Description: The parties dispute which standard of review applies to this appeal. Strauser argues legal
and factual sufficiency standards of review apply, while the State argues the factual-sufficiency
standard is “extinct” and only the Jackson v. Virginia sufficiency standard applies.
In Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010), the court of criminal
appeals explained there was “no meaningful distinction between the Jackson v. Virginia legal
sufficiency standard and the Clewis factual-sufficiency standard” and that “these two standards
have become indistinguishable.” Therefore, the court of criminal appeals held “that the Jackson v.
Virginia standard is the only standard that a reviewing court should apply in determining whether
the evidence is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt.” Id. at 912. The court then overruled “[a]ll other cases to the
contrary, including Clewis.” Id.
Three years later, the court of criminal appeals explained that the Clewis factual sufficiency
standard was still applicable to sufficiency reviews of the rejection of an affirmative defense.
Matlock v. State, 392 S.W.3d 662, 664 (Tex. Crim. App. 2013). The court distinguished Brooks,
noting that the Jackson v. Virginia “constitutional standard of review applies to elements of an
offense that the State must prove beyond a reasonable doubt, but . . . does not apply to elements of
an affirmative defense that the defendant must prove by a preponderance of the evidence.”
Matlock, 392 S.W.3d at 667.
The instant case, however, does not involve the rejection of an affirmative defense. Self
defense and necessity are defenses rather than affirmative defenses. See Bowen v. State, 162
S.W.3d 226, 229 (Tex. Crim. App. 2005) (stating that necessity is a defense); Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that self-defense is “classified as defense, as
opposed to an affirmative defense”); see also TEX. PENAL CODE ANN. §§ 9.02, 9.22, 9.31 (West
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2011). Thus, the Clewis factual-sufficiency standard does not apply in this case. See Pridgen v.
State, 12-13-00136-CR, 2014 WL 6792583, at *1 (Tex. App.—Tyler 2014, pet. ref’d) (explaining
Matlock did not apply because self-defense is a defense and not an affirmative defense).
Finally, Strauser argues that in conducting a review of the evidence, we should consider
“the existence of all alternative reasonable hypotheses.” However, the reasonable-alternative
hypothesis theory does not apply to an evidence-sufficiency review. See Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012) (“For the evidence to be sufficient, the State need not disprove
all reasonable alternative hypotheses that are inconsistent with the defendant’s guilt.”); see also
Ramsey v. State, 473 S.W.3d 805, 811 (Tex. Crim. App. 2015).
We therefore conclude the Jackson v. Virginia sufficiency standard applies in this case. In
such a review, we view all 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. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). This standard
“recognizes the trier of fact’s role as the sole judge of the weight and credibility of the evidence
after drawing reasonable inferences from the evidence.” Id. Therefore, on appellate review, we
determine whether based on “cumulative force of all the evidence” the necessary inferences made
by the trier of fact are reasonable. Id. We conduct this constitutional review by measuring the
evidentiary sufficiency with “explicit reference to the substantive elements of the criminal offense
as defined by state law.” Id.
DISCUSSION Section 9.31 of the Texas Penal Code provides that “a person is justified in using force
against another when and to the degree [that person] reasonably believes the force is immediately
necessary to protect [himself] against [another person’s] use or attempted use of unlawful force.”
TEX. PENAL CODE ANN. § 9.31(a) (West 2011). Such use of force against another is not justified
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“in response to verbal provocation alone.” Id. § 9.31(b)(1). Section 9.22 provides that a person’s
conduct is justified if “the actor reasonably believes the conduct is immediately necessary to avoid
imminent harm.” Id. § 9.22.
Once a defendant produces some evidence raising the issue of self-defense or necessity,
the State bears the burden of persuasion to disprove the raised defense. Zuliani v. State, 97 S.W.3d
589, 594 (Tex. Crim. App. 2003). “The burden of persuasion is not one that requires the production
of evidence, rather it requires only that the State prove its case beyond a reasonable doubt.” Id.
“When a jury finds the defendant guilty, there is an implicit finding against the defensive theory.”
At trial, both Strauser and the complainant, twenty-four-year-old Jordan W., testified.
Jordan W. testified that on the day of the incident, December 11, 2014, she had been in a
relationship with Strauser for two years and was the mother of his three-month-old child. Her
birthday had been on December 10, 2014, the day before the incident. According to Jordan W.,
she was upset because Strauser had made an appointment on her birthday to color the tattoo on his
right arm. So, instead of going out on her birthday, she and Strauser had dinner plans the day after,
December 11, 2014. When Jordan W. arrived at the home of Strauser’s parents at 7:15 p.m. on
December 11, 2014, Strauser was still asleep. Jordan W. testified that she took the baby inside the
home, gave the baby to Strauser’s parents, and then waited for Strauser to get ready for dinner.
Jordan W. described Strauser as being “a little agitated, grouchy.” According to Jordan W., she
was anxious to leave because Strauser’s parents wanted them back by 9:30 p.m.
Strauser and Jordan W. left to go to the restaurant. Strauser was driving. They had just left
the neighborhood when Strauser asked why she was quiet and upset. Jordan W. replied that she
was not upset. Jordan W. testified that Strauser then became “a little more agitated.” Jordan W.
would not tell Strauser why she was upset or whether she was upset. Strauser kept asking her what
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was wrong and why she was in a bad mood. Jordan W. testified, “I think that I was being a little
quiet because we were already late, and it was a late birthday dinner, and we only had a certain
amount of time.” Jordan W. claimed that she was not upset about Strauser not buying her a present:
“I wasn’t – the material stuff doesn’t really matter to me. It was just that I had, you know, his
three-month-old child and he – instead of doing something, thinking of me enough on my birthday,
he made an appointment instead.”
Strauser continued to ask Jordan W. why she was upset. Jordan W. testified that she
eventually replied, “Well, you really want to know why I’m upset? It’s because of this!” Jordan
W. then “backhanded his tattoo” on his right forearm.
I kind of smacked it just to show, like, this is what I’m angry about. I didn’t do it to hurt him. I just felt, you know, pushed a little bit and upset at that point. I was kind of upset so – I didn’t do it to hurt him. I just – that’s wh[at] I was upset about and he asked what I was upset about . . . .
Jordan W. testified that in response, Strauser “immediately just punched me closed fist in the eye,
left eye.” Jordan W.’s head then hit the window and “kind of bounced off of it.” According to
Jordan W., she was “in shock for a second” and “didn’t really know what happened.” Jordan W.
was worried that her head was bleeding and yelled, “[W]hat are you doing?” Jordan W. testified
that Strauser then “reached over and closed fist punched [her] again in the lip.” She began to bleed
from the mouth. Jordan W. testified that to prevent herself from being hit again, she put her hands
up and put her head on the dashboard. She testified she could taste blood in her mouth, which
began dripping once she put her head down. Strauser then hit her a couple of more times to the
back of her head with his closed fist. Jordan W. testified she was terrified and “just didn’t move
for a while until it kept happening.” “[A]t that point, I tried to push him off me and kind of do
whatever I could to get him away.” Jordan W. testified that she then scratched Strauser “trying to
get him off [her] in any way possible.”
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Strauser parked in the back of a parking lot of a retail store. Strauser “kept yelling, ‘[W]hy
would you make me do this? Why would you do this?’” Jordan W. testified that she was “dizzy”
and felt like she could not “really breathe.” She testified she did not get out of the car because she
did not think that she could. “I was terrified. I thought that if I did anything I would make him
more angry, and that maybe my son would be without a mom.” Jordan W. stayed in the car with
her head down on the dashboard. Strauser grabbed her “by the back of the hair, pulled [her] up and
spit in [her] face, and then started choking [her].” Jordan W.’s vision “kind of went black for a
little while.” Strauser then let her go and got out of the car. According to Jordan W., Strauser was
in a rage and kept yelling the same thing over and over, “You stupid b----, why did you make me
do this? Why did you do this? This is your fault.”
Jordan W. had her head down and saw him out of the corner of her eye pacing back and
forth. Strauser got back into the car and drove them back to his parent’s home. His parents were
outside. Strauser got out of the car and was still yelling. Jordan W. got out of the car and was still
dizzy. According to Jordan W., Strauser’s mom saw her and was “in hysterics.” “She was crying
and apologizing.” Jordan W. went inside the house, and Strauser’s brother took her by her hand to
the bathroom. Jordan W. testified that when she saw herself in the mirror, her eye was “completely
swollen over.” She had “blood coming out of [her] mouth and [her] lip was puffed up.” According
to Jordan W., she then “just started crying.” Strauser’s brother called the police.
Jordan W. was adamant that she never attempted to pull the steering wheel of the car and
did not attempt to crash the car. She also testified that she did not bite Strauser. She admitted that
she scratched him trying to push him away from her.
Photographs and medical records admitted in evidence show the injuries suffered by Jordan
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Bexar County Deputy Sheriff Veronica Casanova testified that she was on patrol December
11, 2014, when she received a call from dispatch at about 8:30 p.m. Casanova testified that she
talked to Strauser first, who was outside in the yard. “If I remember correctly he stated that [he]
and his girlfriend got into an argument because it was her birthday, and he didn’t buy her a gift or
something to that effect.” Strauser told Casanova that when he and Jordan W. began arguing in the
car, Jordan W. “slapped him in the arm, you know, for something he said, and he turned around
and they started fighting.” Strauser told Casanova he had “just gotten a new tattoo on his arm.”
Casanova testified that Jordan W. was “upset” and “crying,” and “had a black eye to the left eye.”
Both Jordan W. and Strauser sought medical attention. Strauser claimed “he was hurt from getting
hit on the arm on his tattoo.” Casanova testified that her investigation led her to conclude Jordan
W. had been “the initial aggressor.” However, Casanova did not arrest Jordan W., “[b]ecause
[Casanova] didn’t believe at the time that a slap on the arm justified [Jordan W.] getting punched
in the face.”
Strauser also testified to what happened on December 11, 2014. According to Strauser,
Jordan W. had been upset because he had not gotten her a birthday present, and they began fighting
as soon as they got into the car. Strauser asked Jordan W., “[W]hy are you going to ruin the night?
I’m taking you out.” Jordan W. then “smacked [him] in the face.” Strauser asked her, “[W]hy are
you doing this?” Strauser testified that he believed “it was the brand new tattoo coloring that she
was mad at and she took her nails and scratched it straight down twice.” Strauser testified, “I don’t
think I’ve felt more pain in my life.” “After she smacked my face, she scratched my arm, [and]
scratched my chest.” Strauser testified that Jordan W. also bit him at some point. He also claimed
Jordan W. had grabbed the wheel of the car: “Actually before she scratched [my arm], she grabbed
at my wheel . . . .” Strauser testified that he could not “put to words exactly what was going on. It
was scary, and [he] knew [he] had to do whatever [he] could to stop it.” Strauser testified, he
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reacted “immediately” because he “didn’t want to die.” While he was driving, he “pushed her off
of [him].” Strauser claimed he “would never try to hurt her.” He just “wanted to stop the fight.”
He testified that he acted in self-defense and that he believed he had to act to protect himself. He
claimed his actions were “necessary.” On cross-examination, Strauser denied having punched
Jordan W. He stated he caused her injuries “[w]ith the palm of [his] hand.” He also admitted that
he is trained in MMA fighting.
In viewing all the evidence in the light most favorable to the verdict, we conclude a rational
jury could reasonably reject Strauser’s claim of self-defense and necessity, and find that he
committed the offense of assault bodily injury family beyond a reasonable doubt. A jury can
choose to believe all, some, or none of the testimony presented by the parties. Baez v. State, 486
S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet. ref’d). Because the jury has the authority to
judge the credibility of witnesses, the “statements of the defendant and his witnesses do not
conclusively prove a claim of self-defense or defense of a third party.” Smith v. State, 355 S.W.3d
138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see also Valverde v. State, 490 S.W.3d
526, 529 (Tex. App.—San Antonio 2016, pet. ref’d) (noting that a “defendant’s testimony does
not conclusively prove a claim of self-defense because the jury [can] reject the testimony”).
Therefore, the jury was free in this case to believe Jordan W.’s version of events and reject
Strauser’s version. As an appellate court, we must “defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be
given their testimony.” Brooks, 323 S.W.3d at 899.
Strauser puts much emphasis on the fact that Jordan W. admitted to having hit him on the
arm first. However, even if a victim starts the altercation, the question remains whether the person
claiming self-defense or necessity used only such force as was necessary. See TEX. PENAL CODE
ANN. § 9.22 (West 2011) (stating that a person’s conduct is justified under the defense of necessity
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if “the actor reasonably believes the conduct is immediately necessary to avoid imminent harm”);
id. § 9.31 (stating that under self-defense, a person is justified in using force against another “when
and to the degree the actor reasonably believes the force is immediately necessary to protect the
actor against the other’s use or attempted use of unlawful force”).
Outcome: We hold the evidence is sufficient to support Strauser’s conviction and therefore affirm the judgment of the trial court.