                                      NO. 12-18-00228-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 STEPHONE LAMAR WIGFALL,                              §       APPEAL FROM THE 241ST
 APPELLANT

 V.                                                   §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                             §       SMITH COUNTY, TEXAS

                                     MEMORANDUM OPINION
          Stephone Lamar Wigfall appeals from his conviction for aggravated assault with a deadly
weapon. In one issue, Appellant contends the evidence is insufficient to support the verdict. We
affirm.


                                              BACKGROUND
          Mackenzie Barton was driving around with her boyfriend, the Appellant. She stopped at a
park to finish her preparations for a job interview. Something Barton said suddenly enraged
Appellant and he hit her with his fist. In the fight that followed, Appellant took a lift gate support
from the back of Barton’s SUV and used it to shatter the windows and crack the windshield. She
told police that Appellant hit her in the back of the head with a metal pole. Police found a
pneumatic lift gate support rod at the scene. Barton told the paramedic assessing her injuries that
she was hit on the head by a piece of metal. At the hospital, she was diagnosed with a concussion.
Shortly after the incident, Barton told a relative that Appellant hit her in the back of the head with
a tire iron. A witness who drove by during the assault testified that she saw Appellant hit Barton
in the head with something “shiny.”
          At trial, 242 days after the assault, Barton testified that she did not recall Appellant hitting
her with a pipe or other metal object. Although she recalled that Appellant took a metal pipe and
broke the windows of her SUV, she maintained that she could not recall Appellant hitting her with
a pipe. Nor could she recall telling other people that Appellant hit her with a pipe. According to
Barton, “I just remember the windows and the metal rod. As far as I know he hadn’t hit me with
it.” She testified that the injury to the back of her head was caused by a bottle.
       Appellant, in his testimony, admitted an assault on Barton that left her with stitches, a
concussion, and a broken nose. But he strenuously denied hitting her with a metal pipe.
       While in jail awaiting trial, Appellant called Barton on multiple occasions asking her to
accuse someone else, or claim to be his wife and refuse to cooperate with prosecutors. Appellant’s
entreaties resulted in Appellant assisting Barton in composing an affidavit of non-prosecution that
accused a supposed friend, “Buster,” of the assault. But at trial, Barton admitted that Appellant
helped her contrive the story in the false affidavit.
       The jury found Appellant “guilty” of aggravated assault with a deadly weapon in that he
“intentionally, knowingly, or recklessly cause[d] bodily injury to Mackenzie Barton by striking
[her] with a metal pipe.” The jury sentenced Appellant to ten years of imprisonment. This
proceeding followed.


                                  SUFFICIENCY OF THE EVIDENCE
       The indictment charged Appellant with intentionally, knowingly, and recklessly causing
bodily injury to Barton by striking her with a metal pipe. The use of the metal pipe was both the
aggravating element as well as the manner and means of the underlying assault. Appellant
contends the evidence is insufficient to show that he used a metal pipe in assaulting Barton.
Standard of Review
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In assessing the legal sufficiency of the
evidence, an appellate court considers all the evidence in the light most favorable to the verdict to
determine whether based on that evidence and reasonable inferences therefrom, a rational juror
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Winfrey v.
State, 323 S.W.3d 875, 878-79 (Tex. Crim. App. 2010). We determine whether the inferences



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necessary to sustain the conviction are reasonable after reviewing “the combined and cumulative
force of all the evidence” – direct or circumstantial – properly or improperly admitted – as “viewed
in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007).
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational.
See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Clayton, 235 S.W.3d at 778. Direct and circumstantial evidence are treated equally.
Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,
and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007). The duty of a reviewing court is to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime charged. See Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Applicable Law
       Section 22.02 of the Texas Penal Code provides, in relevant part, that a person commits an
offense if he commits an assault and in so doing, uses or exhibits a deadly weapon during the
commission of the offense. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019).
       A complainant’s recantation of earlier testimony does not deprive the recanted statement
of its probative value. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see
also Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991); Forrest v. State, 805
S.W.2d 462, 463-64 (Tex. Crim. App. 1991). When a witness recants prior testimony, it is up to
the fact finder to determine whether to believe the original statement or the recantation. Saldana
v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d).
       An attempt to tamper with a witness can be considered as evidence of consciousness of
guilt. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).
Discussion
       At trial, Appellant admitted assaulting Barton but denied striking her with a metal pipe. In
contrast to her statements made after the attack, Barton testified that she did not remember



                                                  3
Appellant hitting her with a pipe. She did not recall telling others that Appellant hit her with a
pipe. Because of the way the indictment was framed, it was necessary for the State to prove a pipe
was used during the attack in order to secure a conviction. Appellant admitted assaulting Barton
but denied using the metal pipe. Therefore, the only issue for the jury was whether Appellant hit
Barton with a metal pipe.
       Appellant insists that the evidence is insufficient to support the conviction, because the
testimony under oath of both the assailant and the victim shows that no metal pipe was used in the
attack. In Appellant’s view, Barton’s testimony deprived her out of court statements of probative
value sufficient to support the verdict.
       Barton’s testimony did not disavow or repudiate her out of court statements made
immediately after the assault. Her failure to remember making them was not a true recantation,
but her testimony presented a conflict in the evidence which was the jury’s province to resolve.
       On the day of the assault, Barton told law enforcement officers, medical personnel, and a
relative that Appellant hit her with a metal pipe. Barton told the paramedic and nurses that
Appellant “hit [her] with a piece of metal in the back of her head.” Her statement to the paramedic
is especially credible because it was made for the purpose of obtaining medical treatment. Barton
told her great-aunt that Appellant “picked an iron, some kind of a tire iron, that was in the back of
the car” and hit her with it. When interviewed by law enforcement officers, Barton said that
Appellant hit her in the head with a metal pole and “the pole should still be in the car.” The police
found a pneumatic lift gate support rod lying in the shattered glass from Barton’s SUV.
       Barton’s statements were consistent, made close to the time of the attack, made before
Appellant’s efforts to induce her to testify falsely, and confirmed by an eyewitness. After hearing
evidence that Appellant convinced Barton to swear to a false affidavit of non-prosecution naming
an imaginary friend as her attacker, the jury had ample cause to find her testimony at trial
incredible. Her testimony did nothing to diminish the probative value of her extra-judicial
statements. Given the record and the jury’s role as judge of the weight and credibility of the
evidence, the jury could reasonably find that Appellant hit Barton with a pipe. See Wilson, 7
S.W.3d at 141; see also Saldana, 287 S.W.3d at 60.
       Viewing the evidence in the light most favorable to the State, we conclude that the jury
was rationally justified in finding, beyond a reasonable doubt, that Appellant intentionally,
knowingly, and recklessly caused bodily injury to Barton by striking her with a metal pipe and



                                                 4
used or exhibited a deadly weapon during commission of the assault. See TEX. PENAL CODE ANN.
§ 22.02(a)(2); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89. Because the evidence is
sufficient to support Appellant’s conviction, we overrule his sole issue.


                                                   DISPOSITION
         The judgment of the trial court is affirmed.


                                                                                BILL BASS
                                                                                 Justice

Opinion delivered September 4, 2019.
Panel consisted of Worthen, C.J., Neeley, J., Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 4, 2019


                                          NO. 12-18-00228-CR


                                STEPHONE LAMAR WIGFALL,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0291-18)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
