Affirmed and Memorandum Opinion filed June 26, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00192-CR
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TYMOTHIE JOE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 42,708A
M E M O R A N D U M O P I N I O N
In a single issue, appellant, Tymothie Joe Williams, contends the evidence is factually insufficient to support his conviction for two counts of aggravated assault. All dispositive issues are settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
Background
According to the State=s evidence, on the early morning of April 27, 2005, appellant shot Misty Woods and Darius Platt; both sustained non-fatal wounds. At various times, Woods was appellant=s girlfriend. However, at the time of the shooting, they were not dating. Appellant and Woods have two children together. Woods and Platt were acquainted because they lived in the same neighborhood.
Shortly before midnight on April 26, 2005, Platt sat in his car smoking marijuana when Woods and her aunt walked by his house. Platt accompanied them to Woods=s house to smoke more marijuana. After midnight, Woods and Platt were in a bedroom when Woods was shot twice in her abdominal region and Platt was shot once through his left eye. However, trial testimony varied regarding the incident.
Platt testified appellant was present when Platt and Woods arrived at Woods=s house. Appellant and Woods went to a bedroom, where they argued. Appellant then left the house while carrying a pistol. Woods tried to prevent appellant from leaving because he mentioned shooting himself. Platt believed appellant fired the pistol into the air after he left. Eventually, Platt and Woods went to the bedroom. They were seated on the bed smoking marijuana when Platt heard glass break and saw appellant outside the broken bedroom window pane. Platt saw appellant extend his arm into the bedroom through the broken window. Appellant shot Woods and then shot Platt.
In contrast, Woods testified appellant was not present when she and Platt arrived at her house. Therefore, Woods denied that she and appellant argued shortly before the shooting and that she saw appellant brandishing a pistol. Woods testified that she and Platt initially went to the back bedroom. However, according to Woods, she entered the bathroom while Platt sat on the bed. Woods then heard glass breaking. Platt was shot first, and Woods was shot as she ran out of the bathroom. At trial, Woods claimed she could not identify the assailant. She testified a blanket covered the interior of the window and the area outside the window was too dark for a person in the room to see the shooter.
A jury convicted appellant of two counts of aggravated assault. After finding three enhancement paragraphs were true, the jury assessed two concurrent life sentences.
Standard of Review
In a single issue, appellant contends the evidence is factually insufficient to support his convictions for aggravated assault. A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during commission of the assault. See Tex. Pen. Code Ann. '' 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2007). In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict seems clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). While we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury=s determinations. See Marshall, 210 S.W.3d at 625.
Analysis
Appellant=s sole complaint is that the evidence is factually insufficient to prove he was the person who shot Woods and Platt. In particular, appellant contends Platt=s testimony identifying appellant as the assailant lacked credibility in many respects.
First, appellant cites inconsistencies between the testimony of Platt and Woods relative to the following: (1) whether appellant was present when Platt and Woods arrived at the house, argued with Woods, and brandished a gun; (2) the locations of Platt and Woods when the shooting began; (3) which complainant was shot first; and (4) whether the area outside the window was sufficiently lit so that Platt could see appellant.
However, we find no reason to intrude on the jury=s evaluation of witness credibility and its decision to believe Platt. As a whole, Platt=s testimony was consistent. Significantly, he did not waver in identifying appellant as the assailant. In contrast, at trial, Woods claimed she could not recall many facts pertinent to the incident, including the shooter=s identity.
Woods blamed her memory loss on medication she was currently taking and her ingestion of ecstasy, Xanax, cocaine, and marijuana around the time of the shooting. But, Houston police officer Jude Vigil interviewed Woods seven days after the shooting, while she was still hospitalized. According to Officer Vigil=s testimony and an audio recording of the interview, Woods unequivocally identified appellant as the assailant. Specifically, Woods asserted appellant threw a pail through the bedroom window and then shot both complainants. At trial, Woods claimed that her statement was influenced by medications prescribed in the hospital. However, Officer Vigil testified Woods was alert and did not seem intoxicated during the interview. Moreover, because the audio recording was admitted, the jury heard Woods during the interview and could determine that she was lucid when she made her statements. Further, hospital records generated one day after the shooting include the following statement, Ashe was shot by boyfriend . . . she is scared of him.@ Accordingly, the jury reasonably could have determined that Woods=s statement to Officer Vigil and the hospital records not only undermined the credibility of Woods=s subsequent testimony but also constituted evidence of appellant=s guilt.
Additionally, three months before trial, appellant wrote Woods a letter, which was admitted at trial. In the letter, appellant professed his love for Woods and desire to have a future together. He implored her to testify she did not remember facts concerning the shooting. At trial, Woods confirmed she still loved appellant and believed they would reunite. Therefore, the jury could have reasonably concluded that Woods=s unwillingness at trial to identify appellant as the assailant was attributable to the letter. The jury could also have rationally viewed the letter as evidence of appellant=s guilt.
Next, appellant argues Platt=s identification of appellant was contradicted by testimony of a police officer and photographs of the scene. Specifically, Officer Jorge Lucero testified there was no lighting outside the bedroom window. Moreover, photographs confirmed that a blanket covered the interior of the window. Consequently, according to appellant, Platt could not have seen appellant outside the window.
However, appellant ignores the totality of the investigating officers= testimony, which supported Platt=s version. In particular, Officer Christopher Duncan explained there was no indication the assailant shot through the window and blanket. Further, Officer Lucero found spent bullet casings on the bed, which was near the window. Officer Duncan opined that these findings were consistent with a person outside the window moving the blanket and placing the gun inside the room when firing. Officer Duncan testified the bedroom was sufficiently lit for a person inside to see an assailant who was close enough to the window to fire a gun in this manner.
Appellant cites other reasons Platt=s testimony purportedly lacked credibility. For instance, Platt admitted smoking marijuana before the incident. Further, Woods testified Platt was staggering as they walked to her house. In contrast, Platt testified the marijuana had no effect on him. The jury was free to consider Platt=s marijuana usage when evaluating his credibility. Appellant also argues Platt=s testimony was internally inconsistent because he subsequently denied he was a marijuana user. To the contrary, reading this latter testimony in context, Platt denied that smoking marijuana was the only activity in which he engaged.[1]
Appellant also notes Platt agreed on cross-examination he was Ahaving trouble remembering things sometimes.@ However, Platt made this statement when testifying he could not recall the date of his arrest for marijuana possession. The jury was free to evaluate the sufficiency of Platt=s memory regarding details of the shooting.
Finally, appellant contends Platt was the only person who allegedly saw appellant carrying a gun when he left the house shortly before the shooting. As appellant notes, Officer Vigil spoke with two of Woods=s aunts who were in the house during the incident. Like Woods, neither aunt claimed she saw appellant with a gun. But, Officer Vigil also testified one aunt gave conflicting statements on whether appellant was even present before the shooting. Further, the aunts did not testify; thus, the jury had no opportunity to personally evaluate their credibility. Therefore, the jury could have reasonably believed Platt=s testimony regarding appellant=s possession of the gun.
In sum, the evidence that appellant shot both complainants is not so weak that the verdict seems clearly wrong or manifestly unjust, and the verdict is not contrary to the great weight and preponderance of the evidence. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed June 26, 2008.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Specifically, on cross-examination, appellant asked if Platt worked or attended school. After Platt replied that he did Anothing@ but Ahang around,@ the following exchange occurred:
Q. You just smoke weed?
A. No.
Q. You don=t smoke weed?
A. No.