## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_________________

__________ No. 02

- 23

- 00282

- CR

____ _____________________ __

On Appeal from the 213th District Court Tarrant County, Texas Trial Court N o. 1722063

Before Sudderth, C.J.; Womack and Walker, JJ. M emorandum Opinion by Chief Justice Suddert h 

### R OBERT 

### E LLIOT 

### H OPKINS 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Robert Ell iot Hopkins ch all enges his conviction for aggravated
assault of Carol Boyd with a deadly weapon

. See Tex. Penal Code Ann. § 22.02(a)(2)

. He argues that , because he testified that he had not threaten ed Boyd , the e vidence was
in sufficient to support his conviction , and the tria l court should have g ranted his
motion for a directed verdict

. But Boyd testified that Hop kins had , in fact, threaten ed
to kill her with a knife , and the jury ’ s verdict reflects that it chose to believe Boyd ’ s testimony over Hop kins ’ s . Because it wa s the sole provin ce of the jury to decide
whic h witness to believe , and because Boyd ’ s testimony

— particularly when take n

to gether with other corroborating evi dence

— was sufficient to support the ver dict , we will affirm.
I
. Backg round
Th e only two witnes ses to the aggravated assault

— Boyd and Hopkins

— had radically different recollections of the event

. A
. Boyd ’s Version Boyd testified that she had been close friends with Hopkins ’ s moth er , and that
when Hopkins ’s mother had needed assistance wit h H o pkin s , Boyd had offer ed to help. Boyd brought Hopkins his social security income eac h Saturday , she he lped him3

with groceries and similar chores , and she assumed an informal role as landlord on
be hal f of Hopkins ’s mother , who owned the home where Hopkins lived

. 1
A week before the inc ident , Boyd had discovered that someone was living with Hopkins . Accordin g to Boyd, when she reminded Ho pkins of the house rule that he
could not have roo mmates , Hop kins “ got really u pset about it

. ” A few days later, he
dialed Boyd ’ s pho ne number repeatedl y 2 and “ called [her] a f***ing b  , ” saying
that “ [n] obody tells [him] what to do

. ” The following Sat urd ay , whe n Boyd returned to Hopkins ’ s home as usual , she

o pene d the door to find the hou se in disarray with sheetrock on the floor and hol es in
the w all s . She aske d Hopkins what had happened and told him that “ this [wa] s not

o ka y . ” In response , Hopkins “ star ted cussing at [her] , ” he “ pulled a knife , ” he raised
it a bove his head, and he “ start e d towards [her] ” while saying that “ nobody tells him
what t o do ” and threatening that he was “ going to kill [her]

. . . f** * *** b** **

. ” Boyd
used her keychain of mace to spray Hopkins and fled out the front door , but Hopkins
follow ed her on to the porch

. B ecause Hopkins was positioned between Boyd and the

s tairs t o the front gate, she sp rayed him with the mace again so that she could run

1 Although Hopkins ’ s mother provided a house for him to live in , according to Boyd, she had asked Boyd to “ to tell [ Hopkins ] that [

Boyd ] own [ed] it , or [Hopkins would ] d estroy i t. ” At trial, Hopkins confirmed that he had been told that Boyd
ow ned th e hous e .

2 Bo yd explained that Hopkins had bo rrowed another person ’s phone to call her be cause he had dest royed his own phone in a nger
. At trial, Hopkins confirmed that he had “ thr [o w n] [his phone] against th e wall and broke [n] it ” out of ange r
.4

down the front steps and out to her vehicle. Boyd later r ecalled how , a s she ra n, Hopkins had c ontinued “yell i ng a t [her], ” “calling [her] names ” and sayin g “he [ wa] s going to kill [her] ” while holding up his knife. S he t old the jury th at she had in deed
believe d that Hopkins was going to kill her that day

. At trial , Boyd told the jury that
she no longer helpe d with Hop kins

. B
. Hopkins ’s Version Hopkins remembered things differently . He testifi ed that he had not been angry or upset when Boyd told h im that he could n ot have a room mate an d that he
had responded to Boyd “in an appeasing manner and ti midly

. ” H e claimed that Boyd “kept yelling at [him] for over a week after [the room mate] had been moved out , ” so

ev en though h e had not been up set initial ly, he had “ brooded on it afterwards ” and

“ kick ed holes in the wall ” out of anger

. As for t he day of the incident, Hopkins r eca lled that , wh en Boyd came by the
house , she saw t he h oles in the w all s and told him to “get out, ” prompting an
argument about wh e ther sh e was required to take legal steps to evict him. Hopkins
denie d threatening Boyd , denied hold ing h is knife over his head, and denied cha sing
her out of the h ouse . To the contrary, he claime d t h at , as they were arguing, Boyd “started moving towards [him ] in an aggressive manner ” w ith “a threatening look and body posture , ” s o he “took the knife out of [his] pocket [, ]

. . . took a step backwards [,]
and

. . . said [ ‘ g]et away from me. ’ ” He explained that he had pulled the knife because
he “thought [Bo yd

] was going to smack [him] around and humiliate [him ] , ” though he5

conceded on cross

- exami nation t ha t she had never smacked him around or h umiliate d
him in the past

. Regard less, according to Hopkins, Boyd had responded by sprayi ng him “gratuitously ” with mace while continuing to arg ue with him about evi ction.
C. Trial and Verdict
A jury h eard the se c onflicting recollections from Boyd and H o p kins , and it also
heard testimony from two police officers who had responde d to Bo y d ’s call on the day of the inc ident

. 3 The officers testified that Boyd had been “ frantic, f ea rful, crying, [and] visibly shaken ” w hen they arrived and that, when Boy d saw Hopkins in the
street and pointed him out , Hopk ins jumped a fence into h is backyard to get away. 4
A ccording to th e officer s , Hopkins had a k nife in his pocket when he was detained,
and he “made some statements that he wanted to [or ]

. . . that he was going to kill [Boyd ], ” such a s , “ I ’m goi ng to get her good, she ’s dead mea t
. ” This specific

statemen t was ca ptured on one of the officer ’s body

- camera video s, and it was replayed for the jury

. 5

3 Boy d test ified that , after leaving Hopkins ’ s house , she called Hopk ins ’ s mo ther and then the police

.

4 When Hopkins was asked why he had jum ped the fence when the police ap proached him, he st ated that he “ was expecting them to see . . . things her way and tak e [him ] to jai l

. ”

5 The videos als o captured Boyd ’s frightened de mean or , showed her telling th e officers what had happened , and recorded Hopk ins jumping the fence and the officers detaining him

.6

Although Boyd moved for a directed verd ic t after the State res ted its case, the
trial court denied the mot ion. The jury then convicted Hopkins of co mmitting

ag gra vated assault by intentionally or knowingly threaten ing imminent bodily injury to Boyd whil e usi ng or exhibit i ng a de ad ly weapon

. See id

. § § 22. 01(a)(2), .02(a)(2). After the trial court heard punishment evidence , it sentenced H opkins to four years ’

con finement. Hopki n s appeals, challe nging the trial court ’ s failure to grant a directed verdic t
.

I I
. Standard of Rev i ew

“ [A] motion for directed verdict is essentially an evidentiary

- sufficiency challenge, ” so ap pellate revie w of such a motion is akin to a review of t he su fficiency
of the evidence

. Blankenship v. State , No. 02

- 19

- 00069

- CR, 2023 WL 8267709, at *2 (Te x. A pp.

— Fort Worth Nov. 30, 2023, no pet.) (mem. o p. on remand , not designated for publ ication ) ; Je nnings v. State , No s . 02

- 21

- 00161

- CR, 02

- 21

- 00162

- CR,
20 23 WL 2179466, at *1 (Tex. App.

— Fort Worth Feb. 23, 2023, no pet.) (mem. op.,

n ot designated for publica t ion); see Williams v. State , 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)

. W hen review

ing the s ufficiency of the evidence , we view all the evidence in the
l ight most favora ble to the verdict to determine whether any rational jury could have
found t h e cr im e ’s essential elements beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 9 9 S. Ct. 2781, 2789 (1979) ; Metcalf v. State , 597 S.W.3d
84 7, 855 (Tex. Crim. App. 2020) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim.7

App. 2017). The jur

y alone resolves conflicts in the evidence and d etermines the weight t o assign to that evidence

. See Tex. Code Crim. Proc. Ann. art. 38.04; Metcalf , 597 S .W .3d at 855 ; Quee

man , 520 S .W.3d at 622. “ T his means that the jury can believe all, some, or none o f a witness ’ s testimony

. ” Metcalf , 597 S.W.3d at 855

. W e may not

u surp the j ury ’s role by re

- e valuating the e vidence and su bstitu ting its judgment with

o ur own . Queeman , 520 S .W.3d at 6 2 2 ; see Zimmere r v. State , No s . 02

- 22

- 0018 0

- CR , 02

- 22

- 00181

- CR , 02

- 22

- 0018 2

- CR , 02

- 22

- 0018 3

- CR, 02

- 22

- 0018 4

- CR, 2023 WL 6152466, at * 6

– 7 (Tex. App.

— Fort Worth Sept. 21, 2023, pet. ref ’d) (m em . op., not designated fo r public at

ion)

. I II
. Sufficiency of the Evi dence Hopkins contends that the trial court should have granted his motion f or dire c ted verdict because the evidence was insufficient to prov e that he threatened Boyd with a knife , much less that he did so with the requ is ite inten t
. 6 See Tex. Penal
Code A nn. §§ 2 2 .01(a)(2) , .02 (a)( 2)

. Although he acknowledges that “ there was
d isputed evidence , ” he p oints to his version of events and

— implic itly chall eng

ing t he

6 I n Hopkins ’ s statement of the issue presented, he frames t h e que stion as a challenge to the evidence of his mens rea , claiming that there was “ insufficient evidence to establish that [he] acted i ntentionally or kno wingly. ” [C apit aliz ation altered.] But the substance of his br ief addresses the jury ’ s general fai lure t o believ e his tes t i mony that he did not thre aten Boyd at all

. In an effort to reach the merits of Hop kins ’ s argument, we libe rally construe his brief as raising the broader suffi c iency issue

. See Tex. R. App. P. 38.9

.8

jury ’s failure to believe him

— c onten ds that “[i]t can logi call y follow ” f rom his testimony that he did no t intentionally or knowingly threaten Boyd

. But wh a t “ can logically follo w ” fro m a wholesale adop tion o f Hopkins ’s

t estimony is not the question. The jury was presented with confli cting testim ony

— as
Ho pkins a ckno wledges

— and “ as with so many

. . . cases, the verdict turn [ed] on which evidence the jury chose to believe

. ” Ofuru m v. State , No. 02

- 17

- 00134

- CR, 2018 WL 1865877, at *5 (Tex. App.

— Fort Worth Apr. 19, 2018, no pet. ) (mem. op., not designated for public atio n) (holding evidence sufficient w h en defen dant denied
interfer ing with emergency call but “ the jury was entitled to believe all, some, or none of his testimon y ” ) ; s ee Blankenship , 2023 WL 8267709, at *3 (stating th at, “ [a] lthough [the defendant] disput ed [ the co mplain ant ’s ] testimony, the factfind er judged the credibility of the evidence and was not obliged to believe h im ”)

. T he verdict re flects
that the jury chose to believe Boyd ’s testimony over Hopkins ’s , and we canno t second

- guess that credibility deci sion on appeal

. S ee Curry v. Stat e , 30 S. W.3d 394, 406 (Tex. Crim. App. 2000) ( stating that , in sufficiency review, the appellate court

“ resolve [s] inconsistencies in the testimony in favor of the verdict ” ) ; Zimme re r , 2023 WL 6152466, at *7 (

recognizi ng t hat “ we cannot act as the ‘ thirtee nth juro r ’ ” or “ re

evaluate the evidence ’ s weight and credibility ” ) ; Rickard v. St ate , No. 02

- 18

- 00350

- CR, 2019 WL 4866037, at *5 (Tex. App.

— Fort Worth Oct. 3, 2019, pet. ref’d) (m em. op., not designated for publicatio n ) ( noting that, “ [b] y its verd ict , th e jury h as shown that it
chose to believe [the complai n ant ’s] testimony ”)

.9

The r eal question , then, i s whether a rational jury , having resolved the
testimonial conflicts against Hopkins , had more than a modi cum of ev iden ce to find beyond a reasonable dou bt that he inte nti onally or knowi ngly threatened Boyd with imminent bodily injury while us ing or exhibi ting a deadly weapon

. See Tex. Penal
Code Ann. § § 2 2 .01(a)(2) ( defining as sa ult by threat) , .02 (a)( 2) (defi ning aggrav ated assault) ; see also Queeman , 520 S. W.3d at 622 ( reciting standard of review that evidence
is insufficient if t here is no or merely a modicum of evidence of an e ssent ial element,
or if the evidence con clusivel y establishes a reasonable doubt )

. T h e answ er i s y e s . Bo yd testified that H opkins threatened to kill her while holding a knife over his head, that he f

ollo wed he r outside and continued issu ing this threat wh en she

a ttempted to flee the house, and that she tho ught he was going to kill her

. S e e Sc hmidt
v. State , 232 S.W.3d 66, 68

– 69 (Tex. Crim. App. 2007) ( declining to decide whe ther
assault by threat require d evidence that victim perceived threat but noting victim ’ s perception of threat as evidence suppor ting jury ’ s finding that threat was m ade )

. Her
testi mony was corroborated not only by the responding officers ’ testimony but a lso by their body

- camera foot a ge . The footage show ed Bo yd ’s frightened de meanor on the day of the incident, her descrip tion of ev ent s in a mann er subst antially simil ar to her testimony , and Hopkins ’s video

- recorded statement that he would “ get her good,
she ’s dead mea t
. ” This constit uted far more than a mo d icum of evidence to support
the jury ’s co nclusion that Ho p kins intentionally or knowingly threatened imminent
bo d ily i njury to Boyd while using or exhibit ing a knife

. S e e Je nnings , 2023 WL 2179466,10

at *9

– 10 ( h olding evidence sufficien t in aggravated assault case becau se the j ury could
have chosen to believe complainant s ’ testimony rather t han defendant ’s statement s to
th e police) ; see also Zimmerer , 2023 WL 6152466, at * 6

– 7 (hol ding evidence su fficient when jury chose to b elieve c ompla inant ’ s testimony over defendant ’s claim of
i nnocen ce) ; Rick ard

, 201 9 WL 4866037, at *5 ( holding evidence sufficie nt w hen jury
chose to b el

ieve complainant ’s testimo ny over defendant ’s assertion s of innocen ce )

. T he evidence was th us suf ficient to s upport H op kins ’s conviction, and because it was, the trial court did not err by den ying Hopkin s ’s motion for a directed verdic t. We overrule Hopki ns ’ s sole issue.
I V
. Conclusion Having overruled Hopkins ’s sole appellate issue, w e affirm the trial court ’ s judgm ent of conviction

. T e x. R. App. P. 43. 2 ( a )

.

/s/ Bonnie Sudderth
Bonnie Sudd er th Chi ef Ju stice

Do Not Publish Tex. R. App. P. 47.2(b )
Delivered : May 30 , 2024