                                                                                PD-0417-15
                             PD-0417-15                       COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 4/21/2015 5:43:28 PM
                                                               Accepted 4/22/2015 10:50:05 AM
                                                                                ABEL ACOSTA
                              NO. ___________________                                   CLERK

                                     IN THE
                           COURT OF CRIMINAL APPEALS
                                   OF TEXAS

__________________________________________________________________

                             JESUS EFRAIN ABREGO,
                                    Petitioner
                                        v.

                              THE STATE OF TEXAS
                                   Respondent


On Appeal from Cause No. 1335057D in the 371st District of Tarrant County,
Texas, Honorable Mollee Westfall,, Judge Presiding, and No. 07-14-00171-CR
          in the Court of Appeals for the Seventh District of Texas
__________________________________________________________________

                PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________________


                                         Stickels & Associates, P.C.
                                         John W. Stickels
                                         TBN: 19225300
                                         P. O. Box 121431
          April 22, 2015                 770 N. Fielder Rd.
                                         Arlington, Texas 76012
                                         Phone: (817) 479 - 9282
                                         Fax: (817) 622 – 8071
                                         john@stickelslaw.com
                                         Attorney for Petitioner


     NO ORAL ARGUMENT REQUESTED
                                      THE PARTIES

      Pursuant to Rule 38(a) of the Texas Rules of Appellate Procedure, the

following is a complete list of the names and addresses of all parties to the trial

court’s final judgment and counsel in the trial court, as well as appellate counsel, so

the members of the court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of the case and

so the Clerk of the Court may properly notify the parties to the trial court’s final

judgment or their counsel, if any, of the judgment and all orders of the Court of

Appeals.


Trial Judge:                            The Honorable Mollee Westfall
                                        371st District Court
                                        Tarrant County, Texas
                                        401 Belknap
                                        Fort Worth, Texas 761966

Appellant:                              Mr. Jesus Efrain Abrego
                                        TDC No. 01920746
                                        J. Middleton Transfer Facility
                                        13055 FM 3522
                                        Abilene, TX 79601

Appellant’s Trial Counsel:              Mr. George R. Trimber
                                        SBOT NO. 20222600
                                        925 8th Ave.
                                        Fort Worth, Texas 76104-7666



                                                                                      i
Appellant’s Counsel
on Appeal:                  John W. Stickels
                            TBN: 19225300
                            P. O. Box 121431
                            Arlington, Texas 76012

Appellee:                   The State of Texas

Appellee’s Trial Counsel:   Ms. Michelle D. Dobson
                            SBOT NO. 24049075
                            and
                            Mr. Keith Harris
                            SBOT NO. 24041058
                            Assistant District Attorneys
                            401 W. Belknap Street
                            Fort Worth, Texas 76196
Appellee’s Counsel
on Appeal:                  Tarrant County Criminal District
                            Attorney
                            Appeals Division
                            401 Belknap
                            Fort Worth, Texas 76196




                                                               ii
                                         TABLE OF CONTENTS

THE PARTIES........................................................................................................... i

TABLE OF CONTENTS......................................................................................... iii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................1

GROUNDS FOR REVIEW.......................................................................................1

I. The Seventh Court of Appeals erred when it did not find that there was insufficient
evidence to support Petitioner’s conviction...............................................................1

REASONS FOR REVIEW ........................................................................................2

DISCUSSION ............................................................................................................2

ARGUMENTS...........................................................................................................4

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW: ...........................4

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:..............5

PRAYER FOR RELIEF ............................................................................................6

CERTIFICATE OF SERVICE ..................................................................................7

CERTIFICATE OF COMPLIANCE.........................................................................8

APPENDIX ................................................................................................................9


                                                                                                                       iii
                                      TABLE OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .......................................5

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)..........................................4

Jackson v. Virginia, 443 U.S. 307 (1979)..................................................................4

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993)..........................................4

Statutes

Tex. Penal Code §2.01(2003). ...................................................................................5

Rules

Tex. R. App. P. 38(a) ................................................................................................. i

Tex. R. App. P. 66.3...................................................................................................2

Tex. R. App. P. 9(4)(i)(1). .........................................................................................8

Tex. R. App. P. 9.4(e) ................................................................................................8




                                                                                                                      iv
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner does not request oral argument in this case.

                         STATEMENT OF THE CASE

      Petitioner’s jury trial was held in the 371st District Court of Tarrant County,

Texas, before the Honorable Mollee Westfall, Judge Presiding. (R.R. Vol. 1 – 4).

The jury convicted Petitioner for the offense of aggravated robbery. (CR. 33-38, 50;

ROA. 3, 130.) The jury sentenced Petitioner to confinement for forty (40) years in

the Institutional Division of the Texas Department of Criminal Justice. (C.R. 41-45,

50; ROA. 3, 144). Petitioner has remained in custody pending appeal. Petitioner

has remained in custody pending appeal.

                STATEMENT OF PROCEDURAL HISTORY

      The opinion by the Seventh District Court of Appeals affirming the trial

court’s decision was handed down on March 13, 2015. Therefore, this PDR was due

on April 13, 2015. A Motion for Leave to File PDR Late is being tendered herwith.

                           GROUNDS FOR REVIEW

       I. The Seventh Court of Appeals erred when it did not find that there was

insufficient evidence to support Petitioner’s conviction.




                                                                                   1
                              REASONS FOR REVIEW

      1. The decision of the Seventh Court of Appeals conflicts with decisions

rendered by the Court of Criminal Appeals.

      2. The decision of the Seventh Court of Appeals conflicts with the decisions

of other courts of appeals.

      3. The decision of the Seventh Court of Appeals so far deviates from the fair

administration of justice that a Court of Criminal Appeal’s correction is required.

See Tex. R. App. P. 66.3

                                  DISCUSSION

      Petitioner was wrongfully convicted of the felony offense of aggravated

robbery because the alleged victim of the crime misidentified Petitioner as the he

person who robbed him. The victim misidentified Petitioner as the person who

robbed him because it was too dark for the victim to see who robbed him. Thus,

without the wrongful identification, the jury would not have convicted Petitioner of

this offense.

      U. U., the victim of this crime, lives in Carrolton, Texas, and works as a

financial planner for an insurance company. (4 RR 15-17). U. U. also has a hobby

as an amateur photographer who routinely contacts models on a website called

Model Mayhem. (4 RR 17-19). On the night of the robbery, U. U. contacted a
                                                                                  2
prospective model, M., and arranged to photograph her at her apartment in Haltom

City, Texas, so he could photograph her. (4 RR 21).

      U. U. arrived at M.’s apartment at about 9:15 p.m. and set up for the

photography shoot. An unknown male was at the apartment with M. (4 RR 24). U.

U. thought the photo-shoot would take about an hour. 4 RR 26. However, it ended

up lasting a lot longer and U. U. decided to leave and he went to his car. (4 RR 26).

M. followed U. U. to the car so she could be paid. (4 RR 26-27). However, M. did

not make it all the way to the car because her friend told her she had a phone call

from her grandmother. (4 RR 26-27). Petitioner continued to his car and waited for

M. to come get paid. (4 RR 27).

      M. came to the car and U. U. wrote her a check. (4 RR 28). As U. U. was

writing M.’s check, two men came up directly to the car. (4 RR 28). The first man

pulled a gun on U. U. and as told U. U. to give him whatever he had on him. (4 RR

28-29). U. U. gave the man his wallet and cell phone. (4 RR 29-30). The second man

opened the car door, ransacked the car and tool cameras, eye glasses, sunglasses,

checkbook, driver’s license, gift cards, and camera lenses. (4 RR 29-30).

      The second man also took the monograms (decals) from U. U.’s car. 4 RR 30.

After the two men left, U. U. drove away, parked at a gas station under the light, and

called the police. (4 RR 34-35).
                                                                                    3
      Sometime after the robbery, U. U. viewed six similar photographs at the

Haltom City Police Department. (4 RR 43-44). U. U. picked the person who held the

gun on him out of the photographic lineup. (4 RR 44). U. U. picked Petitioner out of

the photographic line up and identified him in court as the person who had the gun

and robbed him. (4 RR 45-46). On cross examination, U. U. admitted that it was

very dark when the robbery happened. (4 RR 51-52). U. U. also admitted that he was

focused on the weapon. (4 RR 55-56).

                                  ARGUMENTS

A.    LEGALLY INSUFFICIENCY – STANDARD OF REVIEW:

      When reviewing a claim of insufficiency of the evidence, the appellate court

must determine, after considering all the evidence in the light most favorable to the

verdict, whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). In conducting this

review of insufficiency, the court does not reevaluate the weight and credibility of

the evidence, but only ensures that the jury reached a rational decision. Muniz v.

State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Whether the evidence satisfies

the Jackson test is a matter of law. The Jackson v. Virginia legal-sufficiency

standard is the only standard that a reviewing court should apply in determining
                                                                                    4
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, 899 (Tex. Crim. App. 2010).

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:

      The State is required to prove every element of an offense beyond a reasonable

doubt. Tex. Penal Code §2.01(2003). According to the evidence adduced at trial,

there is both factually and legally insufficient evidence for the jury to have found

beyond a reasonable doubt that Petitioner committed the indicted offense. As a

result, this Court should overturn his convictions and order an acquittal.

      A person commits the criminal offense of aggravated robbery if the person

uses threats force to commit a theft and uses or exhibits a deadly weapon. Tex. Penal

Code §29.03(1994). The State failed to prove each and every element of the offense

charged. Specifically, the State failed to prove that Petitioner was the person who

committed the offense in question because of a mistaken identity and/or

misidentification.

      U. U., the victim of the robbery, was not able to adequately identify the person

who robbed him because it was too dark to see. Therefore, the State failed to prove

each and every element of the offense charged because there is insufficient evidence

to show that Petitioner was one of the people who robbed U. U. evidence clearly
                                                                                    5
shows that Petitioner was living at the Gardenia Street residence on As a result, there

is insufficient evidence to sustain Petitioner’s conviction and this court must reverse

his conviction.

         The Seventh Court of Appeals erred when it did not find that there is

insufficient evidence to sustain Petitioner’s conviction and this court should reverse

Petitioner’s conviction.

                             PRAYER FOR RELIEF

         WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that this Court grant discretionary review and allow each party to fully brief and

argue the issues before the Court of Criminal Appeals and that upon reviewing the

judgment entered below, that this Court reverse this cause and remand it for a new

trial.




                                                                                     6
                                       Respectfully submitted,

                                       Stickels & Associates, P.C.
                                       P. O. Box 121431
                                       770 N. Fielder Rd.
                                       Arlington, Texas 76012
                                       Phone: (817) 479 - 9282
                                       Fax: (817) 622 – 8071
                                       john@stickelslaw.com

                                       BY: /S/ John W. Stickels
                                       John W. Stickels
                                       State Bar No. 19225300
                                       Attorney for Jesus Efrain Abrego



                             CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has

been furnished to counsel for the State via hand delivery and on the State Prosecuting

Attorney via regular mail on this 121st day of April, 2015.

                                       /S/ John W. Stickels
                                       John W. Stickels




                                                                                    7
                       CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App. P.

   9.4(i)(2) because it contains 1,707 words, excluding the parts of the brief

   exempted by Tex. R. App. P. 9(4)(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

   because it has been prepared in proportional spaced typeface using Windows

   Word software in Times New Roman 14-Point text and Times New Roman

   12-point font in footnotes.

                                        /S/ John W. Stickels
                                        John W. Stickels




                                                                             8
                           APPENDIX

1. Opinion of the Seventh Court of Appeals




                                             9
                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-14-00171-CR


                            JESUS EFRAIN ABREGO, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 371st District Court
                                    Tarrant County, Texas
                Trial Court No. 1335057D, Honorable Mollee Westfall, Presiding

                                        March 13, 2015

                               MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Jesus Efrain Abrego, appeals the trial court’s judgment in which he

was convicted of aggravated robbery and sentenced to forty years’ imprisonment. 1 On

appeal, he challenges the sufficiency of the evidence to establish that he was the

individual who committed aggravated robbery. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 29.03 (West 2011).
                              Factual and Procedural History


       Financial planner, Umer Usman, is also a photography hobbyist, and he met with

a model named Megan Finster through a photography networking site. In July 2013,

the two met at Finster’s apartment for a photo shoot that lasted about two hours.

Usman prepared to leave, and he and Finster were walking together to Usman’s car

discussing future photo shoots when Finster got a phone call and briefly went back

inside her apartment. Usman waited near his car for her to come back out so that he

could pay her per their agreement. As the two resumed their discussion about a future

shoot, two men—one wielding a gun—approached Usman and robbed him of most of

his belongings, including his wallet, checkbooks, cell phone, glasses, camera,

photography equipment, car decals from his regular job, and even a pack of energy

drinks. The two men ran from the car, and, as they did so, the gunman kept stumbling

and dropping items. During that less than graceful getaway, Usman was able to get a

good look at the perpetrators; at one point, the gunman stopped to look for a dropped

item and looked directly at Usman.


       Usman directed Finster to call the police, and he drove away from the apartment

complex thinking she had done so. He parked in the street by a nearby gas station,

turned on his hazard lights, and flagged down Haltom City police officer Brian Matos as

he passed by.2 Usman described the encounter to Matos, who went with Usman to the

scene and spoke with Finster there as well. During his interaction with Finster, Matos

noted that her behavior and demeanor were atypical of a recent victim of an aggravated


       2
        Apparently, Finster made no attempt to summon police, and it was coincidence that Matos
happened to be passing by the area and noticed Usman signaling for assistance.

                                              2
robbery. He described her nervousness and her reluctance to share information with

him as “very strange.”     While the two talked, he also noted that someone named

“Bullfrog” kept calling her phone.


        Matos turned over his report to the assigned detective, and, by the next day, the

police had prepared a photographic line-up from which Usman was able to identify

appellant. Usman indicated to the detective administering the photographic line-up that

he was seventy percent certain that the individual he identified was the gunman who

had robbed him the previous day.


        Three days after the robbery, Officer Jason Rogers was on patrol when he

noticed that a vehicle was being driven erratically and lunging forward in such a way

that Rogers thought the driver might be having mechanical problems with the vehicle.

He reported to dispatch that he was on a “motorist assist” call. He approached the

vehicle and learned that the problem was the driver’s inexperience with driving a vehicle

with a manual transmission.          As he was dealing with the situation, Rogers also

recognized a passenger in the car as appellant, whose nickname—Bullfrog—is familiar

to Haltom City police and knew that a warrant had been issued for appellant in

connection with the aggravated robbery. Rogers arrested him. Appellant was charged

and convicted of aggravated robbery and sentenced to forty years’ imprisonment. He

has appealed that conviction, contending the evidence was insufficient to support it. We

will affirm.




                                              3
                         Standard of Review and Applicable Law


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required 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.” Id. at 899.


       Therefore, when the evidence would support conflicting inferences, we must

presume that the factfinder resolved the conflicts in favor of its verdict and must defer to

that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 326). The deference we are required to give a jury’s verdict

is perhaps most acute when it depends on the jury’s evaluation of the credibility of

                                             4
witnesses and the weight to be given their testimony. See Speed v. State, No. 07-13-

00034-CR, 2015 Tex. App. LEXIS 171, at *6 (Tex. App.—Amarillo Jan. 9, 2015, no pet.)

(mem. op., not designated for publication) (citing Brooks, 323 S.W.3d at 894).


       Evidence as to the identity of the perpetrator of an offense can be proved by

direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App.

1986) (en banc) (discussing identity of perpetrator of robbery).        A victim’s positive

identification of a defendant as the perpetrator is sufficient to support a conviction. Cate

v. State, 124 S.W.3d 922, 928–29 (Tex. App.—Amarillo 2004, pet. ref’d) (citing Garcia

v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978), and Lopez v. State,

815 S.W.2d 846, 849 (Tex. App.—Corpus Christi 1991, no pet.)); see Johnson v. State,

176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).


                                         Analysis


       The record contains direct evidence supporting the conclusion that appellant was

the gunman who perpetrated the aggravated robbery. Usman testified that he was able

to get a good look at the gunman as the two men fled the scene. Usman viewed a

photographic line-up the very next day and identified appellant as the gunman of the

duo who robbed him in the parking lot. At that time, he was seventy percent certain of

his identification; he was not absolutely certain, but this identification is evidence from

which the jury could assign its weight of the evidence going to identity. Further, Usman

identified appellant in court as the gunman, and he was “[p]ositive” of his in-court

identification.   This unequivocal in-court identification is more direct evidence from




                                             5
which the jury could have determined that appellant was one of the men who robbed

Usman. See Johnson, 176 S.W.3d at 77; Cate, 124 S.W.3d at 928–29.


       Going even further, Usman’s identification of appellant as one of the perpetrators

is consistent with other, circumstantial evidence supporting the conclusion that it was

appellant who committed the robbery.       See Earls, 707 S.W.2d at 85.       During his

investigation, Officer Matos noticed that someone identified as Bullfrog called the

suspicious-acting Finster several times shortly after the robbery. He noted the name,

apparently one rather familiar to Haltom City police, and passed along that information

to the detective in charge of the case. That Usman independently identified the gunman

as appellant, who became quickly and closely connected by nickname to the incident,

buttresses appellant’s connection to the robbery and serves as additional, circumstantial

evidence supporting the jury’s determination that appellant was one of the perpetrators

of the aggravated robbery.


       Because the jury is the sole judge of the credibility of the witnesses and the

weight to be given their testimony and because resolution of conflicts or inferences

therefrom lies within the exclusive province of the jury, it may choose to believe all,

none, or some of the evidence presented to it. See Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App.

1995) (en banc). Here, there is sufficient evidence from which the jury could determine

that appellant was one of the men who robbed Usman. We overrule appellant’s sole

point of error.




                                            6
                                      Conclusion


      Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                        Mackey K. Hancock
                                            Justice


Do not publish.




                                           7
