11th Court of Appeals
Eastland, Texas
Opinion
Gary Keith Williams a/k/a Gary K. Williams
Appellant
Vs. No. 11-03-00142-CR – Appeal from Collin County
State of Texas
Appellee
The jury convicted Gary Keith Williams a/k/a Gary K. Williams of aggravated assault. The trial court found the enhancement paragraphs to be true and assessed appellant’s punishment at 28 years confinement. We affirm.
In his second point of error, appellant contends that the evidence is factually insufficient to support his conviction. In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). We review the fact finder’s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury’s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder’s determination “only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Johnson v. State, supra at 9.
The victim, appellant’s wife of 28 years, testified at trial that, when she returned home on April 19, 2002, appellant and their youngest daughter, Kim, had been arguing. Appellant went to take a shower, and the victim took their granddaughter outside. The victim heard yelling from inside the house. The victim saw appellant’s mother, who lived next door, coming to the house. The victim testified that Kim came outside to call the police. When the victim went into the house, she saw their oldest daughter “slouched” on the couch and appellant and their son “facing off.” The victim grabbed appellant’s arm to prevent him from hitting their 16-year-old son. Appellant’s mother restrained appellant to control him. Appellant and his mother left the house. The police arrived, talked to the parties, and left without making any arrests.
The victim testified that she went to appellant’s mother’s house to talk to appellant. Appellant and the victim began arguing, and appellant’s mother asked them to go inside so the neighbors would not hear the argument. The victim testified that appellant backed her into the kitchen and up against the refrigerator. She stated that appellant hit her in the arm and in the breast with his fist and that she started to scream. Appellant then put his hands around her throat and began to choke her. Appellant retrieved a butcher knife which he held to the victim’s throat. Appellant told the victim that he would “slit [her] throat, and he would go get messed up and not give it another thought.” Appellant’s mother walked in and instructed appellant to put down the knife. Appellant told the victim that “[his] mama saved [the victim] this time.” Appellant then left, but the victim stayed at his mother’s house.
The victim later left appellant’s mother’s house and stayed with a friend. After a couple of days, she went to talk to Deleon Wright, appellant’s parole officer, about the incident. Christine Templin took pictures of the victim’s injuries while the victim was at Wright’s office. After meeting with Wright, the victim called the police. The victim later filed three affidavits of nonprosecution. The victim admitted that appellant helped her with the wording of the first affidavit and that he wrote the third affidavit himself and instructed the victim to sign it. The victim testified at trial that she did not want appellant to get in trouble.
Appellant specifically argues that the evidence is factually insufficient to prove that appellant threatened the victim with a knife. The victim testified that appellant put a butcher knife to her throat and told her that he would slit her throat and not give it another thought. After appellant’s mother came into the kitchen and told appellant to put the knife down, appellant told the victim that his mother had saved her that time. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App.2000), cert. den’d, 532 U.S. 944 (2001). Viewing all of the evidence, we do not find that the verdict is so contrary to the overwhelming weight of evidence as to be clearly wrong and manifestly unjust. Clewis v. State, supra. Appellant’s second point of error is overruled.
In his first point of error, appellant contends that the trial court erred in admitting the expert testimony of Jan Langbein, Executive Director of the Genesis Women’s Shelter. Langbein testified outside the presence of the jury detailing her qualifications as an expert and giving the substance of her testimony. Appellant objected that the testimony was not relevant. The trial court sustained the objection in part and overruled it in part. The trial court then gave very specific instructions concerning Langbein’s testimony. The trial court instructed Langbein that she could testify as to why victims in general change their minds concerning prosecution of domestic abuse. The trial court stated that Langbein could discuss as reasons for not prosecuting abusers: concern over whether the court could protect the victim, the shame involved, and cultural reasons. The trial court specifically instructed Langbein not to give any implication that there had been previous episodes of domestic abuse involving appellant and the victim because the record did not support such testimony. In her testimony before the jury, Langbein stated that it was common for victims of domestic abuse to change their minds about prosecuting the abuser. She stated that a victim will typically change her mind because “she hopes that it will just go away” and because she has been “coerced to change her mind.” Langbein stated that she had not spoken to the victim or reviewed any police reports concerning the altercation.
Evidence is relevant if it has any “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” TEX.R.EVID. 401. An expert witness may testify when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” TEX.R.EVID. 702. The jury heard evidence that the victim initially contacted the police about the assault and then later filed three affidavits of nonprosecution. The jury also heard evidence that appellant discussed the affidavits of nonprosecution with the victim and wrote one of the affidavits himself. Langbein’s testimony was relevant to help the jury understand the victim’s actions. Because the trial court carefully limited Langbein’s testimony, the probative value of the testimony was not outweighed by the danger of unfair prejudice. TEX.R.EVID. 403. The trial court did not abuse its discretion in admitting Langbein’s testimony. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Cr.App.2000). Appellant’s first point of error is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
June 24, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.