                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 ANTHONY WAYNE SCOTT                                              No. 08-09-00217-CR
 DAWKINS,                                         §
                                                                      Appeal from
                        Appellant,                §
                                                                   396th District Court
 v.                                               §
                                                                of Tarrant County, Texas
 THE STATE OF TEXAS,                              §
                                                                    (TC # 1093246D)
                        Appellee.                 §


                                           OPINION

       Anthony Wayne Dawkins was charged by indictment with aggravated robbery with a deadly

weapon (Count I) and aggravated assault with the same deadly weapon (Count II). A jury returned

a verdict of guilty as to both counts and assessed punishment at twenty-five years’ imprisonment per

offense. Appellant was sentenced accordingly and ordered to serve his sentences concurrently.

Appellant raises three issues on appeal. In Issues One and Two, he complains that the evidence was

legally and factually insufficient to prove the elements of aggravated robbery and aggravated assault,

respectively. In Issue Three, Appellant contends that his conviction for both offenses violates the

Double Jeopardy Clause of the United States Constitution. For the reasons that follow, we reform

the judgment in part and affirm as reformed.
                                  FACTUAL BACKGROUND

       On October 10, 2007, at approximately 6 p.m., Christopher King went to his drug dealer’s

home to give him a haircut. King was unable to finish the haircut because of all the people

constantly coming in and out of the house. He was asked to return later that night. Sometime after

1 a.m., King returned to the house, but his customer was not home. However, several other people

were in the house doing drugs and gambling and King decided to play dice while he waited. At trial,

King identified Appellant as one of the men who played in the dice game.

       After gambling for fifteen or twenty minutes, King won a $2 pot. Appellant became angry

and aggressively demanded King return his money. King refused. Appellant then left the house and

returned a few minutes later with a handgun. Once again Appellant demanded King return his

money and once again King refused. Appellant then shot King six times.

       After the shooting, Appellant took the keys to King’s car and left in the vehicle. Sometime

later, a 9-1-1 call was placed and police and paramedics arrived on the scene. King was taken to the

hospital where he was treated for his injuries. The police collected evidence including fingerprints

from King’s car, which were ultimately identified as Appellant’s prints. Appellant was charged with

aggravated robbery and aggravated assault with a deadly weapon in connection with the incident.

       Officer Reyes testified that at approximately 6:15 a.m. on October 11, 2007, he was

dispatched to a house on Asbury Avenue in Fort Worth, Texas, to investigate a possible shooting.

Upon arrival, Reyes encountered the 9-1-1 caller in the front yard. The caller told Reyes that his

friend was shot and inside the house. Reyes heard a male voice screaming, “Help me.” The officers

on the scene entered the home and found King lying on the floor bleeding from multiple bullet

wounds. As soon as the officers cleared the room, Medstar arrived to treat King. Reyes testified that


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from his expertise and experience, a firearm was used and a firearm is a deadly weapon. No weapon

was found on King.

       James Aycox, a paramedic with Medstar, testified that King had sustained six bullet wounds

which were life-threatening. Aycox treated King at the scene and then transported him to the

hospital. King never discussed the details surrounding the shooting with Aycox or his team.

       Detective Pat Henz was dispatched to the scene at approximately 6:30 a.m. Upon his arrival,

the scene had been secured, King had been transported to the hospital, and no other witnesses were

present. After obtaining a search warrant, Detective Henz returned to the scene and, together with

Officer Walles, collected evidence. Walles was in charge of the actual collection of the evidence.

Of particular relevance were the fingerprints Walles lifted from the front driver’s door and the front

passenger’s door of King’s car found abandoned a few block from the crime scene. After collecting

the fingerprints, Walles placed them on cards, secured them in an envelope, and sent them to the

crime lab.

       David Mallen, a fingerprint examiner, testified in detail as to the process for lifting

fingerprints from latent objects and running any prints found against national and state databases (the

“AFIS” system) for known suspects. During Mallen’s testimony, the State introduced Exhibit 39

into evidence. Mallen identified the exhibit as a sealed latent fingerprint envelope containing four

“lift cards,” marked as State’s Exhibits 39A-D. A “lift card” is a card used to hold an individual

fingerprint lifted from a crime scene. According to the labels on each of the lift cards, Mallen

handled the cards on October 25, 2007. On that date, he determined that out of the four cards, there

were two prints which were of the quality needed to search the AFIS system for a match, 39A and

39C. Mallen then performed a search on the two prints and recovered a list of candidates with


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Appellant’s name appearing as the number one match. Mallen compared the cards one on one with

the candidates and found what he believed to be a match between Appellant and the print on lift card

39C. He sent the results to Tammy McLean, another latent fingerprint examiner, to perform a

second comparison and verification.

       Tammy McLean testified that she received Mallen’s results, reviewed the prints, and she too

found Appellant’s prints matched those lifted from the vehicle. Outside the presence of the jury,

McLean took a fresh set of fingerprints from Appellant which were marked and admitted as State’s

Exhibit 40. She examined the fingerprints found on State’s Exhibits 39A-D and compared them to

the prints taken at recess on Exhibit 40. She then testified that the prints found on State’s Exhibits

39C and D matched those on Exhibit 40.

       Because of the extent of King’s injuries, Detective Henz waited three days before

interviewing him at the hospital. Although he did not know who the shooter was, King provided

Henz a description of the shooter: “black male, light-skinned, short, red shirt.” He also provided

Henz with a list of “street names” for people he knew were at the house the night of the shooting.

Later, Detective Henz was also given the fingerprint identification information which linked

Appellant to the crime.

       On November 6, 2007, Henz took a series of photographs, including one of Appellant, and

several potential witnesses to King. He showed King the photos in hopes of finding additional

witnesses and not so that King could pick out any one person. When King saw the photo of

Appellant, and without any hesitation, he said, “This is the one that shot me.” King then wrote out

a witness statement in Detective Henz’s presence. At trial, in open court, King identified Appellant

as the shooter.


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                                      DOUBLE JEOPARDY

       Because of its effect on Issues One and Two, we initially address Issue Three in which

Appellant challenges his convictions based on the Double Jeopardy Clause.

       The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the

Fourteenth Amendment, protects an accused against a second prosecution for the same offense of

which the accused has previously been acquitted or convicted. Brown v. Ohio, 432 U.S. 161, 97

S.Ct. 2221, 53 L.Ed.2d 187 (1977); Littrell v. State, 271 S.W.3d 273, 275 (Tex.Crim.App. 2008);

U.S. CONST . amend V, XIV. It also protects an accused against multiple punishments for the same

offense. U.S. CONST . amend V, XIV. Appellant contends, and the State concedes, that Appellant’s

convictions for both aggravated robbery and aggravated assault constitute multiple punishments for

the same offense in violation of the double jeopardy clause.

       To determine whether two crimes are the “same offense” for purposes of double jeopardy,

we focus on the elements as alleged in the charging instrument. Bigon v. State, 252 S.W.3d 360, 370

(Tex.Crim.App. 2008). Under this approach, known as the “cognate-pleadings approach,” the court

looks to the facts and elements alleged in the charging instrument, and not solely to the statutory

elements to determine whether there is a lesser-included offense of the greater offense charged. Hall

v. State, 225 S.W.3d 524, 526 (Tex.Crim.App. 2007). Whether an offense is a lesser-included

offense of the alleged offense is a question of law. Id. at 535.

       Under the Texas Code of Criminal Procedure, an offense is a lesser included offense if:

       (1) it is established by proof of the same or less than all the facts required to establish
       the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious injury or
       risk of injury to the same person, property, or public interest suffices to establish its


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       commission;

       (3) it differs from the offense charged only in the respect that a less culpable mental
       state suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise included
       offense.

TEX .CODE CRIM .PROC.ANN . art. 37.09 (West 2006).

       The indictment charged Appellant with aggravated robbery (Count I) and aggravated assault

(Count II). We focus on the elements of the offenses and find that, as charged, the counts are facially

duplicative. See Brown, 432 U.S. at 165; Littrell, 271 S.W.3d at 275. As charged, Count II

(aggravated assault) is a lesser-included offense of Count I (aggravated robbery) and as such

Appellant’s conviction for aggravated assault violates double jeopardy. See Littrell, 271 S.W.3d at

275; see also Watson v. State, 605 S.W.2d 877, 884 (Tex.Crim.App. 1979); Elizondo v. State, No.

01-07-00743-CR, 2009 WL 276754 at *3 (Tex.App.--Houston [1st Dist.] Feb. 5, 2009, pet.

ref’d)(mem. op., not designated for publication).

       When a double jeopardy violation such as this occurs, the remedy is to affirm the conviction

for the most serious offense and vacate the other convictions. Bigon, 252 S.W.3d at 372-73; Ex

parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App. 2006). Appellant was found guilty on both

counts and sentenced to twenty-five years’ imprisonment for each offense. However, since

aggravated robbery, as charged, was a first degree felony, and aggravated assault, as charged, was

a second degree felony, aggravated robbery is the more serious offense. We affirm the conviction

and sentence as to Count I (aggravated robbery) and we reform the judgment to vacate the conviction

for Count II (aggravated assault). See Bignon, 252 S.W.3d at 372-73; Ex parte Cavazos, 203 S.W.3d

at 338. Issue Three is sustained.


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                           LEGAL AND FACTUAL SUFFICIENCY

        In Issues One and Two, Appellant argues that the great weight and preponderance of the

credible evidence favors acquittal of aggravated robbery and aggravated assault. Because we hold

that Appellant’s conviction for both offenses violated double jeopardy, Appellant’s arguments as to

the evidentiary sufficiency of the aggravated assault conviction are now moot. Issue Two is

overruled in its entirety. We thus address only the arguments with respect to Issue One, the

aggravated robbery conviction.

                                         Standard of Review

        The Texas Court of Criminal Appeals recently addressed the issue of whether a meaningful

distinction exists between legal and factual sufficiency standards so as to require a separate analysis

by reviewing courts. Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). The court compared

the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781; 61 L.Ed.2d

560 (1979) with the factual sufficiency standard articulated in Clewis v. State, 922 S.W.2d 126

(Tex.Crim.App. 1996). Id. at 894. It noted that after several attempts to clarify Clewis, the two

standards are “barely distinguishable.” Id. at 894-95, 902, referencing Watson v. State, 204 S.W.3d

404, 415 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 8 n.8 (Tex.Crim.App. 2000). The

court concluded that the only standard a reviewing court should apply when faced with a sufficiency

challenge is the legal sufficiency standard. Brooks, 323 S.W.3d at 895. Having decided that no

meaningful distinction exists between the two standards, the court overruled Clewis and its progeny.

Id.

        Under the Jackson v. Virginia standard, a reviewing court must consider all evidence in the

light most favorable to the verdict, and, in doing so, determine whether a rational justification exists


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for the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899, citing Jackson

v. Virginia, 443 U.S. at 319. On appeal, a reviewing court must give deference to the jury’s

determinations as to the credibility and weight given to witness testimony because, as the trier of

fact, the jury is the sole judge as to the weight and credibility of such evidence. Id. Therefore, if on

appeal the record contains conflicting inferences, we must presume the jury resolved such facts in

favor of the prosecution and defer to that resolution. Id. at 899-900. Although deference should be

given to a jury’s findings on weight and credibility, in determining if the jury’s finding of guilt is

rational, the reviewing court must base its decision “on all the evidence.” [Emphasis added].

Brooks, 323 S.W.3d at 907.

        In applying Brooks, we review Appellant’s sufficiency claims under the Jackson v. Virginia

standard to determine whether, based on all the evidence, when viewed in a light favorable to the

verdict, a rational jury could have found the essential elements of the crime beyond a reasonable

doubt. See Brooks, 323 S.W.3d at 899, 902, citing Jackson v. Virginia, 443 U.S. at 319.

                                           Applicable Law

        A person commits robbery if, in the course of committing theft with the intent to obtain or

maintain control of another’s 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. TEX .PEN .CODE ANN . § 29.02 (West 2003). Aggravated robbery occurs when

a person commits robbery as defined in Section 29.02 above, and additionally the robber: (1) causes

serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to

another person or threatens or places another person in fear of imminent bodily injury or death.

TEX .PEN .CODE ANN . § 29.03. Under Section 1.07, the definition of a deadly weapon includes, “a


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firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or

serious bodily injury.” TEX .PEN .CODE ANN . § 1.07(a)(17)(A)(West Supp. 2010). Therefore, a

firearm is statutorily defined as a deadly weapon. See id. The essential element of an aggravated

robbery is the threat or fear of imminent bodily injury or death “generated simply by the presence

of a deadly weapon, its use or exhibition being merely incidental to its presence.” Maxwell v. State,

756 S.W.2d 855, 858 (Tex.App.--Austin 1988, pet. ref’d).

                                              Analysis

       Count I charged Appellant with aggravated robbery with a deadly weapon, to wit: a firearm.

Although the indictment charged Appellant as to Count I in two alternate paragraphs, the State

waived the second paragraph at trial, and only the first paragraph was submitted for jury

determination. This paragraph alleged that, on or about October 11, 2007, Appellant did:

       intentionally or knowingly, while in the course of committing theft of property and
       with intent to obtain or maintain control of said property, caused bodily injury to
       another, Christopher King, by shooting him with a firearm and the defendant used or
       exhibited a deadly weapon, to-wit: a firearm.

To establish the crime of aggravated robbery as charged, the State had to prove beyond a reasonable

doubt the following elements: (1) Appellant; (2) while in the course of committing theft and with

the intent to deprive the owner of that property; (3) intentionally or knowingly; (4) caused serious

bodily injury; (5) to Christopher King; (6) by shooting King; (7) with a firearm. See Robinson v.

State, 596 S.W.2d 130, 132 (Tex.Crim.App. 1980).

       Appellant broadly contends that the evidence is insufficient to establish all elements of the

crime charged and therefore the verdict was, “so manifestly unjust as to require a new trial being

granted.” But there is no dispute that on October 11, 2007, King was intentionally or knowingly shot



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six times with a handgun causing him serious bodily injuries. Nor is there any dispute that the gun

was a firearm and that King was shot in the course of a robbery. The only question presented is

whether the evidence is sufficient to establish Appellant’s identity beyond a reasonable doubt. See

Jackson, 443 U.S. at 319.

       Appellant’s entire complaint is contained in a single conclusory statement in which he argues

that King’s identification was impeached by the testimony of Detective Henz. The only reasoning

offered for this contention is that when Detective Henz first spoke with King at the hospital, King

said he did not know the perpetrator. Yet one month after the shooting, King positively identified

Appellant as the shooter from a stack of photographs.

       The jury is the sole trier of fact and as such it is in their discretion to determine the weight

and credibility to give the evidence. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.

1991). While Officer Henz testified that King stated, “he did not know who the shooter was,” he

also testified that King gave a description of the shooter. It would be a reasonable inference then,

that while King may not have been acquainted with the shooter, he saw him long enough to provide

a description and reliable identification. Further, Henz testified that King later identified Appellant

as the man who shot him while looking at a stack of photos. There was also testimony from King

in which he identified Appellant as the man he played dice with, the same man who demanded King

return his money and shot King when he refused.

       The testimony of Officer Wallace, as well as that of fingerprint examiners David Mallen and

Tammy McLean, further corroborate King’s account of the robbery by affirmatively matching

Appellant’s fingerprints to those lifted from King’s car. Based on all the evidence, a rational juror

could have found the evidence sufficient to prove the element of identity beyond a reasonable doubt.


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See Jackson, 443 U.S. at 319. Therefore, we overrule Appellant’s argument and affirm Appellant’s

conviction and sentence as to aggravated robbery.



April 6, 2011
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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