IN THE TENTH COURT OF APPEALS
No. 10-19-00042-CR
JUSTIN DENARD HEMPHILL, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 17-02187-CRF-272
MEMORANDUM OPINION
A jury found Appellant Justin Denard Hemphill guilty of the offense of
aggravated robbery, and the trial court sentenced him to fifty-five years’ confinement in
the Texas Department of Criminal Justice Correctional Institutions Division. Hemphill
challenges his conviction in two issues. We will affirm.
Issues
In his first issue, Hemphill asserts that the evidence was legally insufficient to
support his conviction. In his second issue, Hemphill asserts that the trial court erred in overruling his
objection to the prosecutor’s improper jury argument.1
Discussion
A. Sufficiency. The Court of Criminal Appeals has expressed our standard of
review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, 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, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "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, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating
1 Our records reflect that, despite being represented by counsel, Hemphill has filed numerous pro se documents in this Court. A party represented by counsel is not entitled to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (noting that courts are free to disregard pro se motions presented by a defendant represented by counsel); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001). As such, we will not respond to Hemphill’s numerous pro se documents filed in this Court.
Hemphill v. State Page 2 circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury 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." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A hypothetically correct jury charge for aggravated robbery requires the jury to
find that a defendant used or exhibited a deadly weapon during the commission of a
robbery. TEX. PENAL CODE ANN. § 29.03(a)(2); see also Bahena v. State, 604 S.W.3d 527, 532
(Tex. App.—Houston [14th Dist.] 2020, pet. granted). 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.” TEX. PENAL CODE ANN. § 29.02. A deadly weapon is
“a firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury,” or, “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17); see
also Johnson v. State, 509 S.W.3d 320, 322-23 (Tex. Crim. App. 2017).
Hemphill’s argument is that the evidence is insufficient to support a finding that
he was the person who committed the aggravated robbery charged in the indictment. In
Hemphill v. State Page 3 addition to the other elements of the offense, the State is required to prove beyond a
reasonable doubt that the accused is the person who committed the charged crime.
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)). Identity may be proved by either direct
or circumstantial evidence, “coupled with all reasonable inferences from that evidence.”
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
The evidence at trial reflects that the Bryan Drive-In convenience store was robbed
at approximately 9:50 a.m. on March 16, 2017. The complainant, the store owner, testified
that a man entered the store, requested a pack of cigarettes, then pulled a gun and said,
“Give me all the money or else I kill you.” The robber was wearing a dark hoodie pulled
around his face, sweatpants, white gloves, and dark tennis shoes. The complainant
identified Hemphill as the robber after viewing a photo array prepared by the police. The
complainant also identified Hemphill as the robber in court.
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IN THE TENTH COURT OF APPEALS
No. 10-19-00042-CR
JUSTIN DENARD HEMPHILL, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 17-02187-CRF-272
MEMORANDUM OPINION
A jury found Appellant Justin Denard Hemphill guilty of the offense of
aggravated robbery, and the trial court sentenced him to fifty-five years’ confinement in
the Texas Department of Criminal Justice Correctional Institutions Division. Hemphill
challenges his conviction in two issues. We will affirm.
Issues
In his first issue, Hemphill asserts that the evidence was legally insufficient to
support his conviction. In his second issue, Hemphill asserts that the trial court erred in overruling his
objection to the prosecutor’s improper jury argument.1
Discussion
A. Sufficiency. The Court of Criminal Appeals has expressed our standard of
review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, 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, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "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, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating
1 Our records reflect that, despite being represented by counsel, Hemphill has filed numerous pro se documents in this Court. A party represented by counsel is not entitled to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (noting that courts are free to disregard pro se motions presented by a defendant represented by counsel); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001). As such, we will not respond to Hemphill’s numerous pro se documents filed in this Court.
Hemphill v. State Page 2 circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury 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." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A hypothetically correct jury charge for aggravated robbery requires the jury to
find that a defendant used or exhibited a deadly weapon during the commission of a
robbery. TEX. PENAL CODE ANN. § 29.03(a)(2); see also Bahena v. State, 604 S.W.3d 527, 532
(Tex. App.—Houston [14th Dist.] 2020, pet. granted). 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.” TEX. PENAL CODE ANN. § 29.02. A deadly weapon is
“a firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury,” or, “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17); see
also Johnson v. State, 509 S.W.3d 320, 322-23 (Tex. Crim. App. 2017).
Hemphill’s argument is that the evidence is insufficient to support a finding that
he was the person who committed the aggravated robbery charged in the indictment. In
Hemphill v. State Page 3 addition to the other elements of the offense, the State is required to prove beyond a
reasonable doubt that the accused is the person who committed the charged crime.
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)). Identity may be proved by either direct
or circumstantial evidence, “coupled with all reasonable inferences from that evidence.”
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
The evidence at trial reflects that the Bryan Drive-In convenience store was robbed
at approximately 9:50 a.m. on March 16, 2017. The complainant, the store owner, testified
that a man entered the store, requested a pack of cigarettes, then pulled a gun and said,
“Give me all the money or else I kill you.” The robber was wearing a dark hoodie pulled
around his face, sweatpants, white gloves, and dark tennis shoes. The complainant
identified Hemphill as the robber after viewing a photo array prepared by the police. The
complainant also identified Hemphill as the robber in court.
The police sent still photographs from the surveillance video to others in the
department, and Hemphill was identified as the robber by an officer who previously had
contact with him. Tips from the community also identified Hemphill as the robber. After
further investigation, the police questioned Hemphill’s sister and niece. Both identified
Hemphill as the robber after viewing the store’s surveillance tapes and the still
photographs to police and in court. The sister and the niece also both testified that
Hemphill showed up at their apartment the day after the robbery with a large amount of
money.
Hemphill v. State Page 4 The manager of the beauty salon next door to the convenience store identified
Hemphill from the photo array prepared by the police as a man who had entered her
salon the day before the robbery. The salon manager testified that the man appeared to
have ducked into the salon to avoid the attention of a police officer parked across the
street. The salon manager also positively identified Hemphill in court.
Hemphill points out the discrepancies in the initial identification of the robber by
the convenience store manager, as well as the discrepancies in the testimony and
identifications of the other witnesses. However, as noted, “the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight to be given to the
testimony.” Brooks, 323 S.W.3d at 899. “The jury may choose to believe or disbelieve all
or part of a witness’s testimony, and we presume the jury resolved any conflicts in the
evidence in favor of the prevailing party.” Green v. State, 607 S.W.3d 147, 152 (Tex. App.—
Houston [14th Dist.] 2020, no pet.); see also Marshall v. State, 479 S.W.3d 840, 845 (Tex.
Crim. App. 2016) (“We defer to the jury’s finding when the record provides a conflict in
the evidence.”).
There was more than sufficient evidence from which “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt,” and
that Hemphill was the person who committed the aggravated robbery charged in the
indictment. Zuniga, 551 S.W.3d at 732. We overrule Hemphill’s first issue.
B. Improper Jury Argument. In his second issue, Hemphill argues that the trial
court erred in overruling his objection to the prosecutor’s improper jury argument. The
prosecutor stated the following during closing argument:
Hemphill v. State Page 5 The next day he comes back. And you heard some testimony about another store in the area where someone wearing the same clothes went in, just about 30 minutes before the robbery of [the complainant’s] place. But that store had glass casing all around the register area and just a little slot down here for money to pass through. So that store didn't get robbed. And although there's some video of a person in the store matching the defendant's description and wearing the same clothes, that owner didn't pay him much mind and the video was not very good.
Hemphill’s objection was overruled by the Court.
Hemphill argues that the prosecutor’s argument was not supported by the record
because there was no evidence regarding the quality of the video and the video itself was
not offered or admitted.
We review a trial court’s ruling on an objection to closing argument for an abuse
of discretion. Reed v. State, 421 S.W.3d 24, 31 (Tex. App.—Waco 2013, pet. ref’d). “A trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial
court’s erroneous ruling on a defendant’s objection to improper jury argument is a non-
constitutional error that must be disregarded unless it affects the defendant’s substantial
rights. TEX. R. APP. P. 44.2(b); Castruita v. State, 584 S.W.3d 88, 109 (Tex. App.—El Paso
2018, pet. ref’d). To determine whether an appellant’s rights were affected, the reviewing
court “must independently review the record as a whole.” Loch v. State, 621 S.W.3d 279,
282 (Tex. Crim. App. 2021).
Generally, jury argument is limited to:
(1) summations of the evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing counsel; and (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). To determine if the prosecutor made an improper jury argument, we must
Hemphill v. State Page 6 consider the entire argument in context—not merely isolated instances. See Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.—El Paso 2001, pet. ref'd). An argument that exceeds these bounds is error, but only reversible error if, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts that are harmful to the accused. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992).
Cosino v. State, 503 S.W.3d 592, 603-04 (Tex. App.—Waco 2016, pet. ref’d).
Improper closing arguments include references to facts not in evidence or incorrect statements of law. Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.—Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006). Further, an argument that invites the jury to speculate whether the defendant has committed other crimes not in evidence is improper. See Ex parte Lane, 303 S.W.3d 702, 711–12 (Tex. Crim. App. 2009); Villarreal v. State, 576 S.W.2d 51, 64 (Tex. Crim. App. 1978).
Coleman v. State, 577 S.W.3d 623, 639 (Tex. App.—Fort Worth 2019, no pet.).
The record in this case reflects that defense counsel elicited testimony from one of
the detectives who investigated the robbery regarding an event that occurred at a nearby
convenience store thirty minutes prior to the robbery at the Bryan Drive-In. The clerk in
the second convenience store told the detective that an individual dressed similarly to
the robber at the Bryan Drive-In entered the store, requested a pack of cigarettes, and
then walked out. The detective testified that the clerk was unable to identify Hemphill
from the photo array prepared by police. The detective further testified that he had seen
the surveillance video from the second convenience store but that he was unable to “make
out” the face of the individual on the video.
Although the video itself was not admitted into evidence, defense counsel elicited
testimony regarding the existence and quality of the video. The prosecutor’s statement
that “the video was not very good” is inferable from the detective’s testimony rather than
Hemphill v. State Page 7 a reference to facts not in evidence. “A prosecuting attorney is permitted in argument to
draw all inferences from the facts in evidence which are reasonable, fair and legitimate,
and offered in good faith.” Castruita, 584 S.W.3d at 108-09 (citing Cantu v. State, 939
S.W.2d 627, 633 (Tex. Crim. App. 1997)). Reviewing the record as a whole, the trial court
did not err in overruling the objection to the prosecutor’s closing argument. We overrule
Hemphill’s second issue.
Conclusion
Having overruled Hemphill’s issues, we affirm the judgment of the trial court.
MATT JOHNSON Justice
Before Chief Justice Gray, Justice Johnson, and Justice Rose2 Affirmed Opinion delivered and filed August 18, 2021 Do not publish [CR25]
2 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Hemphill v. State Page 8