Quinton Womack v. the State of Texas

NO. 12-21-00007-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

QUINTON WOMACK, § APPEAL FROM THE 369TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION
Quinton Womack appeals his conviction for occlusion assault. In two issues, Appellant
challenges the legal and factual sufficiency of the evidence. We reverse and acquit.

BACKGROUND
Appellant was charged with occlusion assault 1 by an indictment alleging that he did

intentionally, knowingly, and recklessly cause bodily injury to Mary Shedd, a person with
whom the defendant had or had had a dating relationship, as described by Section 71.0021(b) of
the Texas Family Code, by intentionally, knowingly, and recklessly impeding the normal
breathing or circulation of the blood of the said Mary Shedd by applying pressure to the throat
or neck of the said Mary Shedd.

Subsequently, he applied to participate in the Cherokee County District Attorney’s Pretrial
Diversion Program. One of the program’s requirements was that Appellant would “provide a
truthful, voluntary statement about the crime.” When he entered the program, Appellant signed a
statement admitting that he “intentionally, knowingly, and recklessly caused bodily injury to Mary

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A third-degree felony, punishable by imprisonment for a term of not more than ten years or less than two
years and a possible fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. §§ 12.34, 22.01(b)(2)(B) (West
Supp. 2021).
Shedd, a person with whom [he] had or had had a dating relationship, as described by Section
71.0021(b) of the Texas Family Code, by hitting Mary Shedd in the chest.”
Later, when Appellant failed to comply with all the program’s requirements, his
participation in the program was terminated. Appellant then pleaded “not guilty” to occlusion
assault, and the matter proceeded to a bench trial. Ultimately, the trial court found Appellant
“guilty” of occlusion assault and assessed his punishment at imprisonment for a term of six years.
This appeal followed.

EVIDENTIARY SUFFICIENCY
In Appellant’s first issue, he argues that the evidence is factually insufficient to support his
conviction. In his second issue, he argues that the evidence is legally insufficient to support his
conviction.
Standard of Review and Applicable Law
The Jackson v. Virginia 2 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. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2686-87; see also Escobedo v. State, 6
S.W.3d 1, 6 (Tex. App.—San Antonio 1999, pet. ref’d). The standard for reviewing a legal
sufficiency challenge is whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see
also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined
in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789;
Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the jury’s credibility
and weight determinations, because the jury is the sole judge of the witnesses’ credibility and the
weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99
S. Ct. at 2789. A “court faced with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the record—that the trier of fact

2
443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).

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resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately 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
is tried.” Id.
A successful legal sufficiency challenge will normally result in rendition of an acquittal by
the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed
2d 642 (1982). When a court of appeals finds the evidence supporting a conviction to be legally
insufficient, the court is not necessarily limited to ordering an acquittal but may instead reform the
judgment to reflect a verdict of guilty on a lesser-included offense—even when no lesser-included
instruction was given at trial. Thornton v. State, 425 S.W.3d 289, 294 (Tex. Crim. App. 2014).
The court may reform the judgment to reflect a verdict of guilty on the lesser-included offense
only if it determines that (1) in convicting the appellant of the greater offense, the jury must
necessarily have found every element necessary to convict him of the lesser-included offense, and
(2) the evidence is sufficient to support a conviction for the lesser-included offense. Id. at 299-
300.
To prove Appellant guilty of occlusion assault as charged in this case, the State was
required to prove that he (1) was or had been in a dating relationship with Shedd, and (2)
intentionally, knowingly, or recklessly impeded Shedd’s normal breathing or blood circulation by
applying pressure to her throat or neck. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B).
Analysis
Appellant argues that the evidence in this case is legally and factually insufficient to
support his conviction because the record contains no evidence that he impeded Shedd’s normal
breathing or blood circulation. Regarding Appellant’s first issue, because the Jackson v. Virginia
legal sufficiency standard is the only sufficiency 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, we decline to conduct a factual

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sufficiency review here. See Brooks, 323 S.W.3d at 895. Accordingly, we overrule Appellant’s
first issue.
Regarding Appellant’s second issue, we agree with him that the record contains no
evidence that he impeded Shedd’s normal breathing or blood circulation. At trial, the State’s
evidence wholly consisted of two unsponsored exhibits and the testimony of Appellant’s pretrial
diversion supervisor. The State’s first exhibit was Appellant’s pretrial diversion application,
including his confession statement. In the statement, Appellant acknowledged hitting Shedd in
the chest, not impeding her breathing or blood circulation. The State’s second exhibit was a
photograph of what appears to be a woman with some bruising on her neck. No witness testified
regarding the identity of the woman or any other facts or circumstances surrounding the
photograph. The photograph, without any such accompanying testimony, does not constitute
evidence that Appellant impeded Shedd’s breathing or blood circulation. The pretrial diversion
supervisor testified only about Appellant’s level of compliance with the pretrial diversion
requirements.
Because the record contains no evidence that Appellant impeded Shedd’s normal breathing
or blood circulation, no rational trier of fact could have found the essential elements of occlusion
assault beyond a reasonable doubt. See TEX. PENAL CODE ANN. §§ 22.01(b)(2)(B). Therefore, we
conclude that the evidence is legally insufficient to support his conviction for occlusion assault.
See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson, 871 S.W.2d at 186.
Accordingly, we sustain Appellant’s second issue. We further conclude that, even if Appellant’s
confession statement is sufficient to support a conviction for bodily injury assault, 3 we must acquit
Appellant rather than reform the judgment to reflect a verdict of guilty for bodily injury assault
because bodily injury assault is not a lesser-included offense of occlusion assault when the
disputed element is the injury. See Thornton, 425 S.W.3d at 294; Ortiz v. State, 623 S.W.3d 904,
805 (Tex. Crim. App. 2021).

DISPOSITION
Having overruled Appellant’s first issue and sustained his second issue, we reverse and
acquit.

A Class A misdemeanor, punishable by confinement for a term not to exceed one year, a fine not to exceed
3

$4,000.00, or both such fine and confinement. See TEX. PENAL CODE ANN. §§ 12.21 (West 2019), 22.01(a) (West
2021).

4
GREG NEELEY
Justice

Opinion delivered February 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 9, 2022

NO. 12-21-00007-CR

QUINTON WOMACK,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 369th District Court
of Cherokee County, Texas (Tr.Ct.No. 19893)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment be reversed and a judgment of acquittal rendered herein in accordance with the
opinion of this Court; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.