Robert Anthony Brown v. State

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued

December 14, 2006

In The

Court of Appeals

For The

First District of Texas

NOS. 01-05-00074-CR

01-05-00075-CR

Robert Anthony Brown , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County,

Texas

Trial Court Cause Nos. 990261 & 990262

OPINION ON REHEARING

The

State charged appellant Robert Anthony Brown with aggravated robbery with a

deadly weapon and impersonation of a public servant. A jury found Brown guilty of both offenses,

and after finding two enhancement paragraphs true, sentenced him to forty-five

years’ imprisonment for each offense. In

five issues, Brown contends the evidence is legally and factually insufficient

to sustain the jury’s verdict on aggravated robbery with a deadly weapon, the

trial court erred in denying his motion to suppress evidence obtained during a

search of his motel room, and the trial court erred in admitting evidence of

extraneous offenses during the punishment phase. In our opinion dated August 3, 2006, we

affirmed the felony conviction for impersonation of a public servant, but held

that the evidence was factually insufficient to support the jury’s verdict on

the aggravated robbery conviction regarding the use of a deadly weapon. We therefore reversed and remanded for a new

trial as to that charge only. The State moved

for rehearing and rehearing en banc, contending that Brown did not raise a specific

factual sufficiency challenge as to the deadly weapon element of aggravated

robbery, and that, in any event, the evidence is factually sufficient to

support the jury’s finding of the deadly weapon element of aggravated robbery. We withdraw our previous opinion and issue

this opinion in its stead. [1] We affirm the trial court’s judgments in full.

Facts

One evening in June 2003, Jose Galvez

cashed his paycheck at a convenience store near his home, and chatted with some

friends who work at a local strip club. On

his way home, Galvez observed a white pickup truck following him that he had

noticed at the convenience store. The

truck displayed what he believed to be police lights. He drove the short distance to his home,

where he pulled into his driveway. The

truck pulled up behind him, blocking him in.

Rene Sanchez exited the truck, approached Galvez, showed him a police

badge, and told Galvez in broken Spanish that he had pulled him over for looking

for prostitutes and drugs.

Sanchez

ordered Galvez to spread his legs and place his hands on the seat of his

vehicle while he checked Galvez’s driver’s license in his computer. Galvez testified that when he had been pulled

over previously, the officers had given him similar instructions. While Sanchez supposedly checked Galvez’s identification

(“ID”), Brown stood by the passenger’s side door of the truck shining what Galvez

believed to be a police flashlight at Galvez’s tags and house. Galvez testified that Brown held a flashlight

in one hand and something else in the other hand, and made signs as though he

had a weapon. Galvez testified that

another man, the driver, waited inside the truck, but Galvez’s wife, Amanda,

testified that she saw only two men, Brown and Sanchez. After waiting a moment for Sanchez to check

his ID, Galvez approached Sanchez’s truck and noticed that it contained some

dirty clothes but no computer, at which point Sanchez grabbed Galvez, threw him

against the side of the truck, and put a gun to his head. Galvez testified that he did not know if

Sanchez’s gun was real, but it felt cold against his skin and he was afraid.

Amanda

was in the house when the incident began, but went onto her porch when she saw

the lights outside. Amanda

testified that she came out of the house three separate times during the

robbery. The first time she just noticed

that the men were not friends of her husband so she immediately went back

inside. The second time, her children

ran out of the house to see their father so Amanda went after them. While she was outside, she saw Brown holding

a bright light in his left hand and a walkie-talkie in his right hand. Amanda then went outside a third time with

her children close behind her. She

walked toward Brown and saw that he was holding a bright light in his left hand

and a gun in his right hand. Brown

pointed the gun at Amanda and her children and said, “bitch, get in the house

or there’s going to be problems for you and your family.” Brown tried to blind Amanda with the light

but she testified that she could still see him.

Amanda saw Sanchez quietly say something to Galvez, and

Galvez then asked her to please go in the house. Amanda returned to her house again, and when

she looked through her window, she saw Brown talking on a walkie-talkie, which

he held in his right hand, while still shining the light at her house with his

left hand. During the incident, Sanchez

took Galvez’s wallet, keys, and cellular phone, after which the men re-entered

their truck and drove away.

Nine

days later, Officer Mike Burdick pulled Brown over in a white 1988 Chevy pickup

truck after observing Brown turn right without signaling. After neither Brown nor his passenger, Robert

Jackowski, could provide him with ID, Officer Burdick placed the men under

arrest. As Brown exited the vehicle,

Officer Burdick noticed several flashlights in the front seat, a Q-Beam spotlight

on the floorboard, and what appeared to be a gun under the driver’s seat. At that point, Officer Burdick remembered hearing

a general broadcast that several robberies had occurred in the area involving

men in a white truck impersonating police officers. Once the men were safely under arrest,

officers searched the truck and recovered two flashlights, a plastic gun, a

small black bat or nightstick, a Q-Beam spotlight, a hand-held radio, and a

paper bag with several phrases, such as “I am the Immigration police” and “put

your hands up,” written on it in Spanish.

Police also recovered pawn slips for assorted jewelry and a lawn mower, a

wallet not belonging to either passenger, and several rings of keys.

When asked where he lived, Jackowski responded

that he was staying at a nearby motel, so Officer Burdick and another officer, Lieutenant

Casko, went to the motel to investigate.

Upon arriving, Lieutenant Casko went to rooms twenty-nine and thirty,

which he believed were occupied by Brown and Jackowski, while Officer Burdick

confirmed with the motel manager that those rooms were occupied by individuals

driving a white truck.

Beatrice Sanchez, Brown’s wife and

Sanchez’s sister, answered the door when Lieutenant Casko knocked, and told

Lieutenant Casko that she was staying in the room. He asked if anyone else occupied the room,

she replied that no one did, and then verbally agreed to let Casko come in and

look around. Casko entered the room

alone to check for other occupants. He

did not have his gun drawn when talking to Beatrice, but did have it in hand

while looking around the corner into the bathroom for other occupants. While checking for other occupants, Casko

noticed narcotics paraphernalia in plain view near the bed. He returned to Beatrice outside the room,

where he was rejoined by Burdick, to request written consent to search the room.

Officer

Burdick prepared, read, and explained a voluntary consent-to-search form for

Beatrice and asked whether she had questions and understood the form. After she signed the consent form, officers

searched the room and found a large black bag filled with dirty laundry. A black fanny pack was discovered in the bag

along with the laundry. The fanny pack

contained driver’s licenses, resident alien cards, credit cards, social security

cards, and two checkbooks.

Legal and Factual Sufficiency

In its motion for rehearing, the

State contends (1) that Brown’s appellate brief did not raise a specific challenge

to the factual sufficiency of the evidence with regard to the deadly weapon element

of aggravated robbery, and (2) the evidence is factually sufficient to support

the jury’s finding of the deadly weapon element of aggravated robbery. We agree with the State’s second issue in

light of the Texas Court of Criminal Appeals’ recent opinion in Watson v. State , overruling the factual sufficiency standard of review from Zuniga v. State . Watson

v. State , 204 S.W.3d 404 , 415–17 (Tex. Crim. App. 2006) (overruling Zuniga

v. State , 144 S.W.3d 477 , 484–85 (Tex.

Crim. App. 2004)). Because the State’s

second issue is dispositive, we do not address the waiver argument in the

State’s first issue.

In his first, second, and third

issues, Brown contends (1) the evidence is legally and factually insufficient

to sustain the jury’s finding that Brown committed a robbery with a deadly

weapon, (2) the evidence is legally and factually insufficient to support

Brown’s conviction for impersonating a police officer, and (3) the evidence is

legally and factually insufficient to support either of Brown’s convictions

under the law of parties.

A.

Standard of Review

When evaluating the legal sufficiency

of the evidence, we view the evidence in the light most favorable to the

verdict and 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, 2789 (1979); Drichas v. State , 175 S.W.3d 795,

798 (Tex.

Crim. App. 2005). The standard is the

same for both direct and circumstantial evidence cases. King v. State , 895 S.W.2d 701, 703

(Tex. Crim. App. 1995). We do not

resolve any conflict of fact, weigh any evidence, or evaluate the credibility

of any witnesses, as this was the function of the trier of fact. See Adelman v. State , 828 S.W.2d 418,

421 (Tex. Crim. App. 1992); Matson v. State , 819 S.W.2d 839, 843 (Tex. Crim.

App. 1991). Instead, our duty is to

determine whether both the explicit and implicit findings of the trier of fact

are rational by viewing all the evidence admitted at trial in the light most

favorable to the verdict. See Adelman ,

828 S.W.2d at 422 . In so doing, any

inconsistencies in the evidence are resolved in favor of the verdict. Matson , 819 S.W.2d at 843 .

When conducting a factual sufficiency

review, we view all of the evidence in a neutral light. Ladd v. State ,

3 S.W.3d 547, 557 (Tex. Crim. App.

1999). We will set the verdict aside only if (1) the evidence is so weak

that the verdict is clearly wrong and manifestly unjust or (2) the verdict is

against the great weight and preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000). Under the first prong of Johnson , we cannot

conclude that a conviction is “clearly wrong” or “manifestly unjust” simply

because, on the quantum of evidence admitted, we would have voted to acquit had

we been on the jury. Watson , 204 S.W.3d at 417 . Under the

second prong of Johnson , we cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury’s

resolution of that conflict. Id. Before

finding that evidence is factually insufficient to support a verdict under the

second prong of Johnson , we must be able to say, with some objective

basis in the record, that the great weight and preponderance of the evidence

contradicts the jury’s verdict. Id. In

conducting a factual sufficiency review, we must also discuss the evidence

that, according to the appellant, most undermines the jury’s verdict. See Sims v. State , 99 S.W.3d 600, 603 (Tex.

Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000). The fact-finder alone

determines what weight to place on contradictory testimonial evidence because

that determination depends on the fact-finder’s evaluation of credibility and

demeanor. Cain v. State , 958 S.W.2d 404 , 408–09 (Tex. Crim. App. 1997). As the determiner of

the credibility of the witnesses, the fact-finder may choose to believe all,

some, or none of the testimony presented. Id. at 407 n.5.

B.

Aggravated Robbery

Brown contends the evidence is legally

and factually insufficient to prove beyond a reasonable doubt that either he or

Sanchez used a firearm in the commission of the robbery, and is thus

insufficient to support his conviction for aggravated robbery.

A person is guilty of aggravated

robbery if he uses or exhibits a deadly weapon in the course of committing a

robbery. Tex. Pen. Code Ann.

§ 29.03( a )(2) ( Vernon 2003).

Proof of the use or exhibition of a deadly weapon is an essential

element of the offense of aggravated robbery. Gomez v. State , 685 S.W.2d 333, 336 (Tex.

Crim. App. 1985). A deadly

weapon is a firearm or anything manifestly designed,

made, or adapted for the purposes of inflicting serious bodily injury or

anything that, in the manner of its use or intended use, is capable of causing

death or serious bodily injury. Tex. Pen. Code Ann.

§ 1.07(a)(17)(A), (B) (Vernon Supp. 2006).

Here, Brown’s indictment alleges not

merely that he exhibited a deadly weapon, but that he exhibited a firearm. When the State alleges unnecessary matters that

are descriptive of the essential elements of the crime, the State must prove

the descriptive matters as alleged. Gomez ,

685 S.W.2d at 336 . Thus, when

the State alleges in an indictment for aggravated robbery that the deadly

weapon used by the defendant was a firearm, as it did in this case, it is

required to prove use of a firearm beyond a reasonable doubt. Edwards

v. State , 10 S.W.3d 699, 701 (Tex. App.—Houston

[14th Dist.] 1999), pet. dism’d ,

improvidently granted 67 S.W.3d 228 (Tex. Crim. App. 2002). A “firearm” means any device

designed, made, or adapted to expel a projectile through a barrel by using the

energy generated by an explosion or burning substance or any device readily

convertible to that use. Tex. Pen. Code Ann. § 46.01(3) (Vernon

2003).

Brown’s indictment also charges him as a party

to the offense of aggravated robbery. In

order to convict Brown as a party to aggravated robbery, the State had to prove

that he was criminally responsible for Sanchez’s use or exhibition of a firearm

during the offense. See Stephens v.

State , 717 S.W.2d 338, 340 (Tex. Crim. App. 1986) (holding that, in order

to convict defendant as party to aggravated offense, State must prove that

defendant was criminally responsible for aggravating element); Wooden

v. State , 101 S.W.3d 542 , 547–48 ( Tex. App.—Fort Worth 2003,

pet. ref’d) (same). A person

is criminally responsible for the conduct of another if, “acting with intent to

promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense.” Tex.

Pen. Code Ann. § 7.02(a)(2) (Vernon 2003); Wooden , 101 S.W.3d at

546 . In determining whether an accused

bears criminal responsibility for an offense, we may look

to events before, during, and after the commission of the offense. Marable v. State , 85

S.W.3d 287, 293 (Tex. Crim. App. 2002).

Legal Sufficiency

Viewing the evidence in the light

most favorable to the verdict, a rational trier of fact

could have found beyond a reasonable doubt that Brown is guilty of aggravated

robbery. Galvez testified that after

Brown and Sanchez pulled him over in front of his house, he exited his truck, and

Sanchez told him to wait there while he verified Galvez’s information in his

computer. After waiting a few minutes,

Galvez approached Sanchez’s truck, and Sanchez pushed Galvez against the truck

and put a gun near his head. Galvez

testified that Sanchez’s gun was the kind that “you can pull in the back of it,”

and that it was “cold.” Galvez testified

that while this occurred, Brown remained on the passenger’s side of Sanchez’s

truck, shining a light at Galvez’s house and license plate and pointing

something toward Galvez’s house. Brown

told Amanda and the children in English to go inside or something bad was going

to happen, and made signs as if he had a weapon. Galvez testified that it looked as though

Brown had a gun, but that he could not tell what was in Brown’s hand. Both Amanda and Galvez testified that they

were afraid. Amanda testified that she

came out of the house three separate times during the robbery. The third time she went outside, Amanda

noticed that Brown had a gun and that he was pointing it at her and the

children. Brown tried to blind Amanda

with his flashlight but she could still see him. Amanda also testified that Sanchez held a gun

to Galvez’s head. We conclude that,

viewing this evidence in a light most favorable to the verdict, a rational jury

could have found beyond a reasonable doubt that Brown used a firearm during the

commission of the robbery. See Wright v. State , 591 S.W.2d 458, 459

(Tex. Crim. App. 1979) (holding that evidence defendant pointed “gun,”

“pistol,” or “revolver” at complainant was sufficient to prove use of “deadly

weapon”). We also conclude that a

rational jury could have found beyond a reasonable doubt that Sanchez used a

firearm during the commission of the robbery, and that Brown, acting with

intent to assist the commission of the robbery, attempted to aid Sanchez in

using a firearm to threaten Galvez. See

Marable , 85 S.W.3d at 293 .

Factual Sufficiency

Viewing all the evidence in a neutral

light, w e conclude the evidence is factually sufficient to sustain Brown’s

conviction for aggravated robbery as the primary actor and under the law of

parties. Galvez testified that during

the course of the robbery he mainly paid attention to Sanchez. He testified that it was nighttime and he saw

Brown from far away. Galvez was not able

to describe Brown’s gun. Galvez

testified that he was not sure Brown had a gun, but that he was pointing

something toward his house that looked like a weapon. Galvez further testified that after Brown and

Sanchez pulled him over in front of his house, Sanchez told him to wait by his

vehicle while he went to check the computer in his truck. After waiting a few minutes, Galvez

approached the truck, and Sanchez pushed Galvez against the truck and put a gun

to his head. Galvez described the gun as

one of “those ones you can pull in the back of it.” He testified that he did not know whether it

was real or fake, but that it was “ugly” and “cold.” Galvez testified that while this occurred,

Brown remained on the passenger’s side of Sanchez’s truck, shining a light at

Galvez’s house and license plate and pointing something toward Galvez’s house

that looked like a weapon. Amanda

testified that she saw Sanchez holding a gun to Galvez’s head the third time

she went outside. After Amanda returned

to her house, she looked out the window and once again saw Sanchez holding a

gun to Galvez’s head.

Amanda testified that she came out of the house three

separate times during the robbery. The

first time she noticed that the men were not friends of her husband so she

immediately went back inside. The second

time, her children ran out of the house to see Galvez and Amanda went after

them. While she was outside, she saw

Brown holding a bright light in his left hand and a walkie-talkie in his right

hand. Amanda then went outside a third

time with her children close behind her.

As she walked toward Brown, she saw that he was holding a bright light

in his left hand and a gun in his right hand.

Brown pointed the gun at Amanda and her children and said, “bitch, get

in the house or there’s going to be problems for you and your family.” Brown tried to blind Amanda with the light

but she testified that she could still see him.

As soon as Amanda re-entered the house, she looked out the window and

saw Brown using the walkie-talkie.

Officer Burdick testified that when he pulled Brown over nine days after

the incident, he found two flashlights, a Q-Beam spotlight, a hand-held radio,

a nightstick, and a plastic handgun. Police

never recovered an actual firearm.

In Wright

v. State , the Court of Criminal Appeals affirmed an aggravated robbery

conviction where the victim referred to the defendant’s weapon as a “gun,” “pistol,”

or “revolver.” 591 S.W.2d at 459 . The appellant asserted that evidence is

sufficient only if the witness uses the term “firearm” or otherwise proves the

use of a “deadly weapon” under one of the alternative definitions. Id. The court stated, “testimony using any of the

terms ‘gun’, ‘pistol’ or ‘revolver’ is sufficient to authorize the jury to find

that a deadly weapon was used.” Id. The court held that the State is not required

to offer testimony that the defendant used a “firearm,” or otherwise prove the

use of a “deadly weapon” under one of the alternative definitions, to sustain

an aggravated robbery conviction. Id.

The evidence surrounding Brown’s gun in this

case is conflicting. Amanda

unequivocally testified that she saw Brown holding a gun and that he pointed it

at her and the children. Brown tried to

blind her with a flashlight but she could still see him. Galvez testified that he was not sure Brown

had a gun, but Brown was pointing something toward his house that looked like

it could have been a weapon. The police,

however, found a plastic gun when they searched the white Chevy truck nine days

after the robbery and never recovered a real gun.

The evidence surrounding Sanchez’s gun is also

conflicting. Galvez testified that

Sanchez held a gun to his head, it felt cold, and it was the kind that you pull

in the back. Galvez, however, also

testified that he could not tell if the gun was real or fake. Amanda testified that she too saw Sanchez

holding a gun to Galvez’s head on two separate occasions.

Under Watson

v. State , a conflict in the evidence does not justify a new trial simply

because an appellate court might disagree with the jury’s resolution of the

conflict. 204 S.W.3d at 417 .

On this record, the great weight and preponderance of the evidence

does not contradict the jury’s firearm finding.

Id. We therefore hold that the evidence is

factually sufficient to support Brown’s conviction for aggravated

robbery with a firearm as the primary actor and under the law of parties.

Under the former factual sufficiency

standard of review from Zuniga , which

we relied upon in our original opinion, the Court of Criminal Appeals stated:

[T]here are two ways in which the evidence

may be insufficient. First, when

considered by itself, evidence supporting the verdict may be too weak to

support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting

the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing

scale, the contrary evidence may be strong enough that the

beyond-a-reasonable-doubt standard could not have been met, so the guilty

verdict should not stand.

144 S.W.3d at 484–85 . In Watson ,

the Court of Criminal Appeals recognized that this language is problematic

because it allows an appellate court to

reverse a case on factual sufficiency grounds when the evidence does not

satisfy the court’s own threshold of

proof for the beyond-a-reasonable-doubt standard. 204 S.W.3d at 416 . Under this interpretation, the appellate

court might therefore reverse a case because it simply

disagrees with the jury’s verdict, but until Zuniga , the court observed, the fact “[t]hat an appellate

court would have acquitted a defendant on the same facts that convinced a

rational jury to convict has not ever, by itself, met our criteria of a

‘manifest injustice.’” Id.

The Zuniga

court further elaborated on its factual sufficiency formulation when it stated:

This standard acknowledges that evidence

of guilt can “preponderate” in favor of conviction but still be insufficient to

prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt

can “outweigh” the contrary proof and still be factually insufficient under a

beyond-a-reasonable-doubt standard.

144 S.W.3d at 485 . The Watson court noted that this language

was particularly troublesome. 204 S.W.3d

at 416 . The first sentence suggests that evidence that is legally

sufficient to convict might still be factually in sufficient if it merely “preponderates” in favor of guilt,

rather than establishing guilt beyond a reasonable doubt. Id. Thus, even if the appellate court concludes

that a rational jury could find guilt to the requisite level of confidence

beyond-a-reasonable-doubt, that same appellate court should order a new trial

if, viewing that same evidence neutrally, it is subjectively convinced by no more than a preponderance of the

evidence. Id. The

second sentence suggests that even if the State’s evidence of guilt is weightier and more credible than the defendant’s contrary evidence, and

therefore “preponderates” in favor of guilt, an appellate court could find that

it does not meet its own

threshold level of confidence beyond a reasonable doubt, and reverse and remand

on that basis. Id.

We based our prior

holding in this case on the language from the Zuniga opinion that the Court of Criminal Appeals has now expressly

disavowed in Watson . Specifically, we relied on the second prong

of Zuniga and held that evidence

contrary to the jury’s verdict was strong enough that the

beyond-a-reasonable-doubt standard could not have been met. As the court

clarified in Watson , however, before finding that evidence is

factually insufficient to support a verdict under the second prong of Johnson ,

we must be able to say, with some objective basis in the record, that the great

weight and preponderance of the evidence contradicts

the jury’s verdict. Id. In this case, the evidence is factually

sufficient to support Brown’s aggravated robbery conviction as the primary

actor and under the law of parties because we cannot say that the great weight

and preponderance of the evidence contradicts the jury’s verdict. Though the evidence is conflicting, and the

police recovered a toy gun nine days after the robbery, the later recovery of

the toy gun does not contradict Amanda’s testimony that Brown threatened her

and her children with a gun on the night in question.

In Pena Cortez v. State , the Corpus Christi Court of Appeals held that

testimony regarding the use of a “pistol” was insufficient to sustain an

aggravated robbery conviction where it was uncontroverted that the “pistol” was

a toy gun. 732 S.W.2d

713, 715 (Tex. App.—Corpus Christi 1987, no pet.). This case is distinguishable from Pena Cortez

in that there is no uncontroverted evidence that the toy gun found in Brown’s

truck nine days after the robbery was the same gun used during the robbery. This case is also similar to

cases in which courts found the evidence sufficient to support the finding of a

firearm. See, e.g. , Edwards ,

10 S.W.3d at 701–02 (evidence sufficient to support conviction for aggravated

robbery where there was evidence that defendant threatened victims with gun,

and two victims, one of whom stated that she was security guard once and was

familiar with guns, testified that gun used in robbery resembled Colt .45

handgun and not BB gun); Carter v. State , 946 S.W.2d 507, 509 (Tex.

App.—Houston [14th Dist.] 1997, pet. ref’d) (victims’ testimony that defendant

used gun similar to .25 caliber gun shown at trial, and threatened to shoot

victims if they did not do as he ordered, was sufficient to authorize rational

jury to find that firearm was used during offense); Benavides v. State , 763 S.W.2d 587 , 588–89 (Tex. App.—Corpus

Christi 1988, pet. ref’d) (evidence was sufficient to show that firearm was

used during robbery and was thus sufficient to support conviction for

aggravated robbery where victim, who viewed defendant from close proximity, testified

that defendant used “gun” that was “automatic” and “medium-sized”).

C.

Impersonating a Public Servant

Brown

also challenges the legal and factual sufficiency of the evidence to support

his conviction for impersonating a public servant. Section 37.11(a)(1) of the Penal Code provides

that “[a] person commits an offense if he impersonates a public servant with

intent to induce another to submit to his pretended official authority or to

rely on his pretended official acts.” Tex. Pen. Code Ann. § 37.11(a)(1)

(Vernon 2003) .

Here, Galvez testified that while cashing his paycheck

at a convenience store, he had a conversation with some of his friends who work

at a strip club. On his way home, he

noticed that he was being followed by a white truck he had seen at the

convenience store displaying what appeared to be police lights. When Galvez stopped in his driveway, Sanchez

approached his vehicle, showed him a police badge, and told him in broken

Spanish that he had been stopped for soliciting prostitution and drugs. Sanchez asked for Galvez’s ID and told him he

was going to check the information in his computer. Galvez testified that Sanchez also told him

to spread his legs and place his hands on the seat of the car, and that when real

police officers had stopped him in the past, they had asked him to do the same

thing. While this was taking place,

Brown stood by the passenger’s side of the truck, flashing a light at the tags

on Galvez’s vehicle. When Galvez approached

the truck, Sanchez pushed him against it, and Brown asked if Galvez “was

clean,” meaning did he have a weapon.

Amanda testified that Brown was shining a light at her and at some point

appeared to be talking on a walkie-talkie.

Amanda identified Brown as having participated in the incident. Two flashlights, a Q-Beam spotlight, a nightstick,

a walkie-talkie, and a plastic gun were found in Brown’s truck when he was

pulled over. A search of Brown’s vehicle

also revealed several rings of keys, cellular phones, and a brown paper sack

with police phrases written on it in Spanish.

Galvez identified his assailant’s vehicle as a white 1988–96 Chevy

truck. The police later pulled Brown over

while he was driving a 1988 white Chevy truck.

Viewing

this evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt that Brown

impersonated a police officer. In

addition, viewing the evidence in a neutral light, we conclude that the jury

was rationally justified in finding Brown guilty of impersonating a police

officer beyond a reasonable doubt.

D. Identity

Brown contends the identification evidence in the

record is factually insufficient to support either of his convictions. Before trial, Galvez identified Brown in a

photograph line-up by writing his signature underneath Brown’s picture. Galvez admitted that he identified Brown’s

picture after Amanda, and that her signature was already under Brown’s picture

when he made his identification. During

cross-examination, Galvez also admitted that it was dark on the night of the

robbery and he could not see very well.

Galvez could not see what Brown was wearing during the robbery because

Brown was standing behind one of the truck doors. Officer Brillon testified that he did not

remember Galvez identifying Brown in the photograph line-up, but acknowledged

that Galvez’s signature under Brown’s picture indicates that he did make the

identification. Brillon’s report does

not indicate that Galvez identified Brown.

Officer Hernandez, who was also present during the line-up, did not

recall that Galvez identified Brown.

Amanda went outside three separate

times during the course of the robbery and looked out a window once. Brown tried to blind her with his flashlight several

times but she testified that she could still see his face. She also testified that her porch light was

on during the robbery. Amanda

testified that she stood twelve paces from where the incident occurred, and

that she was too far away and it was too dark to describe Brown’s facial

features, determine if he had scars or tattoos, determine the color of his

eyes, or determine whether he had facial hair.

Amanda identified Brown in the photograph line-up, as well

as in court.

Galvez and Amanda both testified that

the automobile used in the robbery was a white Chevy pickup truck. The police arrested Brown and Jackowski nine

days after the robbery driving a white Chevy truck. After searching the truck, the police found

two flashlights, a plastic gun, a small black nightstick, a Q-Beam spotlight, a

hand-held radio, and a paper bag with several police phrases written on it in

Spanish. Police also recovered pawn

slips for assorted jewelry and a lawn mower, a wallet not belonging to either

passenger, and several rings of keys.

When asked where he lived, Jackowski

responded that he was staying at a nearby motel, so Officer Burdick and

Lieutenant Casko went to the motel to investigate. Upon arriving, Lieutenant Casko went to rooms

twenty-nine and thirty, which he believed were occupied by Brown and Jackowski,

while Officer Burdick confirmed with the motel manager that those rooms were

occupied by individuals driving a white truck.

Beatrice (Brown’s wife and Sanchez’s

sister) answered the door when Lieutenant Casko knocked, and told Lieutenant

Casko that she was staying in the room.

He asked if anyone else occupied the room, she replied that no one did,

and then verbally agreed to let Casko come in and look around. While checking for other occupants, Casko

noticed narcotics paraphernalia in plain view near the bed. Beatrice consented to a search of the room

and the officers found a large black bag filled with dirty laundry. A black fanny pack was discovered in the bag

along with the laundry. The fanny pack contained

driver’s licenses, resident alien cards, credit cards, social security cards,

and two checkbooks.

The identity evidence in this case is

not so weak that the jury’s verdict seems clearly wrong and manifestly unjust,

nor can we say that the jury verdict is against the great weight and preponderance

of the evidence. Watson , 204 S.W.3d at 417 ; Johnson , 23 S.W.3d at 11 . The testimony surrounding Galvez’s

identification of Brown is not very strong.

Both officers present during the photograph line-up could not recall if

Galvez identified Brown, and Galvez admitted that he could not see Brown very

well during the robbery. Amanda’s

identification testimony was much stronger.

Amanda identified Brown during the photograph line-up, as well as in

court. The circumstantial evidence

discovered in Brown’s truck, as well as the circumstantial evidence discovered

in his motel room, also link Brown to the crimes in this case. The truck itself affirmatively links Brown to

the crimes as well. Both Galvez and

Amanda testified that the robbery was perpetrated by men driving a white Chevy

truck, the same type of truck Brown was driving when police arrested him. We therefore conclude that viewing the

evidence in a neutral light, the identification evidence is factually

sufficient to sustain Brown’s convictions for aggravated robbery and

impersonation of a public servant. See Apolinar

v. State , 106 S.W.3d 407 , 412–13 (Tex.

App.—Houston [1st Dist.] 2003), aff’d , 155 S.W.3d 184, 191 (Tex. Crim. App. 2005) ( holding that evidence was factually sufficient to identify

defendant as perpetrator of aggravated robbery, even though victim demonstrated

memory and vision problems at trial; victim identified defendant three times at

trial, witness testimony was fairly consistent in describing defendant’s

appearance, and officers later found knife with blade consistent with

defendant’s arm wound) ; Wimbrey

v. State , 106 S.W.3d 190 , 191–93 (Tex. App.—Fort Worth 2003,

pet. ref’d) (holding evidence was factually sufficient to support defendant’s conviction for aggravated

robbery; two employees of video store testified defendant entered store,

approached counter, surreptitiously pointed gun at them, and forced them to

empty contents of cash registers into bag, both employees separately identified

defendant in photograph line-up two months after robbery, and both identified

defendant as man who robbed store at trial) ; Fluellen

v. State , 104 S.W.3d 152 , 160–61 (Tex. App.—Texarkana 2003,

no pet.) (holding evidence was factually sufficient to identify defendant as person who sold cocaine to undercover police

officer, in prosecution for delivery of controlled substance in drug free zone;

officer identified

defendant as person who sold him cocaine at trial, and officer identified voice on audiotape of

transaction as that of defendant).

Motion to Suppress

In

his fourth issue, Brown contends the trial court erred in denying his motion to

suppress the evidence seized from the motel room because (1) the State failed

to establish that Beatrice had actual authority to consent to a search of the

motel room, and (2) the State failed to establish that her consent was

voluntary. The State responds that Brown

lacks standing to challenge the search, that the police obtained valid and

voluntary consent, and that Brown was not harmed by admission of the evidence.

A.

Facts

Immediately after arresting Brown and

Jackowski, and after discovering evidence that they believed might link Brown

and Jackowski to a series of robberies involving impersonation of police

officers, Officer Burdick and Lieutenant Casko went to the motel where

Jackowski claimed he was staying. Upon arriving,

Casko went to rooms twenty-nine and thirty, which he believed were occupied by

Brown and Jackowski, while Burdick confirmed with the motel manager that those

rooms were occupied by individuals driving a white truck. Beatrice answered the door when Casko knocked

and told him that she was staying in the room.

He asked if anyone else occupied the room, she replied that no one did,

and then verbally agreed to let Casko come in and look around. Casko entered the room alone to check for

other occupants. He did not have his gun

drawn when talking to Beatrice, but did have it in hand while looking around

the corner into the bathroom for other occupants. While checking for other occupants, Casko

noticed narcotics paraphernalia in plain view near the bed. He returned to Beatrice outside the room,

where he was rejoined by Burdick, to request written consent to search the

room.

Officer

Burdick prepared, read, and explained a voluntary consent-to-search form for

Beatrice and asked whether she had questions and understood the form. After she signed the consent form, officers

searched the room and found a large black bag filled with dirty laundry. The officers discovered a black fanny pack in

the bag along with the laundry. The

fanny pack contained driver’s licenses, resident alien cards, credit cards,

social security cards, and two checkbooks, none of which belonged to Beatrice, Brown,

or Jackowski.

B.

Standard of Review

We

apply a bifurcated standard of review to motions to suppress, giving almost

total deference to a trial court’s determination of historical facts, while

reviewing de novo the court’s application of the law. See Dyar v. State , 125 S.W.3d 460, 462

(Tex.

Crim. App. 2003). In a motion to

suppress hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given to their testimony. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App.

2000); Foster v. State , 101 S.W.3d 490, 495 (Tex. App.—Houston

[1st Dist.] 2002, no pet.). Accordingly,

the trial court may believe or disbelieve all or any part of a witness’s

testimony, even if that testimony is not controverted. Ross , 32 S.W.3d at 855 . If, as here, the trial court files no

findings of fact, we view the evidence in a light most favorable to the ruling

and will uphold a trial court’s ruling on any theory of law supported by the

evidence. Estrada v. State , 154

S.W.3d 604, 607 (Tex. Crim. App. 2005).

C.

Standing

We

must first determine whether Brown has standing to contest the search. An accused has standing to contest a search

under the Fourth Amendment only if he has a legitimate expectation of privacy

in the place searched. Rakas v. Illinois ,

439 U.S.

128, 144 , 99 S. Ct. 421, 430 (1978); Granados v. State , 85 S.W.3d 217 ,

222–23 (Tex.

Crim. App. 2002). The defendant bears

the burden of establishing that he had a subjective expectation of privacy in

the place searched that society recognizes as reasonable. Granados , 85 S.W.3d at 223 . Several factors are relevant to this latter

determination of whether a given claim of privacy is objectively reasonable:

(1) whether the accused had a property or possessory interest in the place

invaded; (2) whether he was legitimately in the place invaded; (3) whether he

had complete dominion or control and the right to exclude others; (4) whether,

prior to the intrusion, he took normal precautions customarily taken by those

seeking privacy; (5) whether he put the place to some private use; and (6)

whether his claim of privacy is consistent with historical notions of

privacy. Id. This list of factors is non-exhaustive, and

no one factor alone is dispositive of a legitimate expectation of privacy. Id .

The

State argues that because Brown claimed he was not staying in either motel

room, he did not have complete dominion and control, and thus lacks standing to

challenge the search. The Supreme Court

has recognized that a registered guest at a hotel has a reasonable expectation

of privacy in the room that he or she has rented and, consequently, is entitled

to constitutional protection against unreasonable searches and seizures there. See Stoner v. California , 376 U.S.

483, 490 , 84 S. Ct.

889, 893 (1964). The Supreme Court has

also held that an overnight guest in someone’s home has a legitimate

expectation of privacy. Minnesota

v. Olson , 495 U.S.

91, 98 , 110 S. Ct.

1684, 1689 (1990). This court concluded

in Wilson v. State , based on the preceding Supreme Court precedent, that

an overnight guest of a registered hotel guest shares the

registered guest’s reasonable expectation of privacy in the room. 98 S.W.3d 265 , 268–70 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d).

Here, Officer Burdick testified that

he spoke with the motel manager before police searched the room, and that the

manager confirmed that Brown and Jackowski had rented rooms twenty-nine and thirty

and had been staying there about a week.

Brown testified that he had rented the rooms so Jackowski and Sanchez

could stay there, and so he could have sexual relations with his wife Beatrice. Beatrice testified that she had been staying

in one of the rooms with Jackowski and Sanchez, and Brown would meet her

there. Because Brown was the registered

motel guest and had stayed overnight in the room to spend time with his wife,

he had a legitimate expectation of privacy in the room. See id. at 269 . Accordingly, we conclude Brown has standing

to contest the search.

D.

Authority to Give Consent

Brown contends the fruits of the

warrantless search of his motel room should have been suppressed because

Beatrice lacked actual authority to consent to the search. A warrantless search by law enforcement

officers does not violate the Fourth Amendment’s guarantee against unreasonable

searches and seizures if the officers have obtained the consent of a third

party that possesses common authority over the premises or effects sought to be

inspected. United States v.

Matlock , 415 U.S.

164, 171 , 94 S. Ct.

988, 993 (1974). “Common authority”

rests on “mutual use of the property by persons generally having joint access

or control for most purposes.” Id. at

171 n.7, 94 S. Ct.

at 993 n.7. If consent was not obtained

from someone with actual authority to consent to a search, a search may

nevertheless be proper if the person giving consent had apparent authority. Illinois

v. Rodriguez , 497 U.S.

177 , 188–89, 110 S. Ct. 2793, 2801 (1990). A third party’s consent is valid if the facts

available to the officer at the time of the search would warrant a person of

reasonable caution in believing that the consenting party had authority over

the premises. See id. at 188 , 110

S. Ct.

at 2801. If an officer reasonably

believed that the third party had common authority over the place to be

searched, then his good faith mistake will not invalidate the search. Id. This deference

does not mean, however, that the officer may rely on consent given in ambiguous

circumstances or when it appears clearly unreasonable to believe the third

party is clothed with authority to give consent. Riordan v. State , 905 S.W.2d

765, 771 (Tex. App.—Austin 1995, no pet.).

Here,

Lieutenant Casko testified that when he knocked on the door to room thirty,

Beatrice answered the door. Casko asked

her if she was staying in the room, and she told him that she was. He asked her if there was anyone else in the

room with her, and she replied that there was not. He then asked for verbal consent to search

the room for other people, which she granted.

While checking for other individuals in the room, Casko noticed drug

paraphernalia on the table in plain view.

When Officer Burdick arrived, he asked Beatrice for her written consent

to search the room. Burdick testified

that he knew several people were staying in the room, one of whom was Brown’s

wife, Beatrice. Based on this evidence,

Beatrice had at least apparent authority to consent to a search of the

premises.

The

Supreme Court recently held, in Georgia v. Randolph , “that a physically

present inhabitant’s express refusal of consent to a police search is

dispositive as to him, regardless of the consent of a fellow occupant.” 126 S. Ct. 1515, 1528 (2006). There, Randolph’s wife called the

police over a domestic dispute. Id.

at 1519 . When police arrived, Randolph’s wife

told them that Randolph

used drugs and had drugs inside the house.

Id. Police asked Randolph

for consent to search the house, and he expressly refused. Id. Police then asked Randolph’s

wife for consent to search, which she granted.

Id. The Supreme Court held that Randolph’s

refusal to consent trumped his wife’s consent.

Id.

at 1526 . The present case is

distinguishable, however, because Brown was not present when police asked

Beatrice for consent, and he did not expressly refuse consent prior to Beatrice

giving consent. We conclude Beatrice had

apparent authority to consent to the officers’ search of the motel room.

E.

Voluntariness of Consent

Brown

next argues that even if Beatrice had authority to consent to the search, her

consent was involuntary. When relying

upon consent to justify the lawfulness of a search, the State has the burden to

prove by clear and convincing evidence that the consent was freely and

voluntarily given. Bumper v. North

Carolina , 391 U.S.

543, 548 , 88 S. Ct. 1788, 1792 (1968); see also Corea v. State , 52

S.W.3d 311, 316 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d). The burden requires the

State to show that the consent was positive and unequivocal, and there was no

duress or coercion. Meeks v. State ,

692 S.W.2d 504, 509 (Tex. Crim. App. 1985); Riordan , 905 S.W.2d at 770 . The burden cannot be discharged by showing no

more than acquiescence to a claim of lawful authority. See Bumper , 391 U.S.

at 548–49, 88 S. Ct.

at 1791­–92. The validity of consent to search is

a question of fact to be determined from all the circumstances. Rayford

v. State , 125 S.W.3d 521, 528 (Tex.

Crim. App. 2003).

Here, Lieutenant Casko testified that he was alone when

Beatrice answered the motel room door, and that she gave verbal consent to search

for other individuals who might be in the room.

Casko testified that he may have had his weapon drawn when he looked in

the bathroom, but that he never pointed it at Beatrice, and that the other

officers never had their weapons drawn. After

he noticed some drug paraphernalia in plain view, Casko took Beatrice outside

where Officer Burdick asked her to sign a consent to search the room. Burdick testified that he and Casko were the

only officers near Beatrice when she signed the consent. He testified that she did not appear to be

intoxicated, that she could and did read the consent, that she could and did

speak English, and that he read and explained the consent form to her before

she signed it, including a statement that she did not have to give consent. Both officers testified that she was not

under arrest at the time she signed the consent, and that she was at all times

cooperative with their investigation. We

hold that Beatrice’s consent was voluntary, and thus the search of the motel

room was valid. Accordingly, we overrule Brown’s fourth issue.

Extraneous

Offenses

Brown contends the trial court erred in admitting testimony

regarding an extraneous offense allegedly committed by Brown because the State

failed to prove Brown had committed the offense beyond a reasonable doubt. The State contends Brown failed to preserve

error on this issue for appeal. To preserve an issue for

appeal, a party must timely object, stating the specific

legal basis. Tex. R. App. P. 33.1(a)(1); Rhoades v. State , 934

S.W.2d 113, 121, 127 (Tex. Crim. App. 1996). “To be timely, an objection must be raised at

the earliest opportunity or as soon as the ground of objection becomes

apparent.” Penry v. State , 903

S.W.2d 715, 763 (Tex. Crim. App. 1995). In the absence of a timely motion or

objection, nothing is presented for appellate review. Cooper v. State , 500 S.W.2d 837, 841

(Tex. Crim. App. 1973). Here, in a

hearing outside the presence of the jury, defense counsel objected to allowing

the witnesses to identify Brown in court, which the trial court sustained. Counsel then objected to allowing any

testimony by one of the witnesses, without giving a basis for the objection,

and without obtaining a ruling. Twice

after the witnesses had finished testifying, counsel objected that the

testimony was not relevant, and that its probative value was outweighed by its

prejudicial effect. Counsel never

objected that evidence of the offenses should be excluded for failure to

demonstrate Brown’s involvement beyond a reasonable doubt. Thus, this argument has not been preserved

for appeal.

Conclusion

We hold (1) the trial court did not err in

denying Brown’s motion to suppress because police obtained voluntary consent to

search the motel room from someone with apparent authority, (2) the evidence is

legally and factually sufficient to support Brown’s conviction for

impersonating a public servant, and (3) Brown failed to preserve error on his

argument that the extraneous offenses should not have been admitted because

they were not proven beyond a reasonable doubt.

Accordingly, we affirm the judgment of the trial court in cause number

990262 (appellate cause number 01-05-00075-CR) as to Brown’s conviction for

impersonating a public servant. We

further hold that the evidence is legally and factually sufficient to support

Brown’s conviction for aggravated robbery. Accordingly, we affirm the judgment of the

trial court in cause number 990261 (appellate cause number 01-05-00074-CR) as to

Brown’s conviction for aggravated robbery.

Jane Bland

Justice

Panel consists of Justices Taft,

Higley, and Bland.

Publish. Tex. R.

App. P. 47.2( b ).

[1] As we have issued an opinion on rehearing, we deny

the State’s motion for en banc reconsideration as moot. See

Brookshire Bros. v. Smith , 176 S.W.3d 30 , 40 n.2 (Tex. App.—Houston [1st Dist.] 2004,

pet. denied).