                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

 HAROLD VAUGHN,                                           '
                                                                             No. 08-11-00036-CR
                                   Appellant,             '
                                                                                Appeal from the
 v.                                                       '
                                                                              371st District Court
 THE STATE OF TEXAS,                                      '
                                                                          of Tarrant County, Texas
                                   Appellee.              '
                                                                               (TC# 1186711D)
                                                          '

                                                  OPINION

         Appellant appeals his conviction for aggravated robbery with a deadly weapon. We

affirm.1

                                               BACKGROUND

         After Brooklyn Baker and Ashley Darden had closed and locked the store at which they

worked in Fort Worth, three men with guns directed them to unlock the store and turn off the

store’s alarm system, and then directed Ashley to unlock the store’s safe. The store had both an

internal safe and an external safe. Ashley explained to the men that it would take longer to open

the internal safe due to its timers. After she quickly opened the external safe, one of the men

bagged up the cash found within it. Ashley was then directed to open the internal safe.

         1
           As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the
precedent of that court. TEX. R. APP. P. 41.3.
       During this time, Brooklyn was able to see the robbers’ faces. When the robbers noticed

Brooklyn was watching them, one of the men forced her to the floor, cocked his gun over her head,

and told Ashley that he would shoot Brooklyn if Ashley did not open the safe. The store’s phone

then rang and the robbers directed Ashley to answer the telephone. When Ashley answered the

phone, it was silent. After Brooklyn heard sirens, one of the robbers told the other two robbers to

leave. The three robbers then left through the store’s back door.

       After the security system at the store had been disarmed, personnel at the store’s security

monitoring service began monitoring the store’s cameras, relayed information to police, and

officers were dispatched to the store. After hearing the dispatch regarding an armed robbery,

Officer Domingo Martinez was the first officer to arrive at the store. While alone in his vehicle,

Officer Martinez waited for other officers to arrive and testified that he expected to see three armed

individuals. Officer Martinez heard a “latch sound” and a door slam, and then observed three

individuals in dark clothing emerge from the back of the store. After Officer Martinez shouted,

“Stop, police!,” the three individuals ran away and two of them climbed a fence. At the fence,

Officer Martinez encountered the third individual, who was wearing a hooded sweatshirt bearing a

design and instructed him to get on the ground. In open court, Officer Domingo Martinez

identified Appellant as the third individual who he encountered at the fence. Officer Martinez

also identified Appellant as being present in a photograph admitted into evidence during trial.

The photograph, which was taken at the scene and admitted into evidence, shows Appellant seated

on the ground near the fence wearing a hooded jacket bearing a repeated pattern, dark pants, and

white shoes. Another photograph of the area shows U.S. currency inside a white plastic bag

bearing the name of the store that had been robbed and a handgun on the ground in close proximity


                                                  2
to the fence.

       Over counsel’s hearsay and confrontation clause objections, a security recording

containing video and still images of the store after the store’s alarm had been disarmed was

admitted into evidence and published to the jury. Images of the individuals who entered the store

were included in the still images, which were taken from the security system’s recording.

       At trial, Ashley did not make an in-court identification of Appellant, and explained that she

could only provide a physical description of the three men. During voir dire examination,

Brooklyn first noted that she was unable to make an in-court identification of any of the robbers

and, in a subsequent voir dire examination, she identified Appellant as being present during the

robbery. The trial court sustained defense counsel’s objection to permitting Brooklyn to testify

regarding identity.

       After the trial court overruled Appellant’s hearsay and confrontation clause objections,

Officer B.K. McHorse testified that during a show up, clerk Brooklyn Baker identified Appellant

as one of the individuals who had entered the store. Officer McHorse explained that at both the

time of Appellant’s arrest and during the show up, Appellant was wearing the same clothes, which

included a “hoody.” Brooklyn testified that she was interviewed by Officer McHorse, told him

about the robbery, described the robbers and their clothing, and, during the show up, recognized

the robber who was wearing a “hoody” and black pants.

       Crime Scene Officer Timothy Lee collected Appellant’s clothing from him at the jail

where he was being held. Among the clothing that Officer Lee collected from Appellant were

black pants, white tennis shoes, and a sweat jacket with a distinctive pattern across the front.

       The jury found Appellant guilty of both counts in the indictment. During the punishment


                                                 3
phase of trial, Appellant pleaded true to a repeat offender notice and the conviction was published

to the jury. After hearing punishment and mitigation-of-punishment evidence, the jury sentenced

Appellant to thirty years’ confinement on each count.

                                         DISCUSSION

       In a single issue, Appellant challenges the sufficiency of the evidence to support a finding

of the identity element of the offense of aggravated robbery with a deadly weapon because the

store’s employees, Ashley and Brooklyn, did not identify Appellant as one of the robbers. TEX.

PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (West 2011) (a person commits aggravated robbery

if in the course of committing theft and with intent to obtain or maintain control of property, the

person intentionally or knowingly threatens or places another in fear of imminent bodily injury or

death and uses or exhibits a deadly weapon). After a thorough review of all the evidence, we

disagree.

                                       Standard of Review

       Identity is an element of aggravated robbery that must be proved. See Greene v. State,

124 S.W.3d 789, 792 (Tex.App. – Houston [1st Dist.] 2003, pet. ref’d).           In conducting a

sufficiency-of-the-evidence review, we review “the evidence in the light most favorable to the

prosecution” and determine 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, 318–19,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012).

This standard gives full play to the responsibility of the trier of fact in resolving conflicts in

testimony, weighing the evidence, and drawing reasonable inferences from basic to ultimate facts.

Jackson, 443 U.S. at 318–19; Blackman v. State, 350 S.W.3d 588, 595 (Tex.Crim.App. 2011).


                                                4
       The trier of fact is the sole judge of the weight and credibility of the evidence. Wise, 364

S.W.3d at 903. Thus, we do not resolve any conflicts of fact or reevaluate the weight and

credibility of the evidence, or substitute our judgment for that of the fact finder. Isassi v. State,

330 S.W.3d 633, 638 (Tex.Crim.App. 2010); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.

2000). Rather, our role is limited to determining whether the necessary inferences are reasonable

based upon the cumulative force of the evidence when viewed in the light most favorable to the

verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App. 2011). As such, if the record

supports conflicting inferences, we presume that the fact finder resolved any inconsistencies in

favor of the verdict and defer to that resolution.         Clayton v. State, 235 S.W.3d 772, 778

(Tex.Crim.App. 2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App. 2004). The same

standard of review is applicable for both direct and circumstantial evidence cases. Geesa v. State,

820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28

S.W.3d 570 (Tex.Crim.App. 2000).

                                             Application

       Brooklyn testified that the three robbers left through the store’s back door. Officer

Martinez observed three individuals exiting the back of the store and encountered Appellant at the

fence near a gun and a bag, which bore the store’s logo and contained money. During trial,

Officer Martinez identified Appellant as the person he saw and apprehended at the fence. The

jury also had before it photographic and video evidence as well as testimony regarding Appellant’s

clothing at the time of his arrest, during the show up, and its collection from him at the jail.

       From our review of all the evidence, we conclude that the jury’s necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the light most


                                                  5
favorable to the verdict and defer to that resolution. See Sorrells, 343 S.W.3d at 155; Clayton,

235 S.W.3d at 778); Moff, 131 S.W.3d at 489-90. As the evidence is sufficient to support the

jury’s finding of Appellant’s identity, Appellant’s issue is overruled.

                                         CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice
March 13, 2013

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




                                                  6
