NO. ___________________

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

__________________________________________________________________

JESUS EFRAIN ABREGO,

Petitioner

v.

THE STATE OF TEXAS

Respondent

On Appeal from Cause No. 1335057D in the 371st District of Tarrant County,

Texas, Honorable Mollee Westfall,, Judge Presiding, and No. 07-14-00171-CR

in the Court of Appeals for the Seventh District of Texas

__________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW

____________________________________________________________________

Stickels & Associates, P.C.

John W. Stickels

TBN: 19225300

P. O. Box 121431

770 N. Fielder Rd.

Arlington, Texas 76012

Phone: (817) 479 - 9282

Fax: (817) 622 – 8071

john@stickelslaw.com

Attorney for Petitioner

NO ORAL ARGUMENT REQUESTED

PD-0417-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/21/2015 5:43:28 PM

Accepted 4/22/2015 10:50:05 AM

ABEL ACOSTA

CLERK
i

THE PARTIES

Pursuant to Rule 38(a) of the Texas Rules of Appellate Procedure, the

following is a complete list of the names and addresses of all parties to the trial

court’s final judgment and counsel in the trial court, as well as appellate counsel, so

the members of the court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of the case and

so the Clerk of the Court may properly notify the parties to the trial court’s final

judgment or their counsel, if any, of the judgment and all orders of the Court of

Appeals.

Trial Judge: The Honorable Mollee Westfall

371st District Court

Tarrant County, Texas

401 Belknap

Fort Worth, Texas 761966

Appellant: Mr. Jesus Efrain Abrego

TDC No. 01920746

J. Middleton Transfer Facility

13055 FM 3522

Abilene, TX 79601

Appellant’s Trial Counsel: Mr. George R. Trimber

SBOT NO. 20222600

925 8th Ave.

Fort Worth, Texas 76104-7666
ii

Appellant’s Counsel

on Appeal: John W. Stickels

TBN: 19225300

P. O. Box 121431

Arlington, Texas 76012

Appellee: The State of Texas

Appellee’s Trial Counsel: Ms. Michelle D. Dobson

SBOT NO. 24049075

and

Mr. Keith Harris

SBOT NO. 24041058

Assistant District Attorneys

401 W. Belknap Street

Fort Worth, Texas 76196

Appellee’s Counsel

on Appeal: Tarrant County Criminal District

Attorney

Appeals Division

401 Belknap

Fort Worth, Texas 76196
iii

TABLE OF CONTENTS

THE PARTIES........................................................................................................... i

TABLE OF CONTENTS......................................................................................... iii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................1

GROUNDS FOR REVIEW.......................................................................................1

I. The Seventh Court of Appeals erred when it did not find that there was insufficient

evidence to support Petitioner’s conviction...............................................................1

REASONS FOR REVIEW........................................................................................2

DISCUSSION ............................................................................................................2

ARGUMENTS...........................................................................................................4

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW: ...........................4

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:..............5

PRAYER FOR RELIEF ............................................................................................6

CERTIFICATE OF SERVICE ..................................................................................7

CERTIFICATE OF COMPLIANCE.........................................................................8

APPENDIX................................................................................................................9
iv

TABLE OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .......................................5

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)..........................................4

Jackson v. Virginia, 443 U.S. 307 (1979)..................................................................4

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993)..........................................4

Statutes

Tex. Penal Code §2.01(2003). ...................................................................................5

Rules

Tex. R. App. P. 38(a) ................................................................................................. i

Tex. R. App. P. 66.3...................................................................................................2

Tex. R. App. P. 9(4)(i)(1). .........................................................................................8

Tex. R. App. P. 9.4(e) ................................................................................................8
1

STATEMENT REGARDING ORAL ARGUMENT

Petitioner does not request oral argument in this case.

STATEMENT OF THE CASE

Petitioner’s jury trial was held in the 371st District Court of Tarrant County,

Texas, before the Honorable Mollee Westfall, Judge Presiding. (R.R. Vol. 1 – 4).

The jury convicted Petitioner for the offense of aggravated robbery. (CR. 33-38, 50;

ROA. 3, 130.) The jury sentenced Petitioner to confinement for forty (40) years in

the Institutional Division of the Texas Department of Criminal Justice. (C.R. 41-45,

50; ROA. 3, 144). Petitioner has remained in custody pending appeal. Petitioner

has remained in custody pending appeal.

STATEMENT OF PROCEDURAL HISTORY

The opinion by the Seventh District Court of Appeals affirming the trial

court’s decision was handed down on March 13, 2015. Therefore, this PDR was due

on April 13, 2015. A Motion for Leave to File PDR Late is being tendered herwith.

GROUNDS FOR REVIEW

I. The Seventh Court of Appeals erred when it did not find that there was

insufficient evidence to support Petitioner’s conviction.
2

REASONS FOR REVIEW

1. The decision of the Seventh Court of Appeals conflicts with decisions

rendered by the Court of Criminal Appeals.

2. The decision of the Seventh Court of Appeals conflicts with the decisions

of other courts of appeals.

3. The decision of the Seventh Court of Appeals so far deviates from the fair

administration of justice that a Court of Criminal Appeal’s correction is required.

See Tex. R. App. P. 66.3

DISCUSSION

Petitioner was wrongfully convicted of the felony offense of aggravated

robbery because the alleged victim of the crime misidentified Petitioner as the he

person who robbed him. The victim misidentified Petitioner as the person who

robbed him because it was too dark for the victim to see who robbed him. Thus,

without the wrongful identification, the jury would not have convicted Petitioner of

this offense.

U. U., the victim of this crime, lives in Carrolton, Texas, and works as a

financial planner for an insurance company. (4 RR 15-17). U. U. also has a hobby

as an amateur photographer who routinely contacts models on a website called

Model Mayhem. (4 RR 17-19). On the night of the robbery, U. U. contacted a
3

prospective model, M., and arranged to photograph her at her apartment in Haltom

City, Texas, so he could photograph her. (4 RR 21).

U. U. arrived at M.’s apartment at about 9:15 p.m. and set up for the

photography shoot. An unknown male was at the apartment with M. (4 RR 24). U.

U. thought the photo-shoot would take about an hour. 4 RR 26. However, it ended

up lasting a lot longer and U. U. decided to leave and he went to his car. (4 RR 26).

M. followed U. U. to the car so she could be paid. (4 RR 26-27). However, M. did

not make it all the way to the car because her friend told her she had a phone call

from her grandmother. (4 RR 26-27). Petitioner continued to his car and waited for

M. to come get paid. (4 RR 27).

M. came to the car and U. U. wrote her a check. (4 RR 28). As U. U. was

writing M.’s check, two men came up directly to the car. (4 RR 28). The first man

pulled a gun on U. U. and as told U. U. to give him whatever he had on him. (4 RR

28-29). U. U. gave the man his wallet and cell phone. (4 RR 29-30). The second man

opened the car door, ransacked the car and tool cameras, eye glasses, sunglasses,

checkbook, driver’s license, gift cards, and camera lenses. (4 RR 29-30).

The second man also took the monograms (decals) from U. U.’s car. 4 RR 30.

After the two men left, U. U. drove away, parked at a gas station under the light, and

called the police. (4 RR 34-35).
4

Sometime after the robbery, U. U. viewed six similar photographs at the

Haltom City Police Department. (4 RR 43-44). U. U. picked the person who held the

gun on him out of the photographic lineup. (4 RR 44). U. U. picked Petitioner out of

the photographic line up and identified him in court as the person who had the gun

and robbed him. (4 RR 45-46). On cross examination, U. U. admitted that it was

very dark when the robbery happened. (4 RR 51-52). U. U. also admitted that he was

focused on the weapon. (4 RR 55-56).

ARGUMENTS

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW:

When reviewing a claim of insufficiency of the evidence, the appellate court

must determine, after considering all the evidence in the light most favorable to the

verdict, 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 (1979);

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). In conducting this

review of insufficiency, the court does not reevaluate the weight and credibility of

the evidence, but only ensures that the jury reached a rational decision. Muniz v.

State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Whether the evidence satisfies

the Jackson test is a matter of law. The Jackson v. Virginia legal-sufficiency

standard is the only standard that a reviewing court should apply in determining
5

whether the evidence is sufficient to support each element of a criminal offense that

the State is required to prove beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010).

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:

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

doubt. Tex. Penal Code §2.01(2003). According to the evidence adduced at trial,

there is both factually and legally insufficient evidence for the jury to have found

beyond a reasonable doubt that Petitioner committed the indicted offense. As a

result, this Court should overturn his convictions and order an acquittal.

A person commits the criminal offense of aggravated robbery if the person

uses threats force to commit a theft and uses or exhibits a deadly weapon. Tex. Penal

Code §29.03(1994). The State failed to prove each and every element of the offense

charged. Specifically, the State failed to prove that Petitioner was the person who

committed the offense in question because of a mistaken identity and/or

misidentification.

U. U., the victim of the robbery, was not able to adequately identify the person

who robbed him because it was too dark to see. Therefore, the State failed to prove

each and every element of the offense charged because there is insufficient evidence

to show that Petitioner was one of the people who robbed U. U. evidence clearly
6

shows that Petitioner was living at the Gardenia Street residence on As a result, there

is insufficient evidence to sustain Petitioner’s conviction and this court must reverse

his conviction.

The Seventh Court of Appeals erred when it did not find that there is

insufficient evidence to sustain Petitioner’s conviction and this court should reverse

Petitioner’s conviction.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that this Court grant discretionary review and allow each party to fully brief and

argue the issues before the Court of Criminal Appeals and that upon reviewing the

judgment entered below, that this Court reverse this cause and remand it for a new

trial.
7

Respectfully submitted,

Stickels & Associates, P.C.

P. O. Box 121431

770 N. Fielder Rd.

Arlington, Texas 76012

Phone: (817) 479 - 9282

Fax: (817) 622 – 8071

john@stickelslaw.com

BY: /S/ John W. Stickels

John W. Stickels

State Bar No. 19225300

Attorney for Jesus Efrain Abrego

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has

been furnished to counsel for the State via hand delivery and on the State Prosecuting

Attorney via regular mail on this 121st day of April, 2015.

/S/ John W. Stickels

John W. Stickels
8

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App. P.

9.4(i)(2) because it contains 1,707 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9(4)(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

because it has been prepared in proportional spaced typeface using Windows

Word software in Times New Roman 14-Point text and Times New Roman

12-point font in footnotes.

/S/ John W. Stickels

John W. Stickels
9

APPENDIX

1. Opinion of the Seventh Court of Appeals
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00171-CR 

JESUS EFRAIN ABREGO, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 371st District Court 

Tarrant County, Texas 

Trial Court No. 1335057D, Honorable Mollee Westfall, Presiding 

 

March 13, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Jesus Efrain Abrego, appeals the trial court’s judgment in which he 

was convicted of aggravated robbery and sentenced to forty years’ imprisonment.1 On 

appeal, he challenges the sufficiency of the evidence to establish that he was the 

individual who committed aggravated robbery. We will affirm.

 

1

See TEX. PENAL CODE ANN. § 29.03 (West 2011).
2

Factual and Procedural History

Financial planner, Umer Usman, is also a photography hobbyist, and he met with 

a model named Megan Finster through a photography networking site. In July 2013, 

the two met at Finster’s apartment for a photo shoot that lasted about two hours. 

Usman prepared to leave, and he and Finster were walking together to Usman’s car

discussing future photo shoots when Finster got a phone call and briefly went back 

inside her apartment. Usman waited near his car for her to come back out so that he 

could pay her per their agreement. As the two resumed their discussion about a future

shoot, two men—one wielding a gun—approached Usman and robbed him of most of 

his belongings, including his wallet, checkbooks, cell phone, glasses, camera, 

photography equipment, car decals from his regular job, and even a pack of energy 

drinks. The two men ran from the car, and, as they did so, the gunman kept stumbling 

and dropping items. During that less than graceful getaway, Usman was able to get a 

good look at the perpetrators; at one point, the gunman stopped to look for a dropped 

item and looked directly at Usman.

Usman directed Finster to call the police, and he drove away from the apartment 

complex thinking she had done so. He parked in the street by a nearby gas station, 

turned on his hazard lights, and flagged down Haltom City police officer Brian Matos as 

he passed by.2 Usman described the encounter to Matos, who went with Usman to the 

scene and spoke with Finster there as well. During his interaction with Finster, Matos 

noted that her behavior and demeanor were atypical of a recent victim of an aggravated 

 

2

Apparently, Finster made no attempt to summon police, and it was coincidence that Matos 

happened to be passing by the area and noticed Usman signaling for assistance.
3

robbery. He described her nervousness and her reluctance to share information with 

him as “very strange.” While the two talked, he also noted that someone named 

“Bullfrog” kept calling her phone.

Matos turned over his report to the assigned detective, and, by the next day, the 

police had prepared a photographic line-up from which Usman was able to identify 

appellant. Usman indicated to the detective administering the photographic line-up that 

he was seventy percent certain that the individual he identified was the gunman who 

had robbed him the previous day.

Three days after the robbery, Officer Jason Rogers was on patrol when he 

noticed that a vehicle was being driven erratically and lunging forward in such a way 

that Rogers thought the driver might be having mechanical problems with the vehicle. 

He reported to dispatch that he was on a “motorist assist” call. He approached the 

vehicle and learned that the problem was the driver’s inexperience with driving a vehicle 

with a manual transmission. As he was dealing with the situation, Rogers also 

recognized a passenger in the car as appellant, whose nickname—Bullfrog—is familiar 

to Haltom City police and knew that a warrant had been issued for appellant in 

connection with the aggravated robbery. Rogers arrested him. Appellant was charged 

and convicted of aggravated robbery and sentenced to forty years’ imprisonment. He 

has appealed that conviction, contending the evidence was insufficient to support it. We 

will affirm.
4

Standard of Review and Applicable Law

In assessing the sufficiency of the evidence, we review all the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in 

character, weight, and amount to justify a factfinder in concluding that every element of 

the offense has been proven beyond a reasonable doubt is adequate to support a 

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful 

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no 

higher standard of appellate review than the standard mandated by Jackson.” Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate 

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07 

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d 

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single 

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s 

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.

Therefore, when the evidence would support conflicting inferences, we must

presume that the factfinder resolved the conflicts in favor of its verdict and must defer to 

that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) 

(citing Jackson, 443 U.S. at 326). The deference we are required to give a jury’s verdict 

is perhaps most acute when it depends on the jury’s evaluation of the credibility of 
5

witnesses and the weight to be given their testimony. See Speed v. State, No. 07-13-

00034-CR, 2015 Tex. App. LEXIS 171, at *6 (Tex. App.—Amarillo Jan. 9, 2015, no pet.)

(mem. op., not designated for publication) (citing Brooks, 323 S.W.3d at 894).

Evidence as to the identity of the perpetrator of an offense can be proved by 

direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 

1986) (en banc) (discussing identity of perpetrator of robbery). A victim’s positive 

identification of a defendant as the perpetrator is sufficient to support a conviction. Cate 

v. State, 124 S.W.3d 922, 928–29 (Tex. App.—Amarillo 2004, pet. ref’d) (citing Garcia 

v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978), and Lopez v. State, 

815 S.W.2d 846, 849 (Tex. App.—Corpus Christi 1991, no pet.)); see Johnson v. State, 

176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

Analysis

The record contains direct evidence supporting the conclusion that appellant was 

the gunman who perpetrated the aggravated robbery. Usman testified that he was able 

to get a good look at the gunman as the two men fled the scene. Usman viewed a 

photographic line-up the very next day and identified appellant as the gunman of the 

duo who robbed him in the parking lot. At that time, he was seventy percent certain of 

his identification; he was not absolutely certain, but this identification is evidence from 

which the jury could assign its weight of the evidence going to identity. Further, Usman 

identified appellant in court as the gunman, and he was “[p]ositive” of his in-court 

identification. This unequivocal in-court identification is more direct evidence from 
6

which the jury could have determined that appellant was one of the men who robbed 

Usman. See Johnson, 176 S.W.3d at 77; Cate, 124 S.W.3d at 928–29.

Going even further, Usman’s identification of appellant as one of the perpetrators

is consistent with other, circumstantial evidence supporting the conclusion that it was 

appellant who committed the robbery. See Earls, 707 S.W.2d at 85. During his 

investigation, Officer Matos noticed that someone identified as Bullfrog called the 

suspicious-acting Finster several times shortly after the robbery. He noted the name, 

apparently one rather familiar to Haltom City police, and passed along that information 

to the detective in charge of the case. That Usman independently identified the gunman 

as appellant, who became quickly and closely connected by nickname to the incident, 

buttresses appellant’s connection to the robbery and serves as additional, circumstantial

evidence supporting the jury’s determination that appellant was one of the perpetrators

of the aggravated robbery.

Because the jury is the sole judge of the credibility of the witnesses and the 

weight to be given their testimony and because resolution of conflicts or inferences 

therefrom lies within the exclusive province of the jury, it may choose to believe all, 

none, or some of the evidence presented to it. See Lancon v. State, 253 S.W.3d 699, 

707 (Tex. Crim. App. 2008); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 

1995) (en banc). Here, there is sufficient evidence from which the jury could determine 

that appellant was one of the men who robbed Usman. We overrule appellant’s sole 

point of error.
7

Conclusion

Having overruled appellant’s sole point of error, we affirm the trial court’s 

judgment of conviction. See TEX. R. APP. P. 43.2(a).

Mackey K. Hancock

 Justice

Do not publish.