In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00209-CR
WINFRED WARREN THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law #1
Gregg County, Texas
Trial Court No. 2013-1873
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Winfred Warren Thomas was convicted by a jury of assault causing bodily injury–family
violence. 1 The trial court assessed punishment at 300 days’ confinement in the Gregg County
Jail. On appeal, Thomas contends that the evidence is insufficient to support his conviction.
The evidence shows that a fight took place between Thomas and his wife, Mae Thomas.
Both were injured, and there were no other witnesses. When police arrived, she told them he had
hit her. At trial, she acknowledged that she had not told them that she hit Thomas first, but
pointed out that they had not asked. She also testified that she was using muscle relaxants at the
time and was still upset by his perceived intention to leave their house and drive away in her car.
Thomas raised the defensive theory that his actions were taken in self-defense (which
was included in the jury charge) and argues that the State failed to prove beyond a reasonable
doubt that he did not act in self-defense. Indeed, he argues, the overwhelming weight of the
evidence is that he did act in self-defense, and the only direct evidence elicited at trial shows
exactly that.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light
most favorable to the jury’s verdict to determine whether any rational jury could have found the
essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal
sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–
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Thomas was also tried for interfering with an emergency telephone call, but was acquitted. See TEX. PENAL CODE
ANN. § 42.062 (West Supp. 2013).
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18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks
opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318–19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant was
tried.” Id.; see TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013).
When the sufficiency claim involves self-defense, we must also determine whether any
rational trier of fact could have found against appellant on the self-defense issue beyond a
reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Once a
defendant produces evidence raising the issue of self-defense, the State has the burden of
persuasion (not production) to refute the self-defense claim, which requires only that the State
prove its case beyond a reasonable doubt. Id. at 913; Brecheen v. State, 372 S.W.3d 706, 708
(Tex. App.—Eastland 2012, pet. ref’d); Madrigal v. State, 347 S.W.3d 809, 818 (Tex. App.—
Corpus Christi 2011, pet. ref’d); see TEX. PENAL CODE ANN. § 2.03 (West 2011).
In this case, there is no suggestion that Thomas did not engage in the actions. The only
question is whether he did so while defending himself from the complainant. The evidence on
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that matter is in conflict. The complaining witness (who can hardly be accurately described as
such because at trial she was not complaining) testified that she had initiated the violence and
that Thomas was only responding to and attempting to defend himself from her actions. In so
testifying, she effectively recanted the statements which she made to police at the time of the
altercation. The victim suffered minor injuries to her head, a sprained ankle, and a ruptured
eardrum as a result of the fight with Thomas. There is also evidence that she kicked Thomas in
the abdomen with sufficient force to cause him to pass blood and that she scratched him. Set
against that is testimony that when police responded to a domestic violence call, her story was
entirely different.
As shown by the testimony of the officers and the audio/video recording of the interview
with the victim, at the time, she claimed that Thomas had instigated the violent behavior that
night and that she had not started the fight. At trial, she explained that no one had asked her if
she started the fight.
The evidence in this case is in conflict. The jury is the exclusive judge of the credibility
of witnesses and of the weight to be given their testimony, and reconciliation of conflicts in the
evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000). The jury may choose to believe some testimony and disbelieve other
testimony. Id. This is a classic scenario—were you telling the truth then, or are you telling the
truth now? The jury had the duty of determining which was the true state of affairs and evidently
believed that she was telling the truth at the time of the interview. In that situation, the evidence
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is sufficient to show that Thomas was the instigator of the action and was not hitting her in self-
defense. Accordingly, the evidence is sufficient to support the judgment.
We affirm.
Bailey C. Moseley
Justice
Date Submitted: March 31, 2014
Date Decided: April 25, 2014
Do Not Publish
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