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

                                               –2–
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.


                                                      –3–
       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


                                                –4–
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


                                                –5–
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

                                              –6–
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

                                                  –7–
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

                                                –8–
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


                                                –9–
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.
                                              –10–
                                        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




                                             –11–
                                       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.




                                               –12–
