Essie D. Hopkins v. State ( 2015 )

Affirmed and Opinion Filed May 28, 2015.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-14-00146-CR
ESSIE D. HOPKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1355764-U
MEMORANDUM OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Stoddart
A jury convicted Essie D. Hopkins of aggravated robbery. Hopkins pleaded true to
enhancement allegations and the trial court assessed punishment at life imprisonment. Hopkins
raises three issues on appeal, arguing the evidence is insufficient to prove he committed the
offense, the jury charge defined robbery under a different theory than alleged in the indictment,
and the evidence is insufficient to prove the enhancement allegations.
We affirm the trial court’s judgment.
BACKGROUND
Connie Witrago returned home from work on March 3, 2013. As she walked from the
parking lot to her apartment at the back of the complex, a man approached her and grabbed her
purse. She struggled with the man for a while until the purse broke and the man ran away with
it. Witrago chased after him, but the man pulled out a gun and fired it at her. She thought he
was going to kill her, but the bullet missed her. The man fled the scene and Witrago called 911.
Witrago did not get a good look at the man’s face, but noticed he was tall and thin. She did get a
good look at his eyes, which she described as big and yellow. Police found a fired .380 caliber
cartridge casing in the grass near Witrago’s apartment.
Two months after the robbery, Witrago’s son told her the police were arresting a man in
the apartment parking lot. Witrago ran to the parking lot and immediately recognized Hopkins
as the man who robbed her. She thought Hopkins recognized her as well. She told the police
officer she was fairly certain Hopkins was the man who robbed her, but was not 100 percent
certain. Witrago told Detective Angela Nordyke at the police station that she was about 60
percent sure Hopkins was the man who robbed her. She explained at trial, that when she saw
him in the squad car, she was sure it was him when she saw his eyes. Witrago testified she
recognized his expression and the way he looked at her when he was arrested helped her to
identify him as the robber.
Officers Brent Anderson and Edward Van Meter responded to a suspicious person call at
the apartment complex about two months after Witrago was robbed. They talked to Hopkins
because he matched the description of the suspicious person. Anderson noticed the butt of a
handgun “hanging out of his pocket.” The officers found a .22 long rifle caliber handgun and
arrested Hopkins for possession of a firearm. As the officers were leaving with Hopkins,
Witrago ran up and said she thought Hopkins was the man who robbed her. While Van Meter
was talking with Witrago, Hopkins kept looking back and asking Anderson what was happening.
Hopkins appeared to be very nervous about Witrago talking to Van Meter.
After talking to Witrago, Nordyke interviewed Hopkins. The interview was recorded and
portions were played to the jury. About an hour into the interview, Nordyke mentioned that
Witrago had seen Hopkins in the squad car. Hopkins repeatedly denied any involvement in the
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robbery. As part of her interrogation strategy, Nordyke told Hopkins Witrago identified him
because of the teardrop tattoo near his eye and had picked him out of a photo lineup. Nordyke
also claimed to have security camera video footage from the apartment complex showing he was
the robber. Nordyke told Hopkins he left a fired shell casing at the scene with his fingerprint on
it, but she did not tell him the caliber of the shell casing. 1
Hopkins indicated he knew the location of all the cameras at the apartment complex.
Hopkins said Witrago must have been lying because the only cameras were around the pool and
he did not rob anyone by the pool. Then he said, “If you can prove that I done shot a .380 – not,
not, not a .380, a .22, if I done shot a .22 anywhere in those apartments, you can lock me up.”
Nordyke asked Hopkins why he mentioned a .380? Hopkins said, “I meant a .22. . . . I got a
.22. . . . I didn’t get caught with no .380.” Hopkins denied owning a .380, but when Nordyke
again said police found his fingerprints on the .380 shell casing, Hopkins said he did not believe
that his prints were on the casing because when he bought it, he “kept that gun like it was brand
new” and never touched it.
The interview lasted around two hours. Hopkins asked if he could go home several
times. After he mentioned that the gun was a .380, he told Nordyke that his head was not right
and he would probably say “yes” to anything.
Hopkins finally admitted to robbing Witrago. He admitted snatching her purse. He told
Nordyke he bought the .380 on the street and threw the gun in the trash after the robbery because
he knew he “messed up.” Nordyke asked if he could describe Witrago, and he said, “I know
that’s her. I tell you the truth. I know that’s her.” He admitted he took the purse at the back of
the apartments.
1
Nordyke testified there were no fingerprints found on the shell casing because it had been handled by
members of Witrago’s family before police arrived. There was also no security camera recording of the robbery and
Witrago did not identify Hopkins from a photo lineup.
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Nordyke testified she did not tell Hopkins the caliber of the shell casing or that robbery
occurred at the back of the apartments. Hopkins mentioned the .380 shell casing and Nordyke
could tell Hopkins realized he “slipped up.” Hopkins also knew where the robbery occurred
even though Nordyke had not given him that information.
STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence on a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App.
2014). Under this standard, the relevant question is whether, after viewing the evidence in the
light most favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2011) (footnotes omitted).
This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id.
Therefore, in analyzing legal sufficiency, we determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when viewed in
the light most favorable to the verdict. Id. Our review of all of the evidence includes evidence
that was properly and improperly admitted. Id. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict and therefore defer to
that determination. Id. Direct and circumstantial evidence are treated equally: 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. Id. We measure the sufficiency of the
evidence by the elements of the offense as defined by a hypothetically correct jury charge. See
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d
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234, 240 (Tex. Crim. App. 1997)).
As applicable here, a person commits aggravated robbery if he commits robbery and uses
or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). A person
commits robbery if the person, in the course of committing theft and with intent to obtain or
maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury
to another or intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death. Id. § 29.02(a). A person commits theft if he unlawfully appropriates property
with intent to deprive the owner of property; appropriation of property is unlawful if it is without
the owner’s effective consent. Id. § 31.03(a), (b)(1). A firearm is a deadly weapon. Id.
§ 1.07(a)(17)(A).
ANALYSIS
A. Identification
Hopkins contends the evidence identifying him as the robber is insufficient. Specifically,
he contends his confession was false, Witrago could not identify him “100 percent” as the
robber, and there is no physical evidence linking him to the crime.
Hopkins contends his confession was false because he wanted to go home, his head was
not right, and Nordyke lied to him. He does not contend his confession was involuntary, merely
that it was false. His issue challenges the sufficiency of the evidence. In conducting our
sufficiency review, we view the evidence in the light most favorable to the verdict and defer to
the jury’s determinations of credibility and weight of the evidence after drawing reasonable
inferences from the evidence. See Adames, 353 S.W.3d at 860. Here, the jury heard the
recording of the interview, saw Hopkins’s demeanor during the interview, and how the
confession unfolded. They also heard Nordyke’s testimony regarding the interview. A
reasonable fact finder could have believed Hopkins’s incriminating statements in the interview
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were truthful.
Although Witrago stated she was only 60 percent certain of her identification when
Hopkins was arrested, she also testified she immediately recognized him and his facial
expression and shaking his head “no” indicated he recognized her. She testified she “recognized
his eyes, not his face.”
Like any other relevant fact, identity may be proved by direct or circumstantial evidence
and eyewitness identification is not necessary. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.
App. 1986); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d). The State may prove the defendant’s identity and criminal culpability by either direct or
circumstantial evidence, coupled with all reasonable inferences from that evidence. Gardner v.
State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Witrago’s identification testimony was
only one part of the evidence the jury could reasonable consider in drawing its conclusion that
Hopkins was the person who committed the offense. In addition to Witrago’s testimony, there
was Hopkins’s confession, his knowledge of details only the robber would know, his knowledge
of the location of security cameras at the apartments, his knowledge of where the robbery
occurred, and his knowledge of the caliber of the gun used during the robbery.
Hopkins points out that there was no physical evidence such as fingerprints or DNA
connecting him to the robbery. The lack of physical or forensic evidence, however, does not
render the evidence insufficient; the lack of such evidence is simply a factor for the jury to
consider in weighing all the evidence. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston
[1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). Further, in conducting our
sufficiency review, we do not focus on “evidence that was not admitted at trial.” Murray v.
State, No. PD-1230-14, 2015 WL 1743419, at *4 (Tex. Crim. App. April 15, 2015). What is not
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in evidence is irrelevant to a determination of the sufficiency of the evidence. Chambers v. State,
711 S.W.2d 240, 245 (Tex. Crim. App. 1986).
The record supports conflicting inferences, therefore we defer to the jury’s resolution of
those conflicts in favor of the prosecution. See Clayton, 235 S.W.3d at 778. The jury’s
inferences were reasonable based on the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict. See id. Considering all the evidence in the
light most favorable to the verdict, we conclude a rational trier of fact could have found Hopkins
guilty of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353
S.W.3d at 860. We overrule Hopkins’s first issue.
B. Charge Error
In his second issue, Hopkins argues the jury charge defined the offense under a different
theory than alleged in the indictment and caused him egregious harm. The indictment alleged
Hopkins committed aggravated robbery by threatening and placing Witrago in fear of imminent
bodily injury and death and used or exhibited a deadly weapon. The abstract definition of the
offense in the jury charged defined robbery as:
Our law provides that a person commits the offense of robbery if he, in the course
of committing theft, as that term is hereinafter defined, and with intent to obtain
and maintain control of the property of another, intentionally or knowingly or
recklessly causes bodily injury to another.
The application paragraph of the jury charge tracked the language of the indictment:
Now if you find from the evidence beyond a reasonable doubt that on or about the
3rd day of March, 2013, in Dallas County, Texas, the defendant, ESSIE
HOPKINS, then and there intentionally or knowingly, while in the course of
committing theft of property and with intent to obtain or maintain control of said
property, threaten and place CONNIE WITRAGO, hereinafter called
complainant, in fear of imminent bodily injury and death, and the defendant used
and exhibited a deadly weapon, to-wit: a firearm, then you will find the defendant
guilty of the offense of Aggravated Robbery, as charged in the indictment, and so
say by your verdict.
Hopkins did not object to the charge at trial; accordingly, any error in the charge is
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reversible only if Hopkins was egregiously harmed such that he was denied a fair and impartial
trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). Egregious
harm exists when the record shows that a defendant has suffered actual, rather than merely
theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.
2013); Almanza, 686 S.W.2d at 174. Egregious harm consists of error affecting the very basis of
the case, depriving the defendant of a valuable right, or vitally affecting a defensive theory.
Nava, 415 S.W.3d at 298 (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).
We assess the degree of harm in light of the entire jury charge, the state of the evidence as a
whole, taking into account the contested issues and the weight of probative evidence, the
arguments of counsel, and any other relevant information in the record. Id.
Our first inquiry is whether the charge contains an error. Almanza, 686 S.W.2d at 171.
Reviewing the charge as a whole, we conclude the abstract definition of robbery was erroneous
for this case. Hopkins was indicted for committing aggravated robbery by threatening or placing
Witrago in fear of imminent bodily injury or death by using a deadly weapon. The definition of
robbery as occurring when a person causes bodily injury to another while in the course of
committing theft is not applicable to the offense charged in this case.
However, considering the record as a whole and the factors listed in Almanza, we
conclude the error in the charge did not cause Hopkins egregious harm. The charge as a whole
was not confusing. The application paragraph correctly tracked the indictment and focused the
jury’s attention on the essential elements of the offense. See Medina v. State, 7 S.W.3d 633, 640
(Tex. Crim. App. 1999) (“Where the application paragraph correctly instructs the jury, an error
in the abstract instruction is not egregious.”). The application paragraph did not incorporate the
erroneous definition of robbery. Although some defined terms were not referenced later in the
charge, superfluous abstract definitions do not affect the jury’s ability to fairly and accurately
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implement the commands of the application paragraph. See Plata v. State, 926 S.W.2d 300,
302–03 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997).
The error was not particularly harmful in light of the contested issues and the evidence.
The contested issues in the case did not involve whether Hopkins caused bodily injury to
another. The contested issues were the identity of Hopkins as the robber and the truthfulness of
his confession. The evidence and closing arguments focused on these issues. Witrago testified
she struggled with Hopkins when he grabbed her purse and fell to the ground, but there is no
evidence in the record he caused her bodily injury. She testified about her fear when she saw the
gun and thought Hopkins was going to kill her. In closing argument, the State argued about how
terrified Witrago was because someone shot at her.
We conclude the erroneous definition of robbery did not affect the very basis of the case,
deprive Hopkins of a valuable right, or vitally affect a defensive theory. See Nava, 415 S.W.3d
at 298. Accordingly, the error did not result in egregious harm. We overrule Hopkins’s second
issue.
C. Enhancement
In his third issue, Hopkins contends the evidence is insufficient to prove the enhancement
allegations necessary to enhance the range of punishment to that for a habitual offender.
The indictment alleged that prior to commission of the current offense, Hopkins was
finally convicted of the felony offense of aggravated assault on August 29, 2003. The State later
filed a notice of intent to enhance punishment based on another prior conviction alleged to have
occurred before commission of this offense. The notice of enhancement alleged a prior final
conviction for aggravated assault on “the 4th day of January.” Hopkins asserts the evidence is
insufficient to support the enhancement allegations because the state failed to prove the year
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when the conviction alleged in the notice of enhancement occurred.
At the punishment hearing, the State read the enhancement allegations in the indictment
and the notice of enhancement:
[P]rior to the commission of the offense or offenses set out above, the defendant
was finally convicted of the felony offense of aggravated assault with a deadly
weapon in the 195th Judicial District Court in Dallas County, Texas in Cause No.
F03-62924 on the 29th day of August 2003. And prior to the commission of the
aforesaid offense by the said Essie D. Hopkins, to-wit: on the 4th day of January
in the Criminal District court No. 3 of Dallas County, Texas, in Cause No. F09-
55986 on the docket of said court, the said Essie D. Hopkins, under the name of
Essie Hopkins, was duly and legally convicted in said last named court of a
felony, to-wit: aggravated assault with a deadly weapon as charged in the
indictment, upon indictment, and legally pending in said last named court, and of
which said court had jurisdiction. And said conviction was a final conviction and
was a conviction for an offense committed by him, the said Essie Hopkins, prior
to the commission of the offense herein before charged against him as set forth in
the first paragraph hereof.
Appellant’s counsel then entered a plea of “true” to both allegations. Appellant
confirmed he was the same person who was convicted and sent to the penitentiary on the prior
convictions. After some discussion, the trial court clarified by asking appellant, “Are those two
prior felony convictions true or not true?” Appellant responded, “True.”
The indictment and the notice of enhancement alleged sequential final convictions.
Appellant’s plea of true to both enhancement allegations is sufficient evidence to support a
finding on those allegations. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984)
(“[P]leas to enhancement allegations are different from pleas at the guilt-innocence phase of trial
because a plea of ‘true’ does constitute evidence and sufficient proof to support the enhancement
allegations.”) (emphasis in original). By pleading true to the enhancement allegations and the
sequence of the convictions, appellant relieved the State of the burden to prove the prior
convictions. See Roberson, 420 S.W.3d at 838. Nothing in the record indicates this case is
within the exception where the record affirmatively shows that the enhancement itself was
improper. Id. We overrule Hopkins’s third issue.
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CONCLUSION
We conclude the evidence was legally sufficient to support the conviction and the finding
of the enhancement allegations. We also conclude any error in the jury charge did not result in
egregious harm to Hopkins. We affirm the trial court’s judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140146F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ESSIE D. HOPKINS, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-14-00146-CR V. Trial Court Cause No. F-1355764-U.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 28th day of May, 2015.
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