                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00005-CR
                            NO. 02-10-00006-CR


FREDERICK DEVELL PIMPTON                                         APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     A jury convicted Appellant Frederick Devell Pimpton of aggravated robbery

and evading arrest with a vehicle and assessed his punishment at forty-five

years’ confinement for the aggravated robbery conviction and six years’

confinement for the evading arrest conviction.     The trial court sentenced

Appellant accordingly and ordered the sentences to be served concurrently. In

     1
      See Tex. R. App. P. 47.4.
four issues challenging the evading arrest conviction, Appellant contends that the

evidence is legally and factually insufficient to support a section 12.35(c) offense

and that the jury never found Appellant guilty of such an offense; that the six-year

sentence is void because it is outside the punishment range for the ―regular state

jail felony‖ of which the jury found him guilty; and, alternatively, that Appellant

suffered egregious harm from the inclusion of an offense enhancement

paragraph in the punishment jury charge when the jury had not convicted

appellant of an aggravated state jail felony. In his sole issue challenging the

aggravated robbery conviction, Appellant contends that the evidence is factually

insufficient to support the conviction.   Because we hold that the evidence is

sufficient to support the aggravated robbery conviction and that the enhancement

paragraph was not an offense enhancement paragraph but a punishment

enhancement paragraph, we affirm the trial court’s judgments.

I. Aggravated Robbery

      In his fifth issue, Appellant argues that the evidence is factually insufficient

to support his conviction for aggravated robbery. The Texas Court of Criminal

Appeals has held that there is no meaningful distinction between the legal

sufficiency standard and the factual sufficiency standard.2 Thus, the Jackson

standard, which is explained below, is the ―only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each

      2
       Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).


                                          2
element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖3

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.4

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.5 The trier of fact is the sole judge of

the weight and credibility of the evidence.6 Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder.7

      Section 29.03(a)(2) of the penal code provides in relevant part that ―[a]

person commits an offense if he commits robbery as defined in Section 29.02,



      3
       Id.
      4
       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      5
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
      6
       See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
      7
       Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).


                                          3
and he . . . uses or exhibits a deadly weapon.‖8 A person under the facts of this

case commits robbery if ―in the course of committing theft as defined in Chapter

31 and with 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.‖9 Section 31.03 of the penal code provides in relevant part that

―[a] person commits an offense if he unlawfully appropriates property with intent

to deprive the owner of property,‖ and ―[a]ppropriation of property is unlawful

if . . . it is without the owner’s effective consent.‖10

       Christopher Steele testified that on the evening of September 12, 2007, he

and his wife walked to the Fina station near their house to get something to eat at

its deli.     The Fina station is located in Fort Worth, Tarrant County, Texas.

Christopher stated that while he was outside waiting on his food to get ready and

smoking a cigarette, Appellant approached him and asked if he would like to look

at some DVDs that Appellant was selling.              Christopher answered Appellant

affirmatively and went over to Appellant’s car.            Christopher knelt down and

browsed through a bag of DVDs lying on the ground near Appellant’s car.

Christopher heard Appellant call to another man and began to stand up. The car

door hit Christopher in the side. Appellant then circled behind him. Christopher


       8
        Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
       9
        Id. § 29.02(a)(2).
       10
            Id. § 31.03(a), (b).


                                             4
looked to the left and saw Appellant standing about five feet away and pointing a

semiautomatic gun in a ―sideways‖ fashion at Christopher.            Appellant told

Christopher to empty his pockets. Christopher did so, throwing about sixty-eight

dollars and his wallet, which contained his driver’s license and social security

card, on the ground. Christopher testified that he turned over the property to

Appellant because he had a gun and that the gun caused Christopher to be in

imminent fear of bodily injury or death.

       Christopher told the jury that he walked away from Appellant and that he

and his wife, Margaret, called the police. The police arrived at the Fina and

questioned the Steeles and other witnesses. While the police were still there,

Appellant was apprehended nearby. The police took the Steeles to the scene of

the arrest, and Christopher identified Appellant as the man who had robbed him.

Christopher’s wallet and most of its contents (less sixty dollars) were recovered

from the vehicle at the scene.

       Applying the appropriate standard of review, we hold that the evidence is

sufficient to support Appellant’s conviction for aggravated robbery. We overrule

his fifth issue.

II. Evading Arrest

       In his first four issues, Appellant essentially complains that the second

paragraph of the evading arrest indictment is not a punishment enhancement

paragraph but is instead an offense enhancement paragraph that the State did

not prove at the guilt phase. He also contends that the jury did not find him guilty


                                           5
of an enhanced state jail felony, that the evidence is insufficient to support his

conviction for an enhanced state jail felony, that the jury should not have been

charged at punishment on the enhancement paragraph, and that his sentence is

void.

        The indictment alleges,

        [Appellant], in the County of Tarrant and State aforesaid, on or about
        the 12th day of September 2007, did

        INTENTIONALLY FLEE, USING A VEHICLE, FROM C. BRASHER,
        KNOWING C. BRASHER WAS A PEACE OFFICER WHO WAS
        ATTEMPTING TO LAWFULLY ARREST OR DETAIN [HIM.]

        STATE JAIL FELONY ENHANCEMENT—3RD DEGREE FELONY
        NOTICE: AND IT IS FURTHER PRESENTED TO SAID COURT
        THAT PRIOR TO THE COMMISSION OF THE STATE JAIL
        FELONY . . . SET OUT ABOVE, THE DEFENDANT WAS FINALLY
        CONVICTED FOR A FELONY OFFENSE LISTED IN THE TEXAS
        CODE OF CRIMINAL PROCEDURE 42.12, SEC. 3g(a)(1), OR FOR
        WHICH THE JUDGMENT CONTAINS AN AFFIRMATIVE FINDING
        OF THE USE OR EXHIBITION OF A DEADLY WEAPON UNDER
        TEXAS CODE OF CRIMINAL PROCEDURE 42.12, SEC. 3g(a)(2),
        TO-WIT: ATTEMPTED MURDER, IN THE CRIMINAL DISTRICT
        COURT NUMBER ONE OF TARRANT COUNTY, TEXAS, IN
        CAUSE NUMBER 0573468D, ON THE 18TH DAY OF MAY, 1985[.]

Section 12.35(c) provides,

        (c) An individual adjudged guilty of a state jail felony shall be
        punished for a third degree felony if it is shown on the trial of the
        offense that:

              (1) a deadly weapon as defined by Section 1.07 was used or
              exhibited during the commission of the offense or during
              immediate flight following the commission of the offense, and
              that the individual used or exhibited the deadly weapon or was
              a party to the offense and knew that a deadly weapon would
              be used or exhibited; or



                                          6
            (2) the individual has previously been finally convicted of any
            felony:

                   (A) . . . listed in Section 3g(a)(1), Article 42.12, Code of
                   Criminal Procedure; or

                   (B) for which the judgment contains an affirmative
                   finding under Section 3g(a)(2), Article 42.12, Code of
                   Criminal Procedure.11

      Relying on dicta in State v. Webb,12 Appellant argues that the second

paragraph of the indictment charges an offense enhancement, that is, one that

must be proved in the guilt phase, as opposed to a punishment enhancement

which is properly proved in the punishment phase. But since Appellant filed his

brief, the Texas Court of Criminal Appeals has explained that it erred in Webb by

including the dicta upon which Appellant relies:

      In Webb, we erred to imply that Penal Code Section 12.35(c)
      increases the offense level. Section 12.35(c) uses the language
      ―shall be punished,‖ the same language in Penal Code Section
      12.42, which we made clear in Webb increases the punishment level
      only. When applicable, Section 12.35(c) increases the punishment
      level for a 12.35(a) state jail felony to a third-degree felony, but the
      primary offense itself remains a state jail felony.13

Accordingly, we overrule Appellant’s first issue. Because his second issue is

dependent on the success of his first issue, we also overrule his second issue.

Finally, because his sufficiency issues regarding the evading arrest conviction


      11
        Id. § 12.35(c).
      12
        12 S.W.3d 808, 811–12 (Tex. Crim. App. 2000).
      13
        Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011).


                                         7
likewise rely on the success of his first issue and raise no other complaints about

the evidence supporting his evading arrest conviction, we overrule his third and

fourth issues.

III. Conclusion

      Having overruled Appellant’s five issues, we affirm the trial court’s

judgments.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

LIVINGSTON, C.J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2011




                                        8
