### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00436
- CR

Joshua Aaron Bishop , Appellant

v. The State of Texas , Appellee

FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. 78781 , THE HONORABLE FANCY H. JEZEK , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Joshua A ar on Bish op appeals his conviction f o r aggravated robbery with a deadl y weapon, arguing that there is insufficient evidence that he c om mitted the offense. See Tex. Penal Code § 29.03(a)(2). We will affirm.
BACKGROUN D

On F ebruary 12, 2018, at approximately 6 p.m., a Bla ck ma l e e ntered a Kille en convenience store known as “ Mickie ’ s ” carrying a backpack and a s awed

- off s hot gu n. His face was partly obscured by a ma sk printed with a whi te s kull. Witness es testified that he w as between 5 ′ 7 ′′ and 5 ′ 9 ′′ a nd that he wore a dark shirt, khaki pants, and C onverse ten nis sh oes. He
demanded money from the cash register, which the two attendants provided

.2 The encounter was rec orded by store cameras, and still images were provided t o the Kill een Pol ice Department. The images reve a l ed that the man had pointed the shotgun at the
two attendants and the n made a menacing gesture before fleeing the scene.

The next day Officer Travis Akers o f t he Killeen P olice D epartment was attempting to locate a stolen vehicle

. Officer Akers later testified t hat w hen he attempted to stop the vehicle, it fled at speeds of up to 85 miles per hour in a residential area near schools. Officer
Aker s testified that he ultimately lost sight of the vehicle.

Fellow o fficer Mati as Smith soon joined th e chase. He exp l aine d:
I was running school zones around the time frame when the incident started. Monitoring my radio, I heard Officer Akers get involved in a vehicle pursuit with a vehicle that had a stolen license plate attached to it. The location where he was pursu i ng t he vehicle was actually in an active school zone at the time frame. Me being the on

- call traffic investigator for that week, I was kind of concerned because, you know, it ’ s a high

- speed pursuit, [and] he was in a school zo ne. So I got onto the radio and advised the officer pursuing the vehicle, hey, just be careful, you ’ re in a school zone

.

He estimated that this occurred at “ around three

- ish , ” when children would be walking home
from school. Shortly thereafter , Of ficer Smith found the abandoned veh i cle with both front
doors open but no one inside . Offic er Smith testified that he not iced t hat “ t here was a book bag
in there that was black and had some white coloring on it, and then I also noticed some shotgun
sh e lls

. ” He explained that t hese “ were in pla i n vi ew ” and elaborated on the significance o f the backpack :
[I] t was the day prior or the two days before that, one of the CID detectives actually sent out an e

- mail with a picture of the backpack that was invol v ed in some robberies. So I was I like, man , it l ooks just like the backpack. So I went ahead and contacted CID and let them know what I

-- what I found

.3

He also ex plained that th e presence of the shotgun shells was sign ificant because a sawed

- off shotg un had been reportedly used in at least on e o f the robberies.

S ec urity video from a nearby home revealed a W hite male leaving the vehicle ’ s driver ’ s s eat and a B lack male leaving the passenger side

. The passenger was of medium build, wearing the same clo thi ng seen in the robb ery video . He was also c arrying a sawed

- off sh o tgun.
The video revealed him running to a fen ce, throwing something over the fence, and then jumping
to the far side of that fence

.

The driver, meanwhile, entered a nearby residence. O ffi cers cal led for back

- u p , and an ei ght

- hour st and off ensued

. 1 After the standoff ended with the driver placed under arrest ,

a passerby

— wearing the same clothing seen in the robb ery video and later revealed t o be Bishop

— approached Officer Zachary Bias t o a s k what had tr anspired

. Officer Bias later
testified that Bishop indicated that he live d in the neig hborhood but that Bias bec ame suspicious
when Bishop seemed uncertain of which house he lived in and was unable to s pell the name he
used to identif

y hi mse l f. Officer Bia s also noticed that Bishop matched the images of the
passenger that had fled the vehicle.

Af te r offering two false names to identif y himself, Bishop was identified through fingerprinting and then arre s ted f or failure to identify. Upon r evi e w of the videorecording of the aggravated rob bery, and based on the reco very of the b ackpack , the mask, and the sawed

- off shotgun, a detective read Bishop his Miranda rights

. The de tective then asked Bishop if t h e mask was his. Bishop denied it was h is b ut refused to give a DNA sample to allow for testing

. He conceded, however, that both ba ckpacks from the car w ere his and that he had a shotgun that
he had thrown away when he fled the car
. And when a detective commented that no one had

1 Bishop did not partic ipate in the standoff.4

been injured in t he robbery, the appellant responded “Yes, I know

. ” When shown the video from
the convenience stor e , Bishop acknowledged that if a jury saw it , the ju rors would find him guilt y. During his time at the p o l ice department , Bish op drank from a cup that he th e n discarded
but was recovered by officers. The driver was also interviewed as p art of the investigati on.

About a month later, a retired army veteran who lived near the fence the passenger had ju mped over fou n d a sawed

- off shot gun hidden on hi s p atio. H e noti fied poli ce, and officers recognized it as the s hotgun depicted in the video recording of the robbe ry.

The Department of Public Safety ’ s laboratory obtained DNA profiles from the
masks and the s hotgun and c ompared t hose profiles to DNA profiles rec o ver e d from the disposable cup s Bishop and the driver had discarded at the station. The DNA analys t testi fied
that the test on the mask revealed DNA profiles consistent with Bishop , the driver , and an
unknown thir d party. The shotgun had DNA profiles cons ist e nt with Bishop and the driver

. Officers also recovered from social media a “selfie” of Bishop wearing the distinctive mask used in the robbery. While the attendants from the convenience store robber y could not d e finitely identify Bishop as the perpet rat o r , they were shown the shotgun, back pack, mask, and clothing and agreed they were “si milar” to that worn an d employed by the robber.

A grand jury indicted Bish op with the offense of aggravated robbery with a
dead l y weapon
. The indictment also alleged tha t he had a p ri or conviction of the felony offense of aggra vated assault on a public se rvant

. The case was tried to jury, which found Bishop guilt y
. Bishop then entered a ple a of “true” t o the enhancement , and punishment was set by the trial
court at 2 0 y e ars in the Texas Department of Criminal Justice Institutiona l Division. Bishop
fi led timely notice of appeal

.5 DISCUSSIO N
In a single issu e on appeal, Bishop contends, “ There was insufficient evidence to convict Bishop of aggravated robbery with a dead ly w eapon becau se there was insuffici ent evidence to identify Bishop as the individual who committed the aggravated robbery. ”
We disagree

. Wh e n reviewing a legal

- sufficiency challenge, we view the evidence in the light
most favorable to the verdict to det erm i ne whether “any rational trier of fact could have
found the essential elements of the c rime beyond a reasonable doubt.” See Brooks v. Sta t e , 323 S.W.3d 893 , 902 n.19 (Tex. Crim. App. 2010) ; see also Jackson v. Virginia , 443 U.S. 3 07 (1979)

. The jury is t he sole jud ge of the credibility of witnesses and the weight to be assigned to their testimonies, and we do not usurp this role by substit u t ing our judgment for that of the jury.
See Brook s , 323 S.W. 3d at 899. When the record supports contradicting i nfe r ences, we p resume the jury resolv ed any such conflicts in favor of the verdict. Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 201 7)

.

Bi shop first argues , “ T he evidence is insufficient to identify Bishop as [the]
Mickie’s Convenience Store rob ber because the c ircumstantial eviden ce of his guilt relies on the stacking of speculative inferences. ” Yet the Court of Criminal Appeals has ex pressly eschewed
inference

- stacking ana lysis in c onducting suffi ciency review. See Hooper v. State , 214 S.W.3d 9 , 15 (Tex. Cr im. App. 2007)

. The c ourt explained:

[I] nfere nce stacking has not been used in this Court ’ s sufficiency of the evidence jurisp ru dence in over 50 years. In the distant past, this Court reversed numerous convictions because they were based upo n stacking i nferences, unsupported presumptions, or building presumptions upon presumptions. See, e.g. , Stallings v. State , 158 Tex. Crim. 74 , 77, 252 S.W.2d 939, 940 (1952); Williamson v. State ,6

156 Tex. Crim. 520, 522, 244 S.W.2d 202, 204 (1951); Lee v. State , 152 Tex. Crim. 401, 405, 2 14 S.W.2d 619, 622 (1948). How ever, that practice was discontinued and is not a part of our modern suffic ie ncy review. We have used the Jackson v. Virginia test for legal [

- ] sufficiency review since it was enunciated b y t h e U.S. Supr eme Court in 1979. Jac kson , 443 U.S. 3 07 (1979)

.
Thus, the question is not whether inference s were “ stacked , ” but whether any r at ional trie r of fact
could find beyond a reasonable d o u b t t h a t Bishop committed the elements of the offense

.

As app l icable here , a person commits agg ravated robbery if he commits robbery
as defined in Section 29.02 and uses or exhibits a deadly weapon. See Tex. Penal Code § 29.03(a)(2)

. A firearm is a deadly weapon. See i d . § 1.07(a)(17)

. A person commits robbe ry i f , in the course of committing theft as defined in Chapter 31 and with intent to obtain or
maintain control of the property, he : (1) inte nt ionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or pl a ces anoth er in fear of
imminent bodily injury or death. See id . § 29.02(a)

. A person commits theft as defined in Chapter 31 w hen he unl aw fully appropriates property with the intent to deprive the owner of the property. Id . § 31.03(a) ; s ee also Graha m v . State , N o. 14

- 18

- 00179

- CR, 201 9 WL 3132266,

at *2 (Tex. App.

— Houston [14th Dist.] July 16, 2019 , no pet. ) (mem. op. , not designated
for publication).

Bishop does not deny that the o ffense occurred ; he instead argues that the State failed to pro ve that he was the perpetr ator. But identity can be prov en by direct or ci rcum stanti al
evidence. Roberson v. State , 16 S.W.3d 156, 167 (Tex. App.

— Austin 2000 , pet. ref ’ d )

. I n this

case, su r v eillance video shows a man that resembles Bishop br a ndishing a saw ed

- o ff s hotgun as he robs the st ore. Law enforcement testif ied that it is highly unusual to encou nter that type of
fire arm, yet Bishop was seen disposi ng of one the next day. Bishop was al so seen w earing the7

same outfit depicted in the surveillance video and ev e n posted photos of himself in the mask

wor n during t he r obbery

. And while DNA analysts testified that both the driver and Bishop ha d
handled the firearm and the face mask , the driver do es not ma tch the description of the perpetrator of the offense, an d, r egardless, it is within the province of the jury to resolv e competing inferences , and we must assume the jury did so in a manner consistent with the
verdict

. Queeman , 520 S.W.3d at 622

. Because a r ational trier of fact could have concluded that
Bisho p c o mmitted the offense, we overrule his sole issue on appeal.

CONCLUSION
We affirm the judgment o f conviction.

________________________ __________________ Edward Smith , Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: June 24, 2021
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