                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                    November 4, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40012
                         Summary Calendar



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                         RICHARD WYRICK,

                                                Defendant-Appellant.


          Appeal from the United States District Court
                for the Eastern District of Texas
                        (4:03-CR-194-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Richard Wyrick appeals his conviction of deprivation of rights

under color of law, in violation of 18 U.S.C. § 242. Claiming the

evidence was insufficient to show that he acted “willfully”, he

challenges the testimony of the two eyewitnesses.

     Wyrick moved for judgment of acquittal at the close of the

Government’s case and at the close of his case. Following the

Government’s presenting rebuttal testimony, however, Wyrick did not

renew his motion for judgment of acquittal at the close of all


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
evidence.   Nor        did    he   do    so     in   a     post-judgment    motion.

Consequently, we review his conviction to determine only whether it

resulted in a manifest miscarriage of justice.                   See United States

v. Green, 293 F.3d 886, 895 (5th Cir.), cert. denied, 537 U.S. 965

(2002) (holding where defendant failed to renew his motion for

judgment of acquittal at the close of all evidence, review is for

a manifest miscarriage of justice, which is found if the record is

devoid of evidence pointing to guilt); cf. United States v. Bell,

623 F.2d 1132, 1134 n.2 (5th Cir. 1980).

     The record supports a finding that, while on duty as a police

officer, Wyrick unnecessarily punched James Murray in the face

because Wyrick was angry.               Thus, the record is not devoid of

evidence Wyrick acted in open defiance or in reckless disregard of

Murray’s right to be free from the use of excessive force.                        See

United States v. Brugman, 364 F.3d 613, 616 (5th Cir.), cert.

denied, 125 S. Ct. 212 (2004); United States v. Avants, 367 F.3d

433, 449 (5th Cir. 2004).           Wyrick’s challenges to the eyewitness

testimony   go    to    the    weight    afforded        that   testimony   and   the

credibility of those witnesses.               These matters are “solely within

the province of the jury”, and its determination will not be

reversed on appeal.          See United States v. Sanchez, 961 F.2d 1169,

1173 (5th Cir.), cert. denied, 506 U.S. 918 (1992).

                                                                       AFFIRMED




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