### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 326 -CR

M ar vin Wil for d , A ppe lla nt

v. The State of Texas , Appellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT NO. D-1- DC-06 -30 1222 , HO NORAB LE MI CHAEL LY NCH , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y c on vic te d a

pp e llan t Ma

rv in Wi lf or d o f a g g ra

vate d a ssa

ult wi th a de a dly
wea pon. SeeTex. P enal Code Ann. § 22.02(a) (2) (West Supp. 2008). He was sentenc ed to ten y ear s in p ri so n. I n o ne po int

of e rr or , Wil fo rd

con te nd s th a t th e e vid e nc e wa s f a c tua lly ins uf fi c ie nt t o
su pp or t a fi nd ingof

guil t. We a ff

ir m th e dis tr ic t c ourt ’s jud g me nt. Marvin Wilford and Renee Wil liams be g an dating in 2004 and beg an living tog ether in Aug ust 200 5
. A c c o r d in g to Wi ll ia ms ’ s te s ti mo n y , o nth e mo r n in g o f Ap r il 2 8 , 2 0 0 6 , Wi lf

o rd
e nte re d th e ho us e wi th fo od he ha d p ic ke d u p f or Willi ams. Whe n h e e nte re d th e ho us e , Wil liams was lying on the couch a

nd ref used to g et up. Ang ere d, Wil ford beg an y elling a nd hitting the couc h. This prompted Wil liams to stand up. When Williams stood up, Wil ford g rabbe d her, knoc ked her to the g round, straddle d her, put his hands on her neck, and bega n to choke he r. Will iams testified that she wa s unable to bre athe while Wilford choke d her.2 When W ilford eve ntually rele ased he r, Will iams stood up and went upstairs to her room to chang e. She testified that W ilford foll owed her, ripped off her shi rt, and threw her to the g ro un d, c a

us inghe r t o s us ta in a

n in jur y to h e r s ho uld e r. Wilf

or d w e nt do wn sta ir s, a te , r e tur ne d to Wil liams’s room to apolog ize, and left th e h o u s e. Wil liams testified that she stay ed in bed f or the re st of the da

y . Th e ne xt d ay , Ste ph anie B ro wn , Willi ams’ s sis te r, we nt to Williams ’s h ou se to chec k on her. B rown testified that Wi lliams “ co u l d not move” and a ppear ed “a g itated” a

nd “in pain.” L ater

that afte rnoon, Will iams’s mother ar rived a nd called the police. Offic er Ea

rl Whit e, the r esponding office r, ar rived at th e house. A ll three women—B rown, Willi ams, and their mother —wer e standing i n the y ard. Williams was uncooper ative, telling Whit e that her mother and sister had called the police. White testified that he observe d bruising on Williams’s neck a nd that the bruises a

ppear ed to be “ fre sh injuries.” Detec tive Patrick Conno r wa s assi g ned to handle the case . He testified that, when he first c ontacted Williams on May 1, she was unwilling to s peak w ith him, t elling him that she ha d hurt her a

rm and that he r mother ha d contac ted the poli ce . W i l l iams ref used to provide a

ny additional information. L ater , on J une 1, Wil liams called Connor to g ive him her stateme nt, relating
a s t o r y c o n s i s t e n tw i t hh e r

t r i a l t e s t i m o n y. On J une 4, Willi ams also visited the emer g ency room, co mp la iningof hoar seness a nd tender ness in her throat re s u l t i n g from the Apr il 28 incident. Although the a ttending phy sician, Dr. Ronald Kim, noted no obvious bruising or swelling or abnormalities on the CT scan, he testified that Wil liams’s signs a

nd sy mptoms could be consistent with the alleg ed eve nts of April 28.3 A j ur y fo un d Wil fo rd

g ui lt y of a g g ra vate d a ssa

ult , a nd Wilf or d w a s se nte nc e d to ten y ear s in prison. Wi lford appe als, cha lleng ing the fac tual sufficie ncy of the e vidence to support the jur y ’s ve rd ic t. I n a fa ctual-suf

ficienc y revie w, the evide nce is re viewed in a neutra l light. Ro be rts
v . S tate , 220 S.W .3d 521, 524 (Tex. Crim. App. 2007). Evidence is f actua lly insufficient (1) when the e vid e nc e su

pp or tin g the ve rd ic t is so we ak that the ve rd ic t see ms cl e arl y wr on g and manif e stl y unjust; and (2) whe n the supporting evidenc e is outweig hed by the g reat weig ht and pr e po nd e ra

nc e of the c on tr ary

e vid e nc e so a s to re nd e r t he ver dic t c le arl y

wr on g and

manif e stl y unjust. Id. An

a pp e llate c ourt

mus t be a

pp ro pr iate ly

de fe re nti a l to the jur

y ’s ve rd ic t, i n o rd e r t o avoid s ubstitut ing its own j udg ment for that of the fa ct finder
. Va sq ue

z v . S tate , 67 S.W .3d 229, 236 (Tex. Crim. App. 2002). We may not re- weig h the evidence and substitut e our judgment for that of the fa ct finder
. Kin g v . S tate , 29 S.W .3d 556, 562 (Tex. Crim. App. 2000). Th e jur y fo un d, a s a lle g e d in

the ind ic tme nt, that Wilf or d “ int e nti on a lly , k

no wi ng ly and recklessly cause [d] bodily injury to Renee Williams,” with whom he had a dating r elationship, by using his hand a s a dea dly wea pon to choke Williams. W ilford ar g ues that the e vidence was fa c tua lly ins uf fi c ie nt t o s up po rt

thi s fi nd in g. I n r e vie wi ngthe su ff ic ie nc y of the e vid e nc e on

thi s po int , w e mus t c on sid e r a ll o f t he ev iden c e to d e te rm ine wh e the r t he su pp or tin g e vid e nc e is outweig hed by

the g reat weig ht and pre pondera nce of the contra

ry ev i d ence so as to re nder the verdic t clear ly

wrongand manife stly

unjust. Ro be rts , 2 2 0 S. W. 3 d at 524. I n r e sp on se , th e State points to evidenc e of two injuries Wil liams a lleg edly sustained from the assault: an in j u ry t o t he shoulder and an inj ury to the neck. The S tate presented e vidence from witnesses pr esent on the da y4

of the a lleg ed assault, April 28, and on the following day , including Williams’s testimony , testimony fr om t he re sp on din g of

fi c e r, and te sti mony

fr om Wi lli ams’ s r e lativ e s. Earl White, a senior patrol office r wit h the Aust in Poli ce D epar tment who responde d to the incident, test ified that Will iams was uncoope rative. A ccor ding to White, Wil liams refuse d to discuss the incident wit h him, telling him that her mother and sister ha d called police . Howeve r, Whit e testified that Will iams had injuries ar ound her f ace or nec k are a and that they looked “f resh.” Two of Williams’s relatives—her sister and he r mother— we re al so prese nt at the
scene on April 29. Br own testified that, on April 29, 2006, she visited Wil liams’s residenc e, noting that Wil liams a

nd Wil ford wer e living toge ther at the time. Acc ording to B rown, she found her sister in bed. Will iams “could not m ove” and appeare d “ag itated” and “in pain.” Her neck w as bruised, and the injury

appea red to have been sustained recently
. When the sisters’ mother a rrived, B rown and their mother

called 911. Willi ams a lso te sti fied. Acco rd ingto h e r, Wilf or d h a d mo ve d in

wi th h e r i n Au g us t 20 05 . O n th e mor nin g of Ap ri l 28 , 2 00 6, Wilf

or d e nte re d th e ho us e wi th f oo d. Willi ams was ly in g o nth e c o u c ha t t h e ti me , an d

w h e ns h e r e f

u s e d to g e t u p to lo o k a t t h e f o o d , Wi lf o rd becam e ang ry , “cur sing [her] out” and “ hitting on the couc h.” At that point, Wil liams got up. Wil ford stra ddled her, pushed her to the g round, put his hands on her ne ck, and sta rted c hoking he r. Wil liams testified that she was una ble to breathe. When Wil ford finally rele ased he r, Will iams went upstairs t o change . Acc ording to Wi lliams, W ilford tore he r shirt off of her a nd threw he r on the g round, injuring her shoulder
.5 I n s u p p o rt of his argument, Wil ford points to an inconsistency in Wi lliams’s testimony
. The photos taken af ter the inc ident show a sca r or sc ratc h on Wil liams’s left shoulder, the injury she alleg edly

sustained when Williams t h re w her down on the g round. On dire ct
e xami na tio n, ho we ve r, Willi ams i nd ic a te d th a t he r r ig ht s ho uld e r h a d b e e n in jur e d, no t he r l e ft
. When, on cross examination, Willi ams appea red unable to r emember

which shoulder ha d sustained the in j ury , she explained that she had sustaine d the injury more than a

y ear ear lier and c ould no longe r immediately

reme mber whic h shoulder had be en injured. Wil ford a lso points t o phy sical evide n c e f r o m D r . K im
. Although the alleg ed incident
occu rr ed on April 28, Dr. Kim’s examination of W illiams was on J une 4, over a month later. Acc ording to Dr. Kim, Wil liams was complaining of linge ring hoarse ness and pain in swallowing resulting from the incide nt. Dr. Kim’s exam, including a CT scan, indicated no obvious bruising or swelli n g o r an y o b v io u s s ign s o f s tr an g u lati o n . T h e o n ly s y mp to ms p r e s e n t a t th a t time w ere tender ness in the nec k are a and hoa rsene ss. Dr. Kim testified, howe ver, that the observe d signs a nd sy mptoms—or lack there of—could be consistent with a st ra n gu l at i on that occur red more than a month earlier
. Wil ford a lso que stions W illiams’s credibility . He a rgues that, althoug h the alleg ed incident occ urre d on April 28, Wil liams did not report it until J une 1. He also points out that when Willi ams d id f

ina lly c ome fo rw a

rd , it wa s the mor

nin g a ft e r Willi ams ha d a

c on fr on tatio n w ithhim and exhibited ag g ressive behavior toward Wil ford’ s new g irlfriend—sug g esting Wil liams may have had a motive to fa

bricate the story . Also, Wil ford argues that, althoug h Wil liams te stified that she
was a fra id of him, her ac tions indi cate otherwise. H e points to t estimony that on the day

befor e6

Wil liams reporte d the April 28 incident, she ha d voluntarily approa ched a

nd spoken with Wil ford without e x hibiting any fea r of him. The jury also hear d expert testimony , howeve r, that victims of domestic violence commonly do not come for

war d immediately . I n addit ion, the jury hear d testimony that there had bee n a subseque nt choking incident on May 26, which could a lso have be en the imp e tus fo r Wi lli ams t o r e po rt the Ap ri l 28 inc ide nt. There is evidence that Wil liams w as t h e victim of ag g ravated assault on Apr il 28. Al tho ug h Wil fo rd

po int s to so me e vid e nc e that c ou ld a llo w a fa c t f ind e r t o c on c lud e oth e rw ise , it is not such that it renders the jury ’s ver dict clea rly wrongand manife stly

unjust. See id. at 524. The de c isi on s a s to wh ic h of a numbe r of re a so na ble int e rp re tatio ns to g ive c on fl ic tin g te sti mony a s w e ll as how much w eig ht to give e ach w itness’s testimony wer e the jury ’s. J

oh ns on v . S

tate , 23 S.W .3d 1, 8 (Tex. Crim. App. 2000). As we may neither substitute ou r own judg ment for that of the fa ct finder nor re- weig h the evidenc e, we conclude that the evidenc e is fac tually sufficie nt to support the jury ’s ver dict. See King , 2 9 S. W.3 d at 56 2; Vasquez , 67 S.W .3d at 236.

Wil ford’ s point of error

is overrule d, and the judg ment of convic tion is affirmed.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop Affir med Filed: August 29, 2008 Do No t Pu

bli sh