple of times that [Sheena] . . . was throwing gang signs
and . . . raising up her shirt. I guess she was showing a tattoo. But, you know, it
was just kind of like posturing.” He thought they were “trying to get their nerves up
to go ahead and jump [Chat].” Kelly said that as soon as Chat asked him not to let
them jump on her, he stood up at her side to protect her.
Chat testified that she was the only one dancing and that Samantha and
Sheena started closing in on her. Samantha testified that she watched Chat and
that she received the impression that something might happen between Chat and
Sheena because they were “plexing”—“picking with each other” while dancing.
12
Chat and Kelly both testified that Sheena elbowed Chat as Sheena and
Samantha left the VIP room. Chat stated that she staggered first, “bumped it back,”
then turned around and hit Samantha in the face because she thought Samantha
was going to attack her from behind. Chat said that Kelly jumped up and tried to
break up the fight as it spilled out into the hallway. Kelly testified that Chat went after
Sheena when Sheena bumped her and he tried to break it up. Samantha testified
that Kelly hit her and that she did not know where Sheena went while she was
fighting Kelly and Chat. Kelly said that he did not hit Samantha.
(2) In the VIP Room—DVD
Both parties published a seven-minute security DVD from the VIP room to the
jury. The DVD shows part of the small dark room and has no audio. The VIP room
contains a sofa next to a lamp on one wall. Against an adjacent wall, there is a
laptop computer, a flat screen television above the laptop, and a chair next to the
laptop. From the number of people that pass through the room, it appears that there
are two exits.
W hen the DVD begins, J.J. is swaying and smoking while standing in front of
Sheena. Sheena sits on the sofa near the lamp. J.J. leaves, walking past where
Kelly and Chat sit. 16 A female in a black shirt with “STAFF” in white on the back sits
16
 The DVD does not show Chat and Kelly’s entrance. W e infer that they
were already present at this point from Chat’s testimony that she and Kelly were off-
camera where they sat and from Chat’s sudden appearance in the lower left side of
the room (as if she stands up from sitting in a location out of the camera’s view)
about halfway through the DVD.
13
down next to Sheena and they appear to talk. Samantha sits on the arm of the chair
next to the laptop, across the room from Kelly and Chat. She hands a blunt to
Sheena and walks over to where Kelly and Chat are sitting before walking back to
the chair.
Around a minute later, J.J. walks back into the room and hands Samantha a
blunt on his way to Sheena. He appears to greet the staffperson and to dance with
Samantha for a moment. He looks in Chat and Kelly’s direction while he dances and
drinks.
Sheena stands when J.J. walks over to her, but she is initially blocked from
the camera’s view by the staffperson, who stands up and takes the blunt from
Samantha. Sheena and Samantha pass the blunt back and forth several times. J.J.
greets other people as they enter the VIP room, and he throws some gang signs
before walking back out. Chat first appears on the DVD moments later at the bottom
left portion of the screen, dancing with a drink in her hand.
Samantha alternates between sitting on the arm of the chair and standing up,
occasionally moving in place. Three people file in and sit on the sofa where Sheena
had been sitting. Sheena dances behind Chat while smoking, gradually moving
closer to her. Other people file in and out of the small room, standing, dancing,
chatting with Sheena or Samantha, and from time to time, walking between where
Sheena and Chat are dancing. W hen Sheena turns her back to Chat and Kelly,
Sheena lifts up the back of her shirt while continuing to dance.
14
At one point, Samantha appears to stand next to Chat before returning to sit
back down on the chair by the laptop. Chat continues to gyrate with a drink in one
hand. Chat leans down out of the camera’s view, and then Kelly stands up. Chat
sways alongside him while Sheena and Samantha pass their blunt back and forth
and sway in front of them. A male staffperson talks to Sheena and Samantha, and
then Samantha hands a purse to Sheena. Sheena appears to make some farewells
to the people on the sofa and heads toward an exit. The DVD is unclear as to
whether Chat touches Sheena as Sheena walks past her, but Sheena clearly bumps
Chat and then a fight ensues.
(3) Outside the VIP Room
Bouncers broke up the fight pretty quickly. Samantha stated that, once
outside of the VIP room, she and Sheena separated to find J.J. J.J. stated that five
to ten minutes after he left the VIP room, Sheena and Samantha ran back around
to the photo area, demanding to leave. Samantha was carrying her wig “like
someone had knocked it off her head.”
J.J. said, “Everybody in the club was telling us, ‘Go on, leave,’” but he also
said that security did not ask Samantha and Sheena to leave. 17 He said that he did
not know that Samantha and Sheena had been in a fight with Chat until the next day.
But Samantha testified that although she did not tell him right then that someone had
17
 Donna testified that, contrary to what she told police on February 25, she
did not see security evict Samantha and Sheena from the club.
15
hit her, Sheena told J.J. about it. Samantha supposed this made J.J. mad, and “[h]e
was already drunk.” She gave the following testimony about Sheena having a
weapon:
Q. So Sheena came up to y’all while you were talking to [J.J.]?
A. No. W e made it—she was in the hallway, the hallway [outside the
VIP room] . . . . She was in that hallway. She pulled out—I guess there
was a gun. She had a gun. It was pulled out in that hallway.
Everybody—it was just commotion, you know. [J.J.] was like,
[“]W here’s Sheena?[“] By this time, she was coming back—the security
guards was [sic] trying to, I guess, maybe make her leave out or—I
really don’t know what they were trying to do.
....
Q. You said something about a gun—just now. Sheena had a gun?
A. Yeah.
Q. W hen did you see Sheena with a gun?
A. W hen I had done found my brother [J.J.] and that—it was—it was
commotion. She was in that hallway.
Samantha added that she did not see the gun again but guessed that Sheena had
put it in her purse.
Security escorted Chat and Kelly from the club. Once outside, Chat realized
she did not have her purse; security would not let her back in but allowed Kelly to go
back to look for it. Five or ten minutes later, he rejoined Chat without the purse and
told her to get in the car. Kelly said he tried to collect himself once they were in the
car, and then he put the gun that had been under his seat “in between the console”
16
and the side of the seat. He started to slowly drive out of the Afterlife’s parking lot
the same way he had come in—by the Afterlife’s front entrance.
J.J., Samantha, and Sheena were starting back to the Suburban when Roy
saw them. He stated, “It seemed like [J.J.] was upset, and it really, to me, it seemed
like something happened. So it seemed like something had happened, and he was
upset and ready—like he was ready to do something, you know. I mean, I just
remember him talking about having a tool” and about having a pistol and wanting to
do something. Roy added that he believed “tool” meant “gun.”
Roy walked towards J.J. because he wanted his valet fee. W hen he shined
his flashlight on Sheena’s purse, he saw a gun, which he described as semi-
automatic and chrome-plated or nickel-plated. He testified that he said, “Y’all need
to take that somewhere else,” and that Sheena told him that it had nothing to do with
him in a manner that he described as “kind of subtle, you know, like serious.” He did
not take her remark as a threat towards him.
Sheena climbed into the Suburban’s front passenger seat and Samantha
climbed into the back, but they did not leave immediately. Roy stated that J.J. had
his window down. Roy persisted in trying to get his valet fee and did not recall
seeing either J.J. or Sheena with a gun at that point. Samantha and Roy both
recalled J.J. and Sheena talking about what had happened inside the club; Roy
17
added that J.J. talked about fighting someone and said something like, “It can
happen right here.” At that, Roy concluded, he would just get his fee later. 18
b. The Shooting
On appeal, the parties do not appear to dispute that Kelly shot Sheena but
challenge whether the great weight of the evidence shows that his actions were
justified.
(1) Chat and Kelly’s Version
Chat testified that as Kelly approached the parking lot exit, she saw Samantha
standing next to the Suburban, talking to J.J., who was in the driver’s seat. She
yelled for Kelly to stop the car as they passed the Suburban. Kelly described Chat
making a high-pitched sound and then screaming for him to stop. Kelly said that
when Chat said “stop,” he stopped the car toward the front of the parking lot, in front
of the Suburban. 19
18
 Roy stated,
[J]ust my own intuition, because I don’t remember whether it was
something that they said about the other vehicle approaching or not.
I just remember something just told me to back up, because I seen he
wasn’t paying me any attention, you know, and something obviously
was happening or going to happen. That’s what was going through my
mind, you know, and I had already seen a weapon in the car—I mean[,]
on the girl. So I figure that, you know, I probably need to leave it alone.
I’ll see him again.
19
 On cross-examination, Chat said that Kelly did not completely stop the car
until they were out of the parking lot. “He pulled right up on the curb and stopped.”
18
Chat rolled down her window and, according to Kelly, began to tell J.J. in
“choice words that he needs to just leave that alone and she was just tired of him.”
Chat said that she and J.J. locked eyes and she cussed at him, saying “You know
you wrong for this” and “Stop messing with me. And why are you still tripping? W hy
are you still fucking with me? W hy are you on this bullshit?” Sheena’s window was
down, and she and Sheena ended up in a “cuss fight.”
Kelly said that J.J.’s eyes lit up when he saw Chat and then “[J.J.] told her
choice words back.” He saw something in J.J.’s hand that he thought was a gun,
and then J.J. said, “Bitch, I’ll kill you.” Chat described J.J.’s reaction as “[i]t was like
fuck you, fuck you, fuck you; just a whole lot of fuck yous going back and forth. And
he waved a gun and he put the [Suburban] in gear and he came around.” W hen she
saw the gun, she told Kelly, “He got a gun. Like, Oh, shit.” Kelly said he was
already aware of the gun at that point. He said that he had not picked up his gun at
that point and that “[w]hoever said they seen a gun or said that I picked up a gun
then is a liar . . . . They’re lying, because I didn’t pick up a gun yet.”
Kelly drove out of the parking lot, turned right, and then stopped the car,
explaining:
The thing—the thing that I’m thinking, I’m knowing he got a gun, and
I’m just feeling like if—if he going to do something to me, I’m not going
to have a way—I’m not going to have no way to protect myself or
defend myself, because whoever in that car, they can shoot me straight
through the back of the car, shoot anybody in the car, just shoot
through the car window.
19
He grabbed his gun and got out of the car, explaining on cross-examination that he
did it not only to take a defensive position but also to give J.J. a chance to leave
without any problems.
The Suburban exited the parking lot, turned right, and came around at
them—Chat said that she thought she saw three people in the vehicle. Kelly said
that, as the Suburban entered the road from the parking lot, he thought, “[T]hey’re
going to come this way and they fixing to do something.” Kelly stated that he knew
anyone in the Suburban could kill him or Chat but that he did not know which of the
Suburban’s occupants, other than J.J., had a weapon. He did not know that Sheena
had a gun.
Kelly raised his gun and started shooting. He said that he was aiming “at
nothing in particular” nor at anyone in the Suburban and that he was just shooting
in the Suburban’s direction “[b]ecause they was coming toward me, and from
everything that had happened up until that moment, it told me that when they came
toward me, they was going to start shooting.” He testified that he was in fear for his
and Chat’s lives and that he was trying to save their lives by scaring the Suburban’s
occupants away. He did not remember how many times he fired the gun.
Chat testified that once the Suburban turned, she heard “boom, boom” from
J.J.’s vehicle, which sounded like two gunshots to her, but she did not see any shots
fired. The next series of “booms” sounded like they came from right next to her, then
20
Kelly got back into the car, and they drove to Dallas. Chat testified that she had not
realized until then that Kelly had gotten out of the car.
Kelly said that after the Suburban drove past him, he got back in the car and
threw the gun in the back seat. He was not sure that anyone in the Suburban shot
at him.20 After he left Chat on February 25, Kelly threw the gun off the side of the
highway and returned the red car to its owner, “a guy [he] knew who owned a car
lot.” Kelly did not see any bullet holes in the car.
Kelly stated that he did not want the confrontation to happen that night, he did
not want to shoot anyone that night, and he did not want Sheena to die. He “just
didn’t want to get shot [him]self,” and he did not want Chat to get shot. Chat and
Kelly both said that they did not find out until later that Sheena had died.
(2) J.J.’s Version
20
 On cross-examination, Chat gave the following testimony:
Q. But you’re sure that J.J. started shooting first?
A. Yes.
Q. And if it was otherwise, first of all, he’d be in trouble, right?
A. W ho?
Q. Your baby’s daddy [Kelly].
A. Say that again.
Q. I mean, if [Kelly] shot first, that wouldn’t look good, would it?
A. No, it wouldn’t.
21
J.J. stated that the red car pulled up and stopped in front of the Suburban and
that Samantha told him that the people in the car had a gun but he did not see one.
“Next[,] the [red] car pulled out some, pulled in the street and stopped.[ 21 ] That’s
when Chat was getting out of the car and she was hollering. And Sheena rolled the
window down. They went to hollering back and forth at each other.” J.J. testified
that he saw Kelly get out of the car, go to the back of it, squat down, and start firing.
He did not see Kelly point the gun.
J.J. ducked down, put the car in drive, “smashed” the gas, drove “up the
street,” made a U-turn, drove back down the street, and pulled into a nearby gas
station. He did not know if the shooting continued while he drove away.
(3) Samantha’s Version
Samantha stated that the red car pulled up in front of the Suburban and
stopped, blocking it in. She told J.J., “That’s them right there.” She added, “I guess
it was Chat on the passenger side,” and she guessed that Chat had the gun. The
red car then pulled on to the side of the Suburban. Samantha heard Chat say, “Nah,
nigger, don’t run now,” and then Chat and Kelly stepped out of the red car.
Samantha did not see whether either had a gun because she “wasn’t trying to see
no more”; she let herself out of the Suburban and crawled under a nearby car. She
heard shots fired, but she did not see who was shooting or see if there was more
21
 J.J. subsequently clarified that he meant “halfway in the parking lot and
halfway in the street” at an angle.
22
than one gun. She said that the Suburban moved after the shots were fired and
drove east down Avenue E, then made a U-turn, but she also said that she did not
see J.J. drive away and that she did not see J.J. stop anywhere.
(4) Donna’s Version
Donna had parked her car in the parking lot on the left-hand side of the club.
She saw J.J.’s window was open (“cracked some”), but she did not stop to talk with
him. As she continued to her car, she heard gunshots. She turned and saw J.J.’s
Suburban pulling out and a guy standing in front of a red car, shooting at the
Suburban. Chat was in the car’s front seat. Donna did not see J.J. or Sheena point
a gun. She stated that the Suburban was already out in the street when she heard
the first gunshot and that the Suburban drove past the shooter.
(5) Roy’s Version
Roy testified that the Suburban pulled out first and stopped in the middle of the
street in the inside lane (“the lane closest to the middle”)—“like right in between the
club entrance and about the end of the median.” 22 Then the red car pulled out
behind it into the outside lane (“the lane closest to the club”) and stopped behind the
Suburban. Kelly got out of the red car, walked in front of the red car, stopped about
two feet from the Suburban in the area between the back door crevice and the front
door on the passenger side, and started shooting inside of it. Roy stated that, as far
22
 Avenue E East has two lanes going east and two lanes going west,
separated by a grass median.
23
as he could tell, no one in the Suburban fired back and that four to seven shots were
fired. After that, Kelly returned to the red car and pulled out.
The Suburban pulled off to the left. Roy saw the Suburban reappear at a
nearby gas station but did not see J.J. get out of the vehicle or drive away.
c. At the Hospital
J.J. first realized Sheena had been hit when he pulled into the gas station. He
took her to nearby Arlington Memorial Hospital (the “Hospital”), where she remained
for the next seven and a half hours before she was pronounced dead from a gunshot
wound to her head. 23
Arlington Police Officer Chris Janssen testified that he heard a shooting call
from the Hospital around 4:37 a.m. on February 25 and found J.J., who had blood
on his shirt and pieces of skull on his clothing, in the waiting room. J.J. identified
Chat as someone involved in the shooting.
Arlington Police Detective Benjamin Lopez and another detective interviewed
J.J., Samantha, Cyntrell, and Donna on February 25. Officer Janssen testified that
J.J. appeared upset and in shock when he spoke with him; Detective Lopez testified
that J.J. was not incoherent or so intoxicated that he could not communicate.
4. After February 25, 2007
23
 Tarrant County Deputy Chief Medical Examiner Marc Krouse, who
performed Sheena’s autopsy, stated that the entry wound was on Sheena’s right
forehead, just above the outside of her eyebrow, and that the exit wound was on her
head’s left side.
24
J.J. told the police that the Suburban belonged to his girlfriend Telethia and
that he could not give them permission to search it. Once they received permission
to search the Suburban, police found Sheena’s purse, containing marijuana and
$480 in cash. J.J. testified that he did not take anything out of Sheena’s purse, that
he had not seen her with a gun, nickel-plated or otherwise, that evening, and that he
did not throw anything—not a handgun or a shell casing—out of the Suburban.
J.J. kept a black .45 caliber handgun hidden under the Suburban’s console.
The police found it loaded and “cocked and locked,” 24 with Sheena’s blood on it. 25
J.J. testified that he never kept the gun loaded, never shot it, and did not remember
loading it or cocking it, although he also stated that it is something that he would
have done if he had had the chance. He did not remember grabbing the gun at any
time during the incident, but he acknowledged that it was possible that he did. W hen
he spoke to the police on February 25, he did not mention his .45 in the Suburban. 26
24
 The State’s firearms examiner explained that “cocked and locked” means
that the weapon has a round chambered and the hammer is on the rear (“cocked”),
but that the thumb safety is still on (“locked”). “Cocked and unlocked” means that
the weapon is ready to fire.
25
 A substantial amount of blood from Sheena’s injury was deposited on the
inside of the Suburban.
26
 Becker testified that based on her microscopic comparison on the nine
cartridge cases found in the Afterlife parking lot and the street, it was impossible for
the cartridges to have been fired from a .45. Becker stated that one reason no .45
casings were found in the parking lot was because the cartridge remains in a
revolver like the .45 after firing until it has been physically opened and removed. In
a semi-automatic, the cartridges are extracted and ejected for the next cartridge to
be fed into the chamber.
25
Photographs of the Suburban’s interior show a jacket placed in the back seat,
covering part of the console and the floorboard. J.J. testified that he did not place
the jacket there to cover up either drugs or blood, both found in the Suburban.
However, Detective Lopez testified that the coat had to have been placed there after
the shooting or it would have had blood on it. He testified that J.J. had obviously
hidden the gun under the console and agreed that, from the gun’s bloody condition,
J.J. had obviously had the gun out at some point.
Detective Lopez looked for Chat. At Club Hard Bodies, he found Dwight, who
provided Chat and Kelly’s photos taken at the Afterlife on Valentine’s Day. Detective
Lopez located Chat’s family, who gave police information to identify Kelly, and Roy
identified Kelly from one of Dwight’s photos as the person the police were looking
for.
Ozuna testified that she did not find any bullet defects in the front of the
Afterlife. Detective Lopez testified that, from the photographs of the Suburban, there
were no gunshot defects and it did not appear to have been hit by gunfire on the
wheels, rims, anywhere on the vehicle’s body, or on the inside. 27 The Suburban’s
glass was completely intact, meaning that Sheena’s window would have had to have
been down at the time she was shot, and from the amount of blood inside the
Suburban, Sheena could not have been shot while sticking her head outside the
27
 Officer Durham arrived at the Hospital around 4:50 a.m. on February 25
and secured the Suburban but did not touch the vehicle or notice any bullet holes in
its driver or passenger sides.
26
window. Sheena’s wound was a “through-and-through” wound, meaning that there
was an entry wound and an exit wound, but police did not find a projectile in the
Suburban.
B. Standard of Review
Because self defense is classified as a defense rather than an affirmative
defense, we apply the factual sufficiency review generally applied to convictions to
an appellant’s factual sufficiency challenge to the jury’s implicit finding against his
self defense claim. Bundy v. State, 280 S.W .3d 425, 433 (Tex. App.—Fort W orth
2009, pet. ref’d).
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
27
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
C. Analysis
Kelly argues that “[t]he greater weight and preponderance of the credible
evidence herein shows that [he] acted in self-defense from the apparent danger
created by the anticipated attack of multiple assailants not only of himself but of a
third party, [Chat], so that it is manifestly unjust” that he was convicted of murder.
He contends that both Sheena and J.J. were armed that night and had used illegal
substances, that there had been a prior fight between Samantha and Chat, that J.J.
had threatened to kill Chat, that there had been a fight between Chat and Sheena
in the club immediately prior to the shooting, that Chat expressed a reasonable fear
of multiple assailants to Kelly, and that the occupants of J.J.’s vehicle fired first. And
he states that “[v]irtually every witness whose story conflicts with [his] has a prior
criminal record,” making his testimony more credible than theirs.
28
The jury had to determine whether Kelly intentionally or knowingly caused
Sheena’s death by shooting at her (or at J.J.) 28 with a deadly weapon, or whether he
intentionally, with the intent to cause serious bodily injury to Sheena (or J.J.),
committed an act clearly dangerous to human life by shooting at Sheena (or J.J.)
with a firearm, causing Sheena’s death. See Tex. Penal Code Ann. § 19.02(b)(1),
(2). If the jury found that Kelly committed these acts, then to acquit him, it would
have had to find that Kelly was justified in using force or deadly force to defend
himself or Chat.
According to the law in effect at the time of the shooting, 29 a person is justified
in using deadly force against another (1) if he would be justified in using force
against another under section 9.31, (2) if a reasonable person in his situation would
not have retreated, and (3) when and to the degree he reasonably believes the
deadly force is immediately necessary to protect himself against the other’s use or
28
 The jury was instructed on the law of transferred intent. See Tex. Penal
Code Ann. § 6.04(b)(2) (Vernon 2009).
29
 The legislature has since amended penal code sections 9.31 and 9.32,
but the offense for which the jury convicted Kelly occurred on February 25, 2007,
before the September 1, 2007 effective date of the amendments. Our analysis of
Kelly’s appeal is therefore governed by the earlier statutes. See Act of June 19,
1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598,
and Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen.
Laws 2141, 2141, both amended by Act of March 27, 2007, 80th Leg., R.S., ch. 1,
§ 5, 2007 Tex. Gen. Laws 1, 2 (codified as an amendment to Tex. Penal Code Ann.
§§ 9.31, 9.32 (Vernon Supp. 2009)) (stating that an offense committed before the
act’s effective date is governed by the sections in effect when the offense was
committed).
29
attempted use of unlawful deadly force or to prevent the other’s imminent
commission of murder, among other offenses. See Act of May 27, 1995, 74th Leg.,
R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007); see
also Davis v. State, 268 S.W .3d 683, 697–98 & n.3 (Tex. App.—Fort W orth 2008,
pet. ref’d). At the time that this version of penal code section 9.32 was effective,
section 9.31 provided that 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 Act
of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws
3586, 3598 (amended 2007). The use of force against another is not justified in
response to verbal provocation alone, nor is it justified if the actor provoked the
other’s use or attempted use of unlawful force unless the actor abandons the
encounter or clearly communicates his intent to abandon while reasonably believing
that he cannot safely abandon the encounter and the other person continues or
attempts to use unlawful force against him. See id. A person is justified in using
force or deadly force against another to protect a third person if, under the
circumstances as he reasonably believes them to be, he would be justified in using
force or deadly force to protect himself, and he reasonably believes that his
intervention is immediately necessary to protect the third person. See Tex. Penal
Code Ann. § 9.33 (Vernon 2003).
30
W e conclude that there is factually sufficient evidence to support the jury’s
determination that Kelly did not act in self defense or in Chat’s defense. That is,
there were fact questions before the jury with regard to whether, from Kelly’s
standpoint, his use and degree of deadly force was immediately necessary to protect
himself or Chat; whether a reasonable person in Kelly’s situation would have
retreated; whether Kelly reasonably believed that he or Chat was in danger of death
or serious bodily injury; and whether Kelly provoked J.J.’s (or Sheena’s) use or
attempted use of unlawful force and failed to abandon the encounter or clearly
communicate his intent to abandon the encounter. That is, the jury could have
concluded from the evidence above (1) that Kelly and Chat had the opportunity to
retreat several times that night and that a reasonable person would have, (2) that
Kelly’s shooting Sheena (or shooting at J.J. and hitting Sheena) was in response to
only verbal provocation immediately prior to the shooting and that J.J. or Sheena did
not draw a weapon first (if at all), or (3) even that Kelly and Chat went to the Afterlife
intending to provoke a confrontation and failed either to abandon the encounter or
to clearly communicate their intent to abandon the encounter.
Additionally, while it is undisputed that several of the actors had possession
of a firearm at one time or another during the evening, the only evidence of shots
actually fired (other than Chat’s testimony) consists of the nine shell casings from the
same nine millimeter gun, the type of gun that Kelly carried, admitted shooting at the
Suburban, and then destroyed. The jury could have chosen not to believe Chat’s
31
testimony that J.J. fired at Kelly first, particularly in light of Kelly’s testimony that
there were no bullet holes in the car he drove that night. In short, the jury had the
responsibility to determine witness credibility and could have chosen who and what
portion of testimony to believe and to disbelieve. W e cannot say, viewing the
evidence in a neutral light, that the jury’s determination is clearly wrong and
manifestly unjust or that the conflicting evidence so greatly outweighs the evidence
supporting Kelly’s murder conviction that the jury’s determination to implicitly reject
Kelly’s self defense and defense of others claims is manifestly unjust. See Watson,
204 S.W .3d at 414–15, 417. W e overrule Kelly’s first point.
IV. Closing Argument
In his second point, Kelly complains about the following italicized portions of
the State’s closing argument during the trial’s guilt-innocence phase:
[State]: . . . First, you have to consider, is the Defendant guilty of
murder? Did the Defendant intend to kill Sheena Perkins, or did he
intend to kill J.J. Coffey and instead strike Sheena and kill Sheena?
And the answer’s yes. If you find that the Defendant committed murder,
then and only then will you consider self-defense.
[Defense]: I’m going to object to that, Judge. That’s a misstatement of
the law. That’s not the state of the law. They don’t have to find murder
before they get to self-defense. That’s a clear misstatement of the law.
[State]: Judge, if they find him not guilty, they don’t get to self-defense.
The Court: All right. Overruled.
32
[State]: . . . . And there are two requirements here that are very, very
important. And the first is, if I’m going to use deadly force, there has to
be a duty on my part to retreat before I use that deadly force. And that
duty, when you-all look at it, will be from each one of your perspectives.
All right? Not from whether the Defendant could see a duty to escape
or could see an avenue of escape; whether you-all, placed in that
situation that night on the 25th of February of 2007 in Tarrant County,
Texas, would have retreated.
[Defense]: W ell, I’m going to object to that, Judge, as a misstatement
of the law. It’s not what these folks would have done. It’s what an
ordinary, reasonable, prudent person would have done in the
Defendant’s shoes.
[State]: I would submit that these 12 jurors, Your Honor, are ordinary
and reasonable and prudent individuals.
The Court: I am going to sustain the objection.
[Emphasis added.]
W e initially note that Kelly did not preserve his second objection. See Tex. R.
App. P. 33.1(a); Young v. State, 137 S.W .3d 65, 69 (Tex. Crim. App. 2004) (“The
essential [preservation] requirement is a timely, specific request that the trial court
refuses.” (emphasis added)). W ith regard to his first objection, Kelly complains that
the State’s argument that the jury must have first found that he committed murder
before it considered self defense is “a clear misstatement of the law and the
instructions given in the charge.”
A. Standard of Review
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
33
deduction from the evidence; (3) answer to argument of opposing counsel; or (4)
plea for law enforcement. Felder v. State, 848 S.W .2d 85, 94–95 (Tex. Crim. App.
1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W .2d 230, 231
(Tex. Crim. App. 1973).
If a jury argument exceeds the bounds of proper argument, a trial court’s
erroneous overruling of a defendant’s objection is not reversible error unless it
affected the appellant’s substantial rights. Tex. R. App. P. 44.2(b); Martinez v. State,
17 S.W .3d 677, 692–93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W .2d 249,
259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). In
determining whether the appellant’s substantial rights were affected, we consider (1)
the severity of the misconduct (i.e., the prejudicial effect of the prosecutor’s
remarks), (2) curative measures, and (3) the certainty of conviction absent the
misconduct. Martinez, 17 S.W .3d at 692–93; Mosley, 983 S.W .2d at 259.
B. Analysis
Assuming without deciding that overruling Kelly’s objection was error, we hold
that it was harmless, and we reject Kelly’s argument for two reasons. First, the
timing is immaterial. If, as argued by the State, the jury first found that Kelly
committed murder but then found that he was acting in self defense, he would have
been found not guilty. If, as argued by Kelly, the jury believed that he acted in self
defense, and therefore did not commit murder, he also would have been found not
guilty. See Saxton v. State, 804 S.W .2d 910, 913 (Tex. Crim. App. 1991) (“[T]he
34
State has the burden of persuasion in disproving the evidence of self-defense. That
is not a burden of production, i.e., one which requires the State to affirmatively
produce evidence refuting the self-defense claim, but rather a burden requiring the
State to prove its case beyond a reasonable doubt. . . . [C]ase law instructs us that
the issue of self-defense is an issue of fact to be determined by the jury.”) (internal
citations omitted). The bottom line is that Kelly presented his self defense theory,
and the jury disbelieved it.
Second, we turn to the three Martinez factors and recall that for an improper
jury argument to warrant a reversal, it must be “extreme or manifestly improper.”
Guidry v. State, 9 S.W .3d 133, 154 (Tex. Crim. App. 1999), cert. denied, 531 U.S.
837 (2000). The first factor weighs in the State’s favor because the prosecutor’s
conduct was mildly prejudicial, if at all, making this argument only once and not
commenting on Kelly’s presentation of self defense evidence. No curative measures
were taken after the trial court overruled the objection; however, the certainty of
conviction tips the balance in the State’s favor because, as previously explained, the
complained-of argument did not touch upon the case’s facts regarding self
defense—a fact issue to be determined by the jury. See Adelman v. State, 828
S.W .2d 418, 421 (Tex. Crim. App. 1992). Therefore, assuming the trial court erred
by overruling Kelly’s objection, the error was harmless. W e overrule Kelly’s second
point.
V. Conclusion
35
Having overruled both of Kelly’s points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, GARDNER, and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 30, 2010
36