                                      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.

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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.




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                         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.




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                                      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.




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