                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00104-CR

BRANDON OKEITH HUTCHINS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 10-03854-CRF-361


                          MEMORANDUM OPINION


      In two issues, appellant, Brandon Hutchins, challenges his convictions for two

counts of aggravated robbery, a first-degree felony.   See TEX. PENAL CODE ANN. §

29.03(a)-(b) (West 2011). We affirm.

                                   I.   BACKGROUND

      In two counts, the indictment in this case alleged that appellant robbed Timothy

Murphy Jr. and Ashley Broussard, both employees of The Bank and Trust branch

located off of Highway 21 in Bryan, Texas. Witnesses asserted that appellant, a male,
robbed the bank while wearing a dress, ladies penny loafers, a wig, sunglasses, and

carrying an umbrella. Murphy, an assistant vice-president and bank manager, testified

that he observed appellant first enter the bank.          According to Murphy, appellant

struggled to enter the bank with an umbrella that was up. Murphy thought this odd

because it was in the middle of August, and it was not raining at the time. After

appellant entered the bank, Murphy noticed appellant’s strange apparel.                Murphy

recounted that: “It was quite obvious that it was a male. It was from their body

structure and the face.”1 Murphy further testified that although it was not normal to

have men come into the bank dressed as women, it was not abnormal either. Murphy

estimated that he had seen three men dressed as women come into his bank in Bryan in

the last year.

        Appellant proceeded to the teller counter where Broussard was working. As

Broussard began filling out a deposit slip, appellant pointed a gun at her and

demanded that she fill up a purse with money.               Broussard followed appellant’s

instructions and filled the purse with approximately $12,000 to $13,000. As Broussard

filled the purse with money, Murphy kept an eye on appellant. Murphy testified that

he tried to keep eye contact with appellant, focusing on his eyes, mouth, and the

structure of his face. Appellant’s sunglasses were not so dark that they prevented

Murphy from seeing his eyes. Murphy did not notice if appellant had any tattoos

because he was focused on appellant’s face and the gun.



        Or, in the words of Austin Powers, “That ain’t no woman. It’s a man, man!” AUSTIN POWERS:
        1

INTERNATIONAL MAN OF MYSTERY (New Line Cinema 1997).

Hutchins v. State                                                                         Page 2
        Appellant then walked over to Murphy and demanded more money. Murphy

filled the purse with another $12,000 to $13,000, which also included bait money that is

traceable. Appellant inquired about the bank’s safe; Murphy said that the safe was on a

timer and could not be opened during business hours. Thereafter, appellant instructed

Murphy and Broussard to lie down on the floor on the opposite end of the bank.

Appellant repeatedly told Murphy and Broussard “to be still and to not get up or to

look up” as he exited the bank. Murphy eventually heard appellant exit the bank.

Afterwards, Murphy locked the bank and watched as appellant struggled to walk to the

other side of Highway 21.2 Broussard called the police.

        Rolando Taylor, an oilfield worker, happened to be in the area at the time of the

incident. Taylor noted that he was fueling up his vehicle at the Speedy Truck Stop on

Highway 21 when he observed a woman walking with an umbrella even though it was

not raining. Taylor recalled that the woman walked at a fast pace across the highway to

flag down a red Jeep Cherokee. Taylor was suspicious because the woman appeared to

be a man. Thus, he memorized the license plate number of the red Jeep Cherokee.

When he heard about the bank robbery on television, he reported what he saw to police.

        Chantel Johnson testified that she was driving a red Jeep Cherokee that belonged

to her friend, Jamesia Idlebird, on the day of the incident. Idlebird arrived at Johnson’s

house on the morning of the incident accompanied by appellant. Idlebird needed to get

a part for her car, and Johnson and Idlebird had decided to go play “speed bingo” that



        2   Murphy recalled that appellant had a difficult time walking in the women’s shoes he was
wearing.

Hutchins v. State                                                                            Page 3
day. Johnson drove Idlebird’s Jeep because Idlebird was too high to drive. Testimony

revealed that appellant is a drug dealer and that he had supplied Idlebird with some

cocaine that morning. The three left Johnson’s house for Hearne, Texas. Along the

way, the group stopped at appellant’s house so that he could take a shower. Johnson

recounted that appellant was dressed normally prior to showering. However, after

showering, appellant was dressed in women’s clothes—a navy blue or black dress, a

wig, black penny loafers, and an umbrella, or in Johnson’s words, “like a girl/boy.”

The group then left appellant’s house sometime after 11:00 a.m.3 Johnson dropped

appellant off near a restaurant and inn off of Highway 21, near the location of the bank.

Johnson and Idlebird left appellant there while they ran another errand before going to

play “speed bingo.” After exiting the car, appellant opened the umbrella.

        After Johnson and Idlebird completed their errand, they drove back to the place

where they left appellant. Upon arriving, they saw appellant walking across the street.

He came up to the Jeep and tapped on the window. Johnson and Idlebird let appellant

inside the Jeep and left the scene. They dropped appellant off at a motel before they

went to play “speed bingo.”

        In her testimony, Johnson denied knowing the name of the man in the Jeep, but

she did recall that the man, like appellant, had many tattoos, including a bold dollar

sign on his forearm. After discovering that Johnson was the driver of the Jeep, police




        3  Johnson knew it was the latter part of the 11:00 a.m. hour because “The Young and the Restless”
was still on television.

Hutchins v. State                                                                                  Page 4
showed her a photo lineup that included appellant. She had no problem identifying

appellant as the man in the Jeep.

        Bryan Police Officer Shawn Davis described how appellant became a suspect in

this case. After hearing from Taylor and discovering from Idlebird that appellant was

in the Jeep around the time of the robbery, Officer Davis believed that appellant was

involved in the robbery.      Officer Davis went to the house of one of appellant’s

girlfriends to question him. When questioned, appellant claimed he did not know of

anyone who drove a red Jeep, got angry about the questioning, mentioned another of

his girlfriends, and stated that he was being falsely accused of the robbery. Appellant

admitted to being a drug dealer and cooperated with a request for a DNA sample and

photographs. Officer Davis noticed that appellant had a dollar sign tattoo, among

many other tattoos, on his arms.

        Alexis Rawls, one of appellant’s girlfriends, testified that she had seen appellant

get into a red Jeep before when she had dropped him off in the past. Rawls also

described a trip she and appellant took to Houston shortly after the robbery. While in

Houston, appellant bought Rawls a new cell phone and himself two new cell phones.

The couple then went to Pappadeaux for dinner. At the table, both played with their

new cell phones. Rawls noticed that appellant used his new cell phone to watch the

news. In particular, appellant was interested in a news report about a robbery of a bank

by a man dressed as a woman. Although Rawls and appellant joked about the robbery,

appellant soon left the table to take a phone call. Upon returning, Rawls observed that

appellant was quiet and still the remainder of the evening.

Hutchins v. State                                                                    Page 5
        Bryan Police Officer Steven Fry noted that after Rawls was contacted, appellant

called. Appellant was agitated that police had contacted Rawls. Officer Fry spoke with

appellant on the telephone for approximately an hour.           Officer Fry believed that

appellant was attempting to determine information about the investigation to see how

much the police knew about the robbery. Appellant expressed concern that people

were dropping his name, but he denied involvement in the robbery.               Officer Fry

recounted that appellant “said that he did not do this one. He also said that if he was

going to rob somebody, it wouldn’t be a bank, it would be basically somebody on the

street.” Appellant admitted knowing Idlebird, but he claimed that she had been in

prison since 2004.

        At the conclusion of the evidence, the jury found appellant guilty of both counts

of aggravated robbery charged in the indictment. The indictment also included an

enhancement paragraph pertaining to appellant’s August 30, 2004 conviction for

robbery in Robertson County, Texas. At the punishment phase, appellant pleaded

“true” to the enhancement paragraph. The jury subsequently assessed punishment at

thirty-seven years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice with a $5,000 fine for each count. The sentences were ordered to run

concurrently. Thereafter, the trial court certified appellant’s right of appeal, and this

appeal followed.

                       II.    PRE-TRIAL IDENTIFICATION OF APPELLANT

        In his first issue, appellant contends that the trial court erred in allowing a pre-

trial identification of appellant to take place in the courtroom where he was the only

Hutchins v. State                                                                     Page 6
African-American man in the courtroom. Appellant further contends that this “tainted

identification was used to unlawfully bolster the weak eyewitness identification made

by the two bank employees.”

        In an initial lineup that did not contain a photograph of appellant, Murphy did

not identify any of the photographs. In a later lineup, Murphy identified appellant as

the individual who robbed the bank. Broussard, on the other hand, acknowledged that

she could exclude everyone in the first lineup but that she could not make a positive

identification in the second lineup.

        Nevertheless, prior to trial, Broussard and Murphy recognized appellant as the

man who robbed them. At this time of the identification, the jury was not present.

Only a few lawyers and the judge were present. In any event, appellant appears to

complain that he was the only African-American male present in the courtroom at the

time of the identification, which tainted the identification.

        Regardless, appellant did not object to the pre-trial identifications made by

Murphy and Broussard. Furthermore, appellant did not object when both Murphy and

Broussard identified appellant as the perpetrator of the robbery in their testimony. To

preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the complaining

party to make a specific objection or complaint and obtain a ruling thereon before the

trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002).      This requirement ensures that trial courts are provided an

opportunity to correct any error “at the most convenient and appropriate time—when

the mistakes are alleged to have been made.” Hull v. State, 67 S.W.3d 215, 216 (Tex.

Hutchins v. State                                                                     Page 7
Crim. App. 2002). Because appellant did not object to the pre-trial identification or

Murphy and Broussard’s identification of appellant as the perpetrator of the robbery in

their testimony, we cannot say that this error has been preserved. See TEX. R. APP. P.

33.1(a); see also Wilson, 71 S.W.3d at 349. Accordingly, we overrule appellant’s first

issue.

                              III.   SUFFICIENCY OF THE EVIDENCE

         In his second issue, appellant argues that the testimony of both Murphy and

Broussard is insufficient to support the jury’s verdict.

A.       Applicable Law

         The Texas Court of Criminal Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010), abandoned the factual-sufficiency standard in criminal cases; thus,

we need only consider the sufficiency of the evidence under the legal-sufficiency

standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979).

         In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

         In determining whether the evidence is legally sufficient to support a
         conviction, a reviewing court must consider all of the evidence in the light
         most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder 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); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
         “familiar standard gives full play to the responsibility of the trier of fact
         fairly to resolve conflicts in the testimony, to weigh the evidence, and to
         draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
         U.S. at 319. “Each fact need not point directly and independently to the

Hutchins v. State                                                                        Page 8
        guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Id.

        Our review of “all of the evidence” includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.      Furthermore, 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.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “‘Such a charge [is] one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.’” Villarreal v. State,

286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240). Under a

hypothetically-correct jury charge, a person commits aggravated robbery “if he commits

Hutchins v. State                                                                       Page 9
robbery . . . and he . . . uses or exhibits a deadly weapon . . . .” TEX. PENAL CODE ANN. §

29.03. A person commits robbery “if, in the course of committing theft . . . 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.” Id. § 29.02

(West 2011).

B.      Discussion

        On appeal, appellant focuses on the evidentiary sufficiency of the identifications

made by Murphy and Broussard. We construe appellant’s sufficiency argument to

address the identity element of the charged offense.

        The State is required to prove beyond a reasonable doubt that the accused is the

person who committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex.

App.—Austin 2000, pet. ref’d) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim.

App. 1984); Rice v. State, 801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)).

Identity may be proved by direct or circumstantial evidence. Id. (citing Earls v. State,

707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex.

App.—Fort Worth 1999, pet. ref’d); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El

Paso 1986, no pet.)). “In fact, identity may be proven by inferences.” Id. (citing United

States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214

(Tex. App.—Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex.

App.—San Antonio 1995, pet. ref’d) (explaining that the jury may use common sense

and apply common knowledge, observation, and experience gained in ordinary affairs

of life when giving effect to inferences that may reasonably be drawn from evidence).

Hutchins v. State                                                                   Page 10
          The positive identification of a defendant as the perpetrator of a crime is

sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim.

App. [Panel Op.] 1978); Cate v. State, 124 S.W.3d 922, 928-29 (Tex. App.—Amarillo 2004,

pet. ref’d); see also Williams v. State, Nos. 12-11-00147-CR, 12-11-00148-CR, 12-11-00149-

CR, 2012 Tex. App. LEXIS 6338, at **15-16 (Tex. App.—Tyler July 31, 2012, pet. ref’d)

(mem. op., not designated for publication). Moreover, “[a] conviction may be based on

the testimony of a single eyewitness.” Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.—

Texarkana 2003, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.

1971)).

          Here, in open court, both Murphy and Broussard identified appellant as the

perpetrator of the aggravated robbery. See Garcia, 563 S.W.2d at 928; Cate, 124 S.W.3d at

928-29; see also Williams, 2012 Tex. App. LEXIS 6338, at **15-16. Further, the record

reflects that Murphy identified appellant as the robber when presented by police with a

second photographic lineup. In his testimony, Murphy emphasized that he tried to

keep eye contact with the perpetrator, focusing on his eyes, mouth, and the structure of

his face. Murphy also recounted that the perpetrator’s sunglasses were not so dark that

they prevented Murphy from seeing his eyes. And while Murphy did take some time

to identify appellant in the second photographic lineup, a rational juror could have

concluded beyond a reasonable doubt that appellant was the perpetrator of the

aggravated robbery based on the evidence above. See Garcia, 563 S.W.2d at 928; Cate,

124 S.W.3d at 928-29; Roberson, 16 S.W.3d at 167; see also Jackson, 443 U.S. at 318-19, 99 S.

Ct. at 2788-89; Lucio, 351 S.W.3d at 894. Broussard, on the other hand, had some

Hutchins v. State                                                                     Page 11
difficulty identifying appellant as the perpetrator based on the photographic lineups. 4

However, this is unimportant given that “[a] conviction may be based on the testimony

of a single eyewitness.” Pitte, 102 S.W.3d at 794; see Aguilar, 468 S.W.2d at 77. And to

the extent that the testimony of Murphy and Broussard contained inconsistencies, we

once again note that it is within the province of the factfinder—here, the jury—to

resolve conflicts in the evidence and to weigh witnesses’ testimony. See Chambers, 805

S.W.2d at 461.

        In addition, Johnson testified that she drove a red Jeep on the day of the incident

and that a male rode in the back wearing women’s clothes. Johnson recalled that she

dropped the male off and picked him up near the bank around the time the robbery

occurred.     When presented with a photographic lineup, Johnson had no difficulty

identifying appellant as the male wearing women’s clothes in the back of the Jeep.

Moreover, in open court, Johnson identified appellant as the male occupant of the Jeep.

Taylor testified that he saw an odd looking male dressed in women’s clothing walking

briskly from the bank to the red Jeep shortly after the robbery was alleged to have

occurred.     Furthermore, surveillance video and testimony from both Murphy and

Broussard established that the robber of the bank was wearing women’s clothing

similar to that which appellant was wearing on the day of the incident. And finally,



        4 Broussard testified that she did not identify appellant as the perpetrator in one of the

photographic lineups shown to her; however, she stated that she did “find someone who looked similar
in his facial features” and that she had hesitations about whether the person she selected was the
perpetrator of the robbery. After viewing appellant in open court, Broussard was certain that appellant
was the perpetrator of the offense. In fact, although she had seen “a good handful” of cross-dressers in
the year and a half she had worked at the bank, Broussard testified that she had no question that
appellant was the man who robbed her at the bank.

Hutchins v. State                                                                               Page 12
several witnesses testified that appellant showed an unusual interest in the robbery

and, in fact, called police to pump them for information about the investigation.

        Based on the foregoing, we conclude that, viewing the evidence in the light most

favorable to the jury’s verdict, a rational factfinder could have found beyond a

reasonable doubt that appellant was the perpetrator of this crime.           See Garcia, 563

S.W.2d at 928; Cate, 124 S.W.3d at 928-29; Roberson, 16 S.W.3d at 167; see also Jackson, 443

U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894. Accordingly, we cannot say

that the evidence pertaining to the identity element of the charged offense is

insufficient. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894;

Hooper, 214 S.W.3d at 13. As such, we overrule appellant’s second issue.

                                      IV.    CONCLUSION

        Having overruled both of appellant’s issues on appeal, we affirm the judgments

of the trial court.




                                                  AL SCOGGINS
                                                  Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 19, 2013
Do not publish
[CRPM]




Hutchins v. State                                                                      Page 13
