                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-165-CR


EDDIE DON PINKSTON, JR.                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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I.    Introduction

      Appellant Eddie Don Pinkston, Jr. appeals his convictions and sentences

for aggravated assault with a deadly weapon and aggravated robbery with a

stick used as a deadly weapon. In two points, Appellant challenges the legal

and factual sufficiency of the aggravated robbery conviction and argues that his



      1
          … See Tex. R. App. P. 47.4.
convictions violate double jeopardy. We modify the judgment in part and affirm

it as modified.

II.   Factual and procedural background

      On May 19, 2007, Rene Rios went to the store to purchase a long-

distance phone card and took his neighbor, Appellant, with him. When Rios

purchased the card, he had approximately $400 in his wallet, in twenty dollar

increments. Rios testified that Appellant was present during the purchase and

in a position to see the money in Rios’s wallet.

      Rios and Appellant returned to Rios’s house. Rios testified that he was

talking to Appellant outside when “somebody hit me from the back, I turned

and then I received the other hit in the face.” Rios stated that he did not see

the object used to hit him but knew it was not someone’s hand because the

object was very hard. Rios stated that Appellant and two other individuals tried

to obtain his billfold while he was running away from them toward the back of

his house. He testified that he could feel their hands trying to “pull at his

billfold” inside his back pocket.2 Rios testified that his major injury was near

his right eye.




      2
       … When asked about his previous statement before trial to his attorney
that Appellant said the word “wallet” during the attack, Rios stated that he was
not absolutely certain that he had heard Appellant say that word.

                                       2
      After the attack, Officer Mason Fincher arrived at the scene. Officer

Fincher stated that Rios had a large laceration on the back of his head and a

large swelling to the right side of his face. He testified that he was not sure if

Rios was “hit so hard that it [] had split the skin open” or if Rios had been “shot

near the eye.” Officer Fincher stated that he had asked Rios questions through

his sister, Theresa, because Rios did not speak English. Theresa told him that

the suspect’s name was “Eric” who lived in the Pinkston home next to Rios’s

house.

      Officer Fincher testified that he had called for an ambulance because

Rios’s injuries were extensive, causing him to “slip[] in and out of

consciousness.” Officer Fincher stated that Rios’s injuries were severe enough

to put him in fear that Rios could “expire at that point.”        Officer Fincher

assumed that the suspect, “Eric,” was actually Appellant and retrieved a

mugshot to show Theresa, who confirmed “Eric” was in fact “Eddie Pinkston.”

Officer Fincher then went to the hospital and took photographs of Rios’s

injuries, which included a laceration near Rios’s eye and the laceration on the

back of Rios’s head.




                                        3
       Rios testified that he stayed in the hospital for “two or three days” and

that doctors surgically attached metal plates to the bone near his eye.3 After

Rios’s surgery, Detective B.K. McHorse spoke with him through an interpreter,

Robert Vargas. Detective McHorse testified that he provided a photo spread,

and Rios identified Appellant out of six individuals with similar facial features.

Detective McHorse wrote the original warrant and presented it to the judge;

Detective Billy Randolph took over the rest of the investigation.

       Police arrested Appellant on June 22, 2007.         On June 26, 2007,

Detective Randolph interviewed Appellant. In the interview, Appellant waived

his Miranda rights and discussed the activities he had participated in on May

19, 2007.      Appellant initially denied any knowledge of the attack on Rios.

Appellant then admitted that Rios spoke with him around 8 or 9 o’clock that

night and that Appellant “went and got [powder] cocaine for him.” Appellant

stated that he “called his partner,” who brought the cocaine. Appellant said

that Rios paid his friend, not him, for the cocaine and it was worth “twenty to

thirty dollars.” 4


       3
       … Rios testified that he works “very little” now because he suffers from
convulsions, which he did not experience prior to the attack. Rios stated that
he also suffers from memory loss.
       4
       … Detective Randolph testified about this interview and stated that
Appellant had also told him that he “fronted” Rios the cocaine, expecting to be
paid later.

                                        4
      Appellant eventually admitted in the interview that he saw the

confrontation with Rios around midnight and that “it was over drugs.”

Appellant did not initially identify the other two participants of the attack but

then stated one of the men was named “Wal-Mart” and the other individual was

the friend who brought the cocaine. Appellant then told Detective Randolph

that there was no robbery and that “if anything, [he] assaulted [Rios].”

Immediately after this statement, Appellant said that this “was a dope thing”

and “he didn’t want to give me my money.” Appellant told Detective Randolph

that he had hit Rios once or twice with a stick. When Detective Randolph

stated that Rios’s injuries were not consistent with the use of a stick, Appellant

stated that the weapon he had used was more akin to a “two-by-four” piece of

wood. Appellant said that he left after the attack ended.

      A grand jury indicted Appellant for aggravated robbery and aggravated

assault. The indictment stated that Appellant

      did 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, cause bodily injury to another,
      Rene Rios, by hitting him with a stick, and the defendant used or
      exhibited a deadly weapon, to-wit: a stick, that in the manner of its
      use or intended use was capable of causing death or serious bodily
      injury.

      Count two: and it is further presented in and to said court that the
      defendant in the county of Tarrant and state aforesaid on or about
      the 19th day of May, 2007, did intentionally or knowingly cause

                                        5
       bodily injury to Rene Rios by hitting him with a stick, and the
       defendant did use or exhibit a deadly weapon during the
       commission of the assault, to wit: a stick, that in the manner of its
       use or intended use was capable of causing death or serious bodily
       injury.

       After a bench trial, the court found Appellant guilty of both aggravated

robbery and aggravated assault. The trial court sentenced Appellant to thirty

years’ imprisonment for both convictions, with the sentences running

concurrently.

III.   Legal and factual sufficiency challenge

       In his first point, Appellant argues that the evidence at trial was legally

and factually insufficient to prove that he was in the course of committing a

theft or had intent to obtain and maintain control of Rios’s property when he

assaulted Rios.

       A.    Legal sufficiency standard of review

       In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).




                                        6
      The trial judge, when sitting as the sole trier of fact, is the exclusive judge

of the credibility of the witnesses and the weight to be given to their testimony.

Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

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

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).         Instead, 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.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

      B.    Factual sufficiency standard of review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

                                         7
clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the judgment. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently.

Id. We may not simply substitute our judgment for the factfinder’s. Johnson

v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a

different result is appropriate, we must defer to the trial court’s determination

of the weight to be given contradictory testimonial evidence because resolution

of the conflict “often turns on an evaluation of credibility and demeanor.

Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is necessary to

correct manifest injustice, we must give due deference to the factfinder’s

                                        8
determinations, “particularly those determinations concerning the weight and

credibility of the evidence.” Id. at 9.

      C.    Applicable law

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

reasonable doubt. See Tex. Penal Code Ann. § 2.01 (Vernon 2003). The penal

code describes robbery under section 29.02 as,

      (a) A person commits an offense if, in the course of committing
      theft as defined in Chapter 31 5 and with intent to obtain or
      maintain control of the property, he:

            (1) intentionally, knowingly, or recklessly causes bodily
            injury to another; or

            (2) intentionally or knowingly threatens or places
            another in fear of imminent bodily injury or death.

Id. § 29.02(a) (Vernon 2003).

      Penal code section 29.01 defines the phrase “in the course of committing

theft” as “conduct that occurs in an attempt to commit, during the commission,

or in immediate flight after the attempt or commission of theft.” See id. §

29.01 (Vernon 2003). Thus, proof of a completed theft is not required to

establish robbery. Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App.




      5
       … Under section 31.03, theft is defined as “unlawfully appropriat[ing]
property with intent to deprive the owner of property.” Tex. Penal Code Ann.
§ 31.03 (Vernon Supp. 2008).

                                          9
1996), cert. denied, 544 U.S. 1037; see also Purser v. State, 902 S.W.2d 641,

647 (Tex. App.—El Paso 1995, pet. ref’d) (stating that the actual commission

of theft “is not a prerequisite” for robbery, as the “gravamen of robbery is the

assaultive conduct and not the theft”), cert. denied, 525 U.S. 838 (1998).

      Under section 29.03, aggravated robbery occurs when a person commits

robbery as defined in section 29.02 and (1) causes serious bodily injury to

another or (2) uses or exhibits a deadly weapon. See id. § 29.03.

      D.    Legal sufficiency analysis

      In this case, the State provided evidence of Appellant’s acts while in the

course of committing theft. The State offered Appellant’s recorded interview,

which revealed that Appellant had completed a drug transaction with Rios

earlier that day and that Rios may or may not have paid him for the cocaine.

Although Appellant denied robbing Rios, Appellant stated that the confrontation

was “over drugs,” that he assaulted Rios with a “two-by-four” sized stick, and

that Rios “didn’t want to give [him] [his] money.” 6

      The State also offered testimony from the sole witness of the attack,

Rios, who confirmed that Appellant was speaking to him when he was hit from



      6
       … See Collins v. State, 800 S.W.2d 267, 269 (Tex. App.—Houston
[14th Dist.] 1990, no pet.) (holding that evidence of a creditor assaulting a
debtor for the purpose of collecting a debt was sufficient to support aggravated
robbery conviction).

                                         10
behind by two individuals. Rios stated that as he was running away, he could

feel Appellant and the two other men 7 “screaming one to another” and “pulling,

trying to get the billfold” located inside of Rios’s back pocket. Although Rios

stated that Appellant was unable to obtain the wallet, his alleged acts in

attempting to grab Rios’s wallet were sufficient to establish he was in the

course of committing theft and had intent to obtain and maintain control of the

property under the statute. See Tex. Penal Code Ann. §§ 29.01, 29.02; Wolfe,

917 S.W.2d at 275, Huerta v. State, No. 13-05-00272-CR, 2007 WL

2215952, at *2 (Tex. App.—Corpus Christi Dec. 12, 2007, pet. ref’d) (mem.

op., not designated for publication) (stating that “the jury could rationally infer

that appellant was attempting to steal [the victim’s] wallet, although he was

prevented from doing so by [the victim’s] flight”).

      Viewing the evidence in a light most favorable to the prosecution, the trial

court could have found beyond a reasonable doubt that, “in the course of

committing [a] theft” and “with intent to obtain [and] maintain control” of

Rios’s property, Appellant intentionally or knowingly caused bodily injury to Rios

when he used a deadly weapon to hit Rios.            See Tex. Penal Code Ann.




      7
      … Rios was not able to identify the other individuals who attacked him
from behind but confirmed that Appellant was present and did not warn or help
him when the attack happened.

                                        11
§§ 29.02(a)(1), 29.03(a)(2). We hold that the evidence is legally sufficient to

support the trial court’s judgment. See Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778.

      E.    Factual sufficiency analysis

      Appellant contends that the evidence is factually insufficient to support

the conviction because the State only produced one witness who actually

witnessed the incident, Rene Rios, the victim.       Appellant urges that Rios’s

testimony was “speculative at best” and his memory had “significant gaps” that

affected his credibility. Rios admitted that he had trouble remembering certain

events; however, he was able to describe details surrounding the attack,

including his trip to the store with Appellant, his brief conversation with

Appellant prior to the attack, the sensation of the object that hit his head, and

the “pulling” at his billfold pocket as he fled from the attack. See Aguilar v.

State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (stating that a conviction

may be supported by testimony of only one witness).               It was the sole

responsibility of the trial judge as trier of fact to believe or not believe Rios.

      Rios’s testimony and Appellant’s statement that were admitted into

evidence and played for the court, together with Detective Randolph’s and

Officer Fincher’s testimonies, allowed the trial court to determine that

Appellant’s conduct in participating in the attack and in his attempt to take

                                        12
Rios’s billfold fell within the statutory definitions of acting “in the course of

committing theft” and “with intent to obtain [and] maintain control of. . .

property.” See Tex. Penal Code Ann. §§ 29.01, 29.02(a).

      Viewing the evidence in a neutral light, we cannot say that the evidence

is so weak that the trial court’s determination that Appellant committed

aggravated robbery through his actions in the course of committing a theft and

with intent to obtain and maintain control of property is clearly wrong or

manifestly unjust. We also cannot say that the conflicting evidence so greatly

outweighs the evidence supporting the conviction that the trial court’s

determination is unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d

at 414–15, 417. We therefore hold that the evidence is factually sufficient to

support the trial court’s judgment. Because the evidence is both legally and

factually sufficient, we must overrule Appellant’s first point.

IV.   Double Jeopardy

      In his second point, Appellant argues that the trial court erred by

convicting him for both aggravated robbery and aggravated assault. The State

concedes that the trial court violated double jeopardy prohibitions, and we

agree.




                                       13
      A.    Applicable law

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V. Generally, this clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,

2225 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.

2006). To determine whether both offenses are the same under (3), we must

examine the elements of the applicable statutes to determine whether each

statute “requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).               Under

Blockburger, we are to focus on the statutory elements found in the charging

instruments. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008);

Parrish v. State, 869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994).

      A double jeopardy violation may be raised for the first time on appeal

when the undisputed facts show the double jeopardy violation is clearly

apparent on the face of the record and when enforcement of usual rules of

procedural default serves no legitimate state interests. Gonzalez v. State, 8

S.W.3d 640, 643 (Tex. Crim. App. 2000). For convictions involving multiple

                                       14
punishments for the same offense, the double jeopardy violation is clearly

apparent on the face of the record when the record affirmatively shows multiple

punishments resulting from the commission of a single act that violated two

separate penal statutes, one of which is subsumed in the other. See Cervantes

v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991), cert. denied, 502 U.S.

1110 (1992); Garfias v. State, No. 02-06-00398-CR, 2008 WL 2404268, at

*1 (Tex. App.—Fort Worth June 12, 2008, pet. granted) (mem. op., not

designated for publication); Perez v. State, No. 02-06-00225-CR, 2007 WL

2744914, at *6 (Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op.,

not designated for publication).

      When a defendant has been prosecuted and convicted in a single criminal

action of two or more offenses that constitute the same offense, in violation of

double jeopardy, the remedy is to apply “the most serious offense test.” The

most serious offense is the one for which the greatest sentence was assessed;

in those cases, the most serious offense is retained and the less serious offense

is set aside. Ex parte Cavazos, 203 S.W.3d at 338.

      B.    Analysis

      In this case, Appellant did not raise a double jeopardy objection during the

bench trial; however, a violation is clear on the face of the record.         See

Gonzalez, 8 S.W.3d at 643. The State relied on Appellant’s act of hitting Rios

                                       15
with a stick to prove the aggravated assault offense and part of the aggravated

robbery offense.   See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp.

2008), §§ 29.02(a)(1), 29.03(a)(2).         According to the language in the

indictment, for the aggravated assault, the State had to prove Appellant caused

bodily injury and “used or exhibited a deadly weapon” (“to wit: a stick”) and for

the aggravated robbery charge, the State had to prove this same act occurred

in the commission of a theft.      See id. § 22.01(a)(1) (defining assault as

intentionally, knowingly or recklessly cause[ing] bodily injury to another),

§§ 29.02(a)(2) (defining robbery), 29.03(a)(2) (defining aggravated robbery);

see also, Naji v. State, No. 02-06-00260-CR, 2007 WL 1266872, at *2 (Tex.

App—Fort Worth April 26, 2007, pet. ref’d) (mem. op., not designated for

publication) (stating that “there is no robbery without an assault”). Thus, the

two convictions violated double jeopardy prohibitions because the two offenses

constitute the same offense.

      We must retain the conviction for the most serious offense and set the

other aside. Ex parte Cavazos, 203 S.W.3d at 337. The judgments contain

identical sentences, 8 so we retain the aggravated robbery conviction and



      8
       … Appellant did not raise this discrepancy in his argument; however, the
reporter’s record reveals that the trial court orally pronounced a sentence of
thirty years for the aggravated robbery and ten years for the aggravated
assault; however, the written judgments state that both sentences are for thirty

                                       16
sentence and vacate the aggravated assault conviction and sentence.       See

Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007) (holding that,

when both offenses carry the same punishment, the appellate court may strike

either conviction). We retain the aggravated robbery charge because it appears

first in the indictment. See Naji, 2007 WL 1266872, at *3 (citing Ex parte

Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App. 1991)) (retaining the first

count in the indictment). We sustain Appellant’s second point and modify the

judgment to reflect only a conviction for aggravated robbery with a deadly

weapon and the sentence of thirty years’ confinement. See Naji, 2007 WL

1266872, at *3.

V.    Conclusion

      Having overruled Appellant’s first point and sustained his second point,

we modify the trial court’s judgment to vacate the conviction and sentence for

aggravated assault with a deadly weapon and reflect only the conviction for

aggravated robbery with a deadly weapon, with the sentence of thirty years’




years. The Court of Criminal Appeals has stated that when there is a conflict
between the oral pronouncement and the written judgment, the oral
pronouncement controls and the judgment must be reformed to conform to that
sentence. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.
2003). Because our disposition resolves this discrepancy, we will not reform
the judgments.

                                     17
confinement. We affirm the trial court’s judgment as modified. See Tex. R.

App. Proc. 43.2(b).

                                        PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.

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

DELIVERED: August 6, 2009




                                   18
