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

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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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 

 

1See Tex. R. App. P. 47.4.
2

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 

 

2Brooks 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)).
3

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.

6See 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).

7Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
4

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).

10Id. § 31.03(a), (b).
5

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 
6

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
7

(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

 

11Id. § 12.35(c).

1212 S.W.3d 808, 811–12 (Tex. Crim. App. 2000).

13Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011).
8

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