Dudzik v. State

• Decision Date: 26 November 2008
• Docket Number: No. 10-07-00091-CR.,10-07-00091-CR.
• Citation: 276 S.W.3d 554
• Parties: Barry Lee DUDZIK, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

276 S.W.3d 554

Barry Lee DUDZIK, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 10-07-00091-CR.

Court of Appeals of Texas, Waco.

November 26, 2008.

Rehearing Overruled January 27, 2009.

William F. Carter, Bryan, for Appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

A jury found Barry Lee Dudzik guilty of aggravated assault with a deadly weapon and assessed a prison sentence of ten years. In this appeal, Dudzik asserts four issues. We will affirm.

Background

The evidence shows that during a dispute and fight inside the College Station strip club, Silk Stockings, Dudzik stabbed the victim Patrick Henry when he refused to let him into the club because he was underage. Dudzik admitted to threatening, punching, and stabbing the victim, but he claimed it was in self-defense, which the trial court submitted to the jury. All of the parties to the dispute and fight, including Dudzik, testified. Dudzik's version contradicted the inconsistent versions of the other witnesses, including that of the victim, Henry, who had been a bouncer at the club.

Sufficiency of the Evidence to Support Jury's Rejection of Self-Defense Claim

In his first two issues, Dudzik complains that the evidence is legally and factually insufficient to support the jury's decision to reject his claim of self-defense. Specifically, Dudzik complains that the evidence is insufficient to prove that he was not acting in self-defense when he stabbed Henry because Henry's testimony conflicted both with his own prior statement and with that of other witnesses.

Self-defense is justified when a person "reasonably believes" that "force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." TEX. PEN.CODE ANN. § 9.31(a) (Vernon 2003). The use of deadly force is warranted only where "self-defense is justified under Section 9.31, a reasonable person would not have retreated, and when deadly force is reasonably necessary to protect against another's use or attempted use of deadly force." Bumguardner v. State, 963 S.W.2d 171, 173 (Tex.App.-Waco 1998, pet ref'd); see TEX. PEN.CODE ANN. § 9.32(a)(1)-(3) (Vernon 2003).

Standard of Review

Self-defense is a defense, not an affirmative defense, under the Penal Code. TEX. PEN.CODE ANN. §§ 2.03, 2.04, 9.02, 9.31 (Vernon 2003); Saxton v. State, 804 S.W.2d 910, 912 n. 5 (Tex.Crim.App.1991). The defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594-95 (Tex.Crim.App.2003). Once the defendant produces that evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. A determination of guilt by the factfinder implies a finding against the defensive theory. Id. The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive issue. Saxton, 804 S.W.2d at 912 n. 5.

When a defendant challenges the legal sufficiency of the evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993).

In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEXAS L.REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the factfinder's weighing of the evidence and disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17.

When a defendant challenges the factual sufficiency of the rejection of a defense, viewing all of the evidence in a neutral light, we ask whether the State's evidence, taken alone, is too weak to support the verdict and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance. Zuliani, 97 S.W.3d at 594-95. The State meets its burden of persuasion by proving its case beyond a reasonable doubt and thus need not produce evidence directly refuting the evidence of the defense. Id. at 594. If there is a reasonable doubt with respect to the existence of a defense, the accused must be acquitted. TEX. PEN. CODE ANN. § 2.03(d) (Vernon 2003); Winkley v. State, 123 S.W.3d 707, 712 (Tex App.-Austin 2003, no pet.). In other words, the trier of fact must find against the defendant on the defensive issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.

Analysis

At the time of the incident, Matthew Bailey and Dudzik were employed as temporary contractors on a project to build a Sonic Restaurant in Bryan-College Station. That evening, Dudzik suggested that the two go to the Silk Stocking after work. At that time, Bailey was over twenty-one years of age, but Dudzik was not. Before going to the club, Bailey and Dudzik went to several bars where they were both served alcohol. When they arrived at the club, Dustin Summers, the club's manger, was stationed at the podium on the right side of the club's entrance; he was checking identification and taking money. In order to enter the club, a person had to have identification to prove that they were twenty-one years of age. Summers testified that Bailey presented his identification but Dudzik did not. Bailey and Dudzik went outside and when they returned Henry had taken over for Summers at the podium. Bailey tried to convince Henry to allow them to enter and promised him they would not drink. Henry refused them entrance because Dudzik did not have identification showing that he was over twenty-one.

Henry testified that after he informed Dudzik that he could not enter the club without identification Dudzik became agitated and asked "how about I kick or cut your n_____ a_____." In response, Henry unhooked the chain separating the foyer from the rest of the club to escort Dudzik out of the club. There was a chain between the podium at the entrance and the wall, and when a person was allowed to enter the chain was unhooked so that person could enter the club. Henry testified that once he unhooked the chain, Dudzik hit him and then immediately stabbed him in the abdomen and temple. Henry also testified that he was still standing behind the podium when Dudzik stabbed him. When asked why Henry felt it was necessary to come around the podium to unhook the chain, he said "I didn't come around, I wasn't coming around. He came to me. He hit me first." Then he said he might have been in the process of coming around, but that he intended to walk Dudzik out of the club. Henry consistently denied that he left the podium to confront Dudzik because of the use of a racial slur.

Blake Rudolph testified that he followed Dudzik and Bailey into the club on the night of the incident. He remembered that they were having trouble getting into the club and that Henry asked the two to leave because they were underage but they refused. After Rudolph entered the club, he heard Dudzik talking "trash" and using racial slurs and then he saw Henry walk towards Dudzik to escort him out of the club. Rudolph testified that while Henry was initially walking towards Dudzik, something changed that caused Henry to take Dudzik down to the ground. Rudolph was uncertain as to what caused Henry to tackle Dudzik, but at all times Dudzik appeared to be in a rage. After the fight was broken up, Dudzik continued to taunt Henry and yelled "nobody's going to take him to jail" and "that he knows [sic] all the lawyers in town, he'll get out of this." Dudzik then attempted to get in his truck and leave the scene.

Summers testified that he saw Henry and Dudzik begin to wrestle at the entrance of the club. Summers reached in to grab Dudzik to throw him out of the club, but his momentum caused all three of them to fall to the ground. Summers then heard someone yell out that Dudzik had a knife. Summers stated that Dudzik continued to swing at them as he tried to remove him from the club. At that point, Jeremy Savant, a club regular, joined Summers and helped him drag Dudzik outside. After Dudzik was removed, Henry came outside and informed Savant and Summers that he had been stabbed. Savant then ran over to Dudzik and handcuffed him. According to Summers, as Dudzik was attempting to flee he yelled something about a relative being a sheriff. After ...