Miguel Dwayne Hobdy v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00342-CR
No. 02-18-00343-CR
No. 02-18-00344-CR
No. 02-18-00345-CR
No. 02-18-00346-CR
No. 02-18-00347-CR
___________________________
MIGUEL DWAYNE HOBDY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court Nos. 1496357D, 1496501D, 1496502D, 1496597D, 1496599D, 1496603D
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Miquel Dwayne Hobdy appeals his1 six convictions for aggravated
robbery with a deadly weapon (a firearm) stemming from five robberies committed in
Arlington and Fort Worth on February 13 and 14, 2017. In one issue, Hobdy argues
that the evidence is insufficient to support his convictions. Specifically, Hobdy argues
that the evidence is insufficient to establish that he was the perpetrator of the
robberies. Because we hold that there is sufficient evidence to support the jury’s
determination that Hobdy was the perpetrator, we will affirm.
II. BACKGROUND
After obtaining an arrest warrant for Hobdy, Fort Worth police located Hobdy
in Louisiana. He was then extradited back to Fort Worth where the State charged
Hobdy with six counts of aggravated robbery with a deadly weapon.
At trial, Brenda Velasquez testified that she was working as a sales associate for
MetroPCS on the evening of February 13, 2017. As she assisted a customer, a person
with “a purple wig [wearing] bright colors” came into the store. Velasquez said that
the person was looking around the store nervously, clenching his jacket tightly “as if it
was cold.” After the customer that Velasquez was assisting left, the person in the
1
At trial, Hobdy testified that he considers himself to be a “transgendered
female.” In his brief, Hobdy states that he prefers to be referred to through the use
of female pronouns, although many of the witnesses at trial referred to the perpetrator
as a man dressed like a woman. In the opinion, we will use the generic pronouns
“he,” “him,” “himself,” and “his” to avoid confusion.
2
“purple wig” came to the counter and asked to purchase a phone charger. As
Velasquez reached for a charger, she noticed that the person “pulled out [a] gun from
underneath his armpit.” As the robber held the gun close to himself while pointing it
at Velasquez, the robber said, “Give me the money.” In shock by what was
happening, Velasquez said that she initially did nothing. The robber then said to her,
“Give me the money, or I’ll shoot you.” Velasquez said that she then opened the
register and handed the robber the money. Because Velasquez had counted the
store’s money and deposited it in the safe a few minutes earlier, she gave less than $60
to the robber.
From there, the robber motioned with his gun for Velasquez to move to the
back of the store as he said, “Walk to the back.” As the two proceeded back, the
robber noticed a bank bag with cash in it. As he gathered the cash with one hand, he
pointed the gun toward Velasquez with the other and told her not to move or he
would shoot her. The robber then threatened Velasquez again and told her not to
open the door to the back as he slammed it shut and left. After observing the robber
leave the store via video monitors, Velasquez found her cellphone and called 911.
The State introduced and published for the jury audio of Velasquez’s 911 call.
In the call, Velasquez described how she had just been robbed by a “guy [who] had a
gun, wearing a purple wig, purple leggings, [and] purple lipstick.” Velasquez also said,
“He was dressed like a girl.” Velasquez went on to describe the robber as a black
male, who was roughly six feet tall, had a mustache, and had “some kind of tattoo on
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his neck.” Later in the call, Velasquez described the tattoo as being on “both sides”
of the robber’s neck, but she also said that she could not make out what the tattoo
was because the wig the robber was wearing covered it.
During Velasquez’s testimony, the State introduced and published for the jury
video captured from the in-store cameras that night. At the beginning of the video, a
person who appears to be a black male, wearing a black and purple wig, leggings, and
purple to pink lipstick, entered the store. Through the reflection in the window, the
man can be seen walking around as Velasquez assists another customer. A few
minutes later and as another customer entered the store, the robber jogged toward the
store’s door and then swiftly jogged away once he got outside. The State also
replayed a portion of the video for the jury in which the robber can be seen coming
into the store and looking almost directly toward the camera.
Velasquez said that as police investigated the robbery, she was asked to view a
photo lineup. According to Velasquez, she identified the person who robbed the
store from the photo lineup. After re-identifying the photo of Hobdy she had chosen
from the lineup, Velasquez also identified Hobdy in court as the person who robbed
the MetroPCS on February 13, 2017.
On cross-examination, Velasquez testified that when she initially saw the photo
lineup, she wrote a comment on the front page of the photo packet that she was
“almost sure [that] this is the person. Same eye look, same lips, same thing on the
4
right side, like a scar.” Velasquez testified that she picked Hobdy from the photo
lineup three days after the robbery and while her memory was still fresh.
The defense introduced and published for the jury a recording of Velasquez’s
interview with police. In the interview, Velasquez described the robbery. She also
described the robber as having spoken in a deep, manly voice. Velasquez told the
interviewing officers that the robber had tattoos on both sides of his neck but that the
tattoos were hard to see because of the robber’s wig and hoodie. She further
described the robber as having a slight mustache and some type of “mole or scar” on
his right cheek. She also said that the robber had dark skin, but “not dark, dark skin.”
While Velasquez was reviewing the photo array, she stated that one of the pictures
“may” be the robber. She then asked to see two of the pictures side by side and then
each of the pictures individually again. Eventually, Velasquez settled on a photograph
and stated, “This could be him.” One of the officers then asked, “So this could be
him?” Velasquez replied that she was getting “goosebumps” looking at the
photograph. She then said that although she was not 100% sure that it was the
robber, the person in the photograph looked a lot like the robber “in the lips” and
“on the right side,” referring to the mole or scar on the person’s face in the
photograph. A little later in the recording, Velasquez told another officer that what
really drew her to the photograph that she chose were the lips because she had
focused on the robber’s lipstick and lips while being robbed. She also told the second
officer that when she saw the picture, she got scared.
5
After the recording was played for the jury, defense counsel asked Velasquez
how many times she had said that she was not sure that the person in the photograph
was the robber, to which Velazquez replied, “A lot.” On re-direct, Velasquez
admitted that she was five feet and one inch tall, and although she had reported that
the robber was six feet tall, she testified that the robber was “taller” than her. While
Velasquez was still on the stand, the State asked the trial court to take judicial notice
of any tattoos that Hobdy had on his neck. The trial court took notice that Hobdy
had tattoos on the back of his neck, not on the sides of his neck, and one on the back
of his right hand. The State then had Velasquez use a laser pointer to indicate what
stood out about the picture from the rest of the photographs in the array, and
Velasquez pointed to Hobdy’s eyes and lips, as well as the mark on his right cheek.
Charles Friend testified that he was working at GameStop on February 14,
2017, when he encountered who he initially thought was a female customer because
the person was wearing a purple and black wig, had either bright pink or purple
lipstick on, and wore tight-fitting leggings. Friend said that he quickly realized that
the person was male because of the size of his feet. Friend approached the customer
and asked if he needed assistance, but according to Friend, the customer acted as
though he did not want to interact. Friend also thought that the person was acting
“defensive about the way [the person was] clenching [his] jacket closed.” Bothered by
the customer’s conduct, Friend went behind the counter and pressed the store’s
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security button, which notified the store’s security company to actively monitor the
store through the in-store cameras.
According to Friend, at about the same time he pressed the security button, the
customer walked up to the counter, drew a handgun from beneath his jacket, and
demanded the money from the cash registers and safe. From there, Friend and his
coworker went about emptying all cash from the store’s three cash registers and
placing the cash in a store bag. Friend told the robber that he had entered the code
into the safe but that it would not open until a ten-minute safety period had elapsed.
While waiting for the safe to open, the store’s security company asked over the
intercom whether everything was okay, to which Friend and his co-worker said that it
was. Seemingly bothered by the intercom announcement, the robber took the bag of
money and left without waiting for the safe to open.
During Friend’s testimony, the State introduced and published for the jury
video of different angles of GameStop captured during the robbery. Using a laser
pointer as he testified, Friend described the events on the video as they unfolded.
The video corroborated much of Friend’s testimony. The State also introduced and
published for the jury audio of the store’s security company’s 911 call made just after
the robbery. In the call, the person reporting the robbery described the robber as a
black male dressed as a female wearing a black wig and printed leggings. The caller
also reported that the robber had used a handgun during the robbery.
7
Three weeks after the robbery, officers asked Friend to view a photo lineup.
He was unable to identify the robber from the lineup.
Jose Lazalde, Friend’s coworker, testified that he also was working at
GameStop the night of the robbery. According to Lazalde, as he was assisting a
customer near closing time, he noticed a man come in wearing “bright purple lipstick,
[a] purple wig[, and] really tight leggings.” By Lazalde’s account, after he finished
assisting the customer and the customer exited the store, he turned around to begin
cleaning up the store and saw the robber “showing a gun” to Friend. From there, the
robber told both Lazalde and Friend that he had a gun, that it was loaded, and that he
wanted all the money from the registers. Lazalde said that rather than pointing the
gun directly at him, the robber kept “kind of hiding it . . . with his vinyl jacket, but it
[remained] in his hand.” Similar to Friend’s testimony, Lazalde stated that he and
Friend placed the money from the registers into a bag. Lazalde said that after he and
Friend finished emptying out the registers, the robber said that he wanted the money
from the safe. Because Friend was the only one who could enter the proper code to
open the safe, Friend did so but only after explaining to the robber that the safe
would not open for several minutes. Shortly after that, Lazalde said that the security
company spoke over the store’s intercom, checking on him and Friend. Lazalde said
that as soon as he and Friend said that they were okay, the robber walked out of the
store. Lazalde confirmed that several days after the robbery, police asked him to pick
the robber from a photo lineup. According to Lazalde, even though he was not 100%
8
sure at the time he made his selection, he picked someone other than Hobdy out of
the photo lineup.
Melina Ramos testified that she was working at a Cato department store located
on South Fielder Road in Arlington on February 13, 2017, when she went to check on
a coworker at the register who had called for her assistance. When she got to the
register, Ramos saw a “guy dressed up as a female who pointed a gun at [her and her
coworker] and asked for the money.” Ramos described the robber as “wearing a
jacket, a black and purple wig, pink lipstick, [a] crop top, and some leggings.” Ramos
said that the gun the robber used was a “silver and black . . . handgun.” From there,
Ramos said that she emptied both cash registers, put the money in a bag, and gave the
bag to the robber. Ramos averred that after she informed the robber that the store’s
safe was empty, the robber ordered her and her coworker into a back room.
According to Ramos, although the robber originally began to follow them to the back
room, once they turned around, he was gone. While Ramos was on the stand, the
State introduced and published for the jury video from the store’s surveillance camera.
Using a laser pointer, Ramos explained to the jury what they were watching on the
video, which corroborated Ramos’s testimony. In the video, the robber was wearing
dark-colored pants.
Ramos said that a few minutes after the robber directed her and her coworker
to the back room, she called 911. The State introduced and published for the jury an
audio recording of Ramos’s 911 call. In the call, Ramos described the robber as a
9
black male who was dressed like a woman wearing a black and purple wig and pink
lipstick. She also described the robber as being six feet tall, very thin, and between
twenty and thirty years old. Ramos said that the “handgun” the robber wielded was
“gray and black.” Also in the audio, Ramos told the operator that the robber was
wearing white pants. After the audio played for the jury, Ramos continued to testify.
Specifically, Ramos said that she had gotten the color of the robber’s pants wrong in
her 911 call because she was focused on the “top half” of the robber. A few days
after the robbery, police asked Ramos to come to the police department to view a
photo lineup. Ramos said that although she selected one of the people from the
lineup, she had written that she did not know for sure if the person was the robber,
“but he looked very similar.” The photograph that she chose was of someone other
than Hobdy.
Zane Fleming Phelps testified that she was also working at the Fielder Road
Cato on the day the store was robbed. Phelps described the robber as a “dark-
skinned” man who was “dressed like a female.” Phelps said that the robber was
wearing leggings and had on purple lipstick. According to Phelps, after the robber
approached her at the register, he pulled out a gun and said, “Give me all the money
in the register.” Phelps said that she explained to the robber that she did not have the
clearance to open the register, so she called Ramos from the back room to assist. The
rest of Phelps’s testimony about the robbery matched Ramos’s testimony. Phelps also
said that a short time after the robbery, detectives showed her a photo lineup, but she
10
was not able to recognize anyone. Phelps stated that the trauma of the robbery
caused her to quit work the next day.
Arlington Police Department Officer Josh Altimus testified that he responded
to 911’s dispatch after Ramos called. By Altimus’s account, the dispatch he received
said that a black male wearing a purple wig and pink lipstick had just robbed the
Fielder Road Cato at gunpoint. Upon arriving at the store and after speaking with
Ramos and Phelps, Atlimus wrote in his report that the suspect was a black male with
facial hair who was wearing flip-flops; multicolored, tight spandex pants; a purple
crop-top shirt; a black hoodie with fur lining; and a black and purple wig. He also
wrote in his report that Ramos and Phelps described the robber as approximately five
feet and seven inches to five feet and ten inches tall, weighing between 130 and 150
pounds.
Allyson Salazar, who was working at a different Cato located on Little Road in
Arlington on February 13, 2017, testified that she saw a man come into her store that
night who was “oddly dressed.” Specifically, Salazar said that the man “had girl[s]
clothes on[;] a black jacket[; a] white shirt[;] purple, white, and black tights[; and] flip-
flops.” She also said that the man was wearing purple lipstick. By Salazar’s account,
she met the man at the register and then the man pulled out a gun, laid it on the
counter, and said, “Open the register and [sic] the money in the safe.” Salazar said
that she put the money from both of her registers into a Cato bag and handed it to
the robber. According to Salazar, neither her coworker nor any of the customers in
11
the store realized what had happened until after the robber was gone. Salazar called
911.
The State introduced and published for the jury Salazar’s 911 call. In the call,
Salazar told the 911 operator that her store had just been robbed and that the robber
was a black male dressed like a woman wearing a purple and black wig; pink or purple
lipstick; flip-flops; a black jacket; and purple, black, and blue tights. Salazar also
described the robber as being roughly five feet and nine inches tall with a thin build,
possibly weighing between 130 and 140 pounds, and appearing to be in his late
twenties. Salazar also said that the robber had a little facial hair. She described the
weapon the robber used as being a black and silver handgun.
Salazar admitted that she was unable to pick the robber out of a photo lineup
that the police had showed her. She also said that she ended up quitting her job at
Cato because the experience was traumatic. On cross-examination, Salazar testified
that the robber was “very, very dark” and that the robber spoke in a quiet, low voice.
Officer Randy Collins of the Arlington Police Department testified that he
responded to dispatch regarding Salazar’s 911 call. Collins said that as he interviewed
Salazar about the robbery, she clarified that the robber was wearing purple lipstick,
not pink. He also stated that while he was on scene investigating, he heard about the
robbery at the Fielder Road Cato and how that robbery involved someone that
matched the description Salazar had reported.
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Officer John Martin with the Fort Worth Police Department testified that he
was working for the Saginaw Police Department on February 14, 2017, when he
responded to a robbery call at a 7-Eleven. According to Martin, dispatch described
the robber as a male dressed as a female. The dispatch also indicated that the robber
had left the 7-Eleven in a black BMW. After arriving on scene, Martin spoke with the
cashier, Edward Jefferson. Martin averred that either he or his partner wrote in the
report that Jefferson described the robber as a black male dressed like a woman with a
handgun who was roughly six feet tall wearing a black and purple wig, a black jacket,
purple lipstick, and floral pants.
Jefferson also testified about the 7-Eleven robbery. Jefferson said that he was
working as a cashier and stocker the night of February 14, 2017, when a man “dressed
up as a female” came into the store wearing a black jacket, a wig, makeup, a woman’s
blouse, and multi-colored pants. He further described the wig as being black with
“purplish like highlights in it.” Jefferson also said that the robber was wearing pink or
purple lipstick. By Jefferson’s account, the robber came into the store acting
“fidgety” and asked to purchase a package of cigars. When Jefferson went to ring up
the cigars, the robber pulled out a handgun and demanded the money from the
register. Jefferson complied and then the robber asked about the store’s safe. When
another employee informed the robber that employees did not have access to the safe,
the robber demanded the money from a second register. According to Jefferson, after
13
he handed the robber a bag containing the money from both registers, the robber left
the store, and Jefferson called 911.
While Jefferson was on the stand, the State introduced and published for the
jury a recording of Jefferson’s 911 call. In the call, Jefferson described how an armed
black male “dressed up like a woman” had robbed the store. Jefferson described the
robber’s clothing as being a black jacket; a colorful blouse; and colorful, purple-like
pants. He also reported that the robber was wearing purple makeup. During the call,
Jefferson also said that there was a black BMW waiting outside while the robbery
occurred, but he did not see the robber get into the car. Jefferson did state, however,
that he believed the robber was associated with the vehicle because it left just as the
robber did.
As Jefferson continued to testify, the State introduced and published to the jury
pictures from the inside of the 7-Eleven. The State then had Jefferson describe the
robbery using the pictures and a laser pointer as had Velasquez, Friend, and Ramos.
The State also introduced and published to the jury a video taken from the store’s
surveillance camera showing the robbery as it occurred. As the video played for the
jury, the State asked questions of Jefferson designed to allow him to narrate what was
occurring in the video.
The day after the robbery, Jefferson picked Hobdy’s photograph from a photo
lineup as being the robber. Jefferson also identified Hobdy in open court as the
person that he chose from the lineup and as the person who robbed the 7-Eleven.
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Detective Bryan Kline from the Arlington Police Department testified that he
led the investigation into the two Cato robberies. Kline said that after watching the
surveillance video from one of the Cato stores, reviewing witnesses’ statements, and
listening to the 911 calls, he determined that he was looking for a twenty- to twenty-
eight-year-old black male who was roughly five feet and nine inches tall and weighed
about 130 pounds. He also said that the suspect had a thin build, possessed some
slight facial hair, and used a silver handgun to commit the robberies. Kline further
stated that all witnesses reported that the suspect was a male dressed as a woman
wearing a black and purple wig, colorful lipstick, black and purple tights, and flip-
flops. According to Kline, he did not initially have a suspect’s name, so he published
a bulletin to other police departments containing the suspect’s description as well as a
screen shot of the robber from one of the surveillance videos. After publishing the
bulletin, a Fort Worth police officer contacted Kline and gave him Hobdy’s name as a
suspect related to the GameStop and 7-Eleven robberies. Kline averred that after
conferring with another officer in his department regarding what that officer learned
of the robberies, he decided to seek an arrest warrant for Hobdy.
Detective Harold Cussnick of the Fort Worth Police Department testified that
he investigated the robberies of the 7-Eleven and GameStop that occurred on
February 14, 2017. Cussnick said that after investigating the two robberies as well as
gathering some information about the MetroPCS robbery, he determined that the
same person had committed all of the robberies in similar fashion wearing the same
15
clothing. According to Cussnick, he eventually singled out Hobdy as the robber
because more than one witness from the robberies had identified him in photo
lineups. After seeing Kline’s bulletin and believing that the robberies were related,
Cussnick contacted Kline and shared his conclusion that Hobdy was the robber.
Cussnick said that he ultimately was able to locate Hobdy in New Orleans
Parish, Louisiana, where he took Hobdy into custody. Cussnick also interviewed
Hobdy in Louisiana about the robberies.
According to Cussnick, Hobdy denied any involvement in the robberies.
Cussnick also said that he showed Hobdy Kline’s bulletin and the thing that upset
Hobdy more than being accused of the robberies was the description in the bulletin
that the robber was “a man dressed as a woman.” Cussnick said, “That one upset
[Hobdy] extremely bad. [Hobdy] was more upset with that than he was being accused
of robberies.” According to Cussnick, Hobdy made inconsistent statements during
the interview. Specifically, Cussnick testified that Hobdy initially said that he moved
to Louisiana in 2015, but because it was 2017, he could not have lived in Louisiana for
the “four years” he claimed he had lived there. Cussnick also said that his suspicion
that Hobdy had not lived in Louisiana very long was buttressed by the fact that he had
learned from Louisiana officials that Hobdy had obtained a Louisiana identification
card on February 7, 2017. Cussnick said that he also found it unbelievable when
Hobdy said that he had a phone during the times of the robberies but after only a
month of owning the phone, he had thrown it away. The State introduced and
16
published for the jury audio of the interview, which verified Cussnick’s testimony
about what Hobdy had told him.
During Cussnick’s testimony, the State introduced and published to the jury a
map depicting the locations of the robberies and an address that Cussnick testified
was associated with Hobdy. The map shows that the five robberies were all
committed within a few miles of the address associated with Hobdy.
Hobdy testified in his own defense. Hobdy testified that he identifies as a
“transgender female,” that he began “transitioning” in 2014 through hormone therapy
and “[s]eeing a therapist,” that he plans on having a sexual reassignment surgery in the
future, and that he was still in the process of “transitioning” during February 2017.
Hobdy further averred that he considers himself a woman, that he presents himself as
a woman “every day of [his] life,” and that he gets upset if someone does not take
viewing him as a woman seriously.
According to Hobdy, he was living in the streets of New Orleans during the
time the robberies were committed and that he had lived in Louisiana since the
middle of 2014. Hobdy admitted that he has a lengthy criminal history in Tarrant
County, including convictions for aggravated assault, prostitution, and failure to
identify himself to police, but he said that he had never been convicted of any offense
that involved stealing from a person or carrying a gun. According to Hobdy, because
of the hormone therapy, he has not been able to grow facial hair for a year and would
not have been able to grow facial hair in February 2017. He also said that he had seen
17
the video footage from the surveillance cameras and that he could not see that the
robber had facial hair. By Hobdy’s account, he bears no resemblance to the robber in
the videos. Specifically, Hobdy said that the person in the video is obviously a man
disguised as a woman whereas he is already living as a woman. He also stated that his
eyebrows are not as “heavy” as the robber’s eyebrows and that he does not have the
same-shaped nose as the robber.
On cross examination, Hobdy admitted that he was in Texas in 2014 when he
was convicted of prostitution and served a six-month jail sentence. When asked why
he had testified that he lived in New Orleans in 2014, he stated that he “got the years
mixed up.” When asked again whether he was in New Orleans in 2014, Hobdy did
not respond. The State introduced and published to the jury pictures of Hobdy that
officers took of him after he was extradited to Texas. Hobdy agreed that the pictures
accurately reflected him at the time he was extradited, but he said that during that time
he was not taking his routine hormones. He also testified that he had a pretty
distinctive scar on the side of his mouth. On redirect, the defense introduced two
photographs of Hobdy that had been taken the day of trial.
A jury convicted Hobdy of six counts of aggravated robbery with a deadly
weapon and assessed punishment at sixty years’ confinement for each conviction. The
trial court rendered judgment accordingly, ordering that the sentences run
concurrently. This appeal followed.
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III. DISCUSSION
In his sole issue, Hobdy argues that the evidence is insufficient to support his
convictions. Specifically, Hobdy argues that the evidence is insufficient to establish
that he was the individual that committed the robberies. Hobdy does not challenge
that the five robberies were committed by the same person.
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full
play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an
evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and
credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at
622. Instead, we determine whether the necessary inferences are reasonable based on
the evidence’s cumulative force when viewed in the light most favorable to the
19
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency
review must not engage in a ‘divide and conquer’ strategy but must consider the
cumulative force of all the evidence.”). We must presume that the factfinder resolved
any conflicting inferences in favor of the verdict, and we must defer to that resolution.
Murray, 457 S.W.3d at 448–49.
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial. See
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v. State,
389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are
determined by state law.”). Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as
authorized by the indictment” means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the
State pleads a specific element of a penal offense that has statutory alternatives for
that element, the sufficiency of the evidence will be measured by the element that was
actually pleaded, and not any alternative statutory elements.”).
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A person commits aggravated robbery if he commits robbery and he uses or
exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2). A person commits
robbery if, in the course of committing theft with the intent to obtain or maintain
control of the property, he intentionally or knowingly threatens or places another in
fear of imminent bodily injury or death. Id. at § 29.02(a)(2). A firearm is a deadly
weapon. Id. at § 1.07(a)(17).
The State must prove beyond a reasonable doubt that the defendant is the
person who committed the charged offenses. Bradley v. State, 359 S.W.3d 912, 916
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Identity may be proven by direct
evidence, circumstantial evidence, or even reasonable inferences made from available
evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Bin Fang v.
State, 544 S.W.3d 923, 928 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Lack of
DNA or fingerprint evidence does not affect the sufficiency of the proof. Pena v.
State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). And it is
well-settled that the testimony of a sole witness to an offense may constitute sufficient
evidence to support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.
1971); Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref’d).
Here, both Velasquez, the victim from the MetroPCS robbery, and Jefferson,
one of the victims from the 7-Eleven robbery, testified that they had picked Hobdy’s
picture from a photo lineup days after the robberies. And both Velasquez and
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Jefferson identified Hobdy in court as the robber. Further, the jury heard, both
through Velasquez’s testimony and her 911 call, that the robber had either a scar or
mole on his face, and Hobdy testified about a distinctive scar on his face. This
testimony alone could constitute sufficient evidence that Hobdy was the robber in
those two robberies. See Aguilar, 468 S.W.2d at 77 (“We conclude that the testimony
of the eye witness alone was sufficient to support the jury’s verdict.”).
But the State put on more evidence of Hobdy’s identity than just Velasquez’s
and Jefferson’s testimony. Indeed, the State presented in-store surveillance video
from the Fielder Road Cato, GameStop, MetroPCS, and 7-Eleven robberies. And at
one point in the trial, the State focused the jury’s attention toward a segment in the
MetroPCS video wherein the robber looked almost directly at the camera as he
entered the store. The State also introduced Kline’s bulletin which contained a still
shot of the robber from the 7-Eleven robbery. A rational factfinder could have
concluded that Hobdy, who the jury saw in open court throughout the course of trial,
was the same person they saw in the images of the robber that the State introduced.
See Smith v. State, 421 S.W.3d 161, 165 (Tex. App.—San Antonio 2013, no pet.)
(reasoning that the jury could have concluded defendant was the perpetrator based
partly on the fact that the State had introduced images from surveillance video
showing perpetrator of aggravated robbery).
Additionally, the jury could have considered Hobdy’s inconsistent stories to
Cussnick about how long he had lived in Louisiana, as well as his inconsistent and
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nonresponsive statements made at trial about how long he had lived there, as evidence
of a consciousness of guilt that he was the perpetrator of these robberies. See Ross v.
State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(reasoning that defendant’s statements to police on videotape which contradicted
other evidence at trial were relevant and admissible to show his consciousness of
guilt). The jury also could have reasonably inferred from Hobdy’s reaction to Kline’s
bulletin that Hobdy was “insult[ed]” to be described as a “man dressed as a woman”
and that Hobdy considered the bulletin’s description as an afront to him because he
considered the flier to be about him. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman, 520 S.W.3d at 622. This inference is further reasonable given that Hobdy
testified that he becomes upset when he is not acknowledged as being female.
Hobdy argues that the evidence presented at trial about his physical
characteristics is inconsistent with his own physical characteristics. He also points out
that not every witness testified to the robber’s same height, weight, voice, and skin
color and that some of the witnesses reported or testified inconsistently by their own
statements. While it is true that some witnesses’ recollections of the robber differed
from other witnesses’ recollections and while it is true that some witnesses reported
different descriptions from the ones they ultimately testified to, the resolution of these
perceived inconsistencies is the province of the jury and we must presume that the
jury resolved the inconsistencies in favor of its finding that Hobdy was the robber.
See Murray, 457 S.W.3d at 448–49 (reasoning that it is the factfinder’s role to resolve
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any conflicting inferences in favor of the verdict and that as a reviewing court we
must defer to that resolution); see also Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim.
App. 1998) (reasoning that the factfinder is free to believe or disbelieve any part or all
of a witness’s testimony).
Viewing all the evidence of Hobdy’s identity in the light most favorable to the
jury’s verdict, we hold that a rational factfinder could have found that the State
proved beyond a reasonable doubt that Hobdy is the person who committed the
robberies. See Bradley, 359 S.W.3d at 916; see also Jackson, 443 U.S. at 319, 99 S. Ct. at
2789. We overrule Hobdy’s sole issue.
IV. CONCLUSION
Having overruled Hobdy’s sole issue on appeal, we affirm the trial court’s
judgments.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 8, 2019
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