Robert Anthony Brown v. State

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

Opinion Issued August 3, 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

O P I N I O N

The

State charged appellant Robert Anthony Brown with aggravated robbery with a

deadly weapon and impersonating 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. We affirm the impersonation judgment and

reverse and remand the aggravated robbery judgment for further proceedings.

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 (“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, 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 that he was afraid.

Amanda

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

the lights outside. She testified that

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

his right hand. After she realized that

the men standing outside were not her husband’s friends, Amanda returned to her

home, but emerged again a moment later, this time followed by her two small

children. She stopped the children from

running to their father. She testified that

when she came outside the second time, Brown had a bright light in his left

hand and a “gun” in his right hand, and that he told her to return to the house

or there would be trouble. Amanda

testified that she 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 night stick, 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 29 and 30, 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 (“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. 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. In the fanny pack were driver’s licenses,

resident alien cards, credit cards, social security cards, and two checkbooks.

Legal and Factual Sufficiency

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 evaluating factual sufficiency,

we consider all the evidence in a neutral light to determine whether the jury

was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State , 144 S.W.3d 477, 484

(Tex. Crim. App. 2004). Evidence may be

insufficient if, considered alone, it is too weak to support the verdict, or

if, weighing all the evidence, the contrary evidence is strong enough that the

beyond-a-reasonable-doubt standard could not have been met. Id. at 484–85. In conducting such a review, we consider all

of the evidence weighed by the jury, comparing the evidence that tends to prove

the existence of the elemental fact in dispute to the evidence that tends to

disprove it. Vodochodsky v. State ,

158 S.W.3d 502, 510 (Tex. Crim. App. 2005).

We are authorized to disagree with the jury’s determination even if

probative evidence exists to support the verdict, but we should not substitute

our judgment for that of the fact-finder.

Id. In conducting a

factual sufficiency review, we consider the most important evidence that the appellant

claims undermines the jury’s verdict. Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

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. 2005).

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) (per curiam). 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, and excluding evidence that police later

discovered a toy gun in Brown’s vehicle, a rational trier

of fact could have found beyond a reasonable doubt that Brown is criminally

responsible for Sanchez’s use of a firearm. 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 cock in the back,” 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. Amanda and Galvez

testified that when Galvez’s children saw him in front of the house, they ran

outside to greet him and Amanda followed them.

When this occurred, Brown told Amanda and the children in English to go

inside or something bad was going to happen, and made signs like 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. 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 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, however, we conclude the evidence is factually insufficient to support

Brown’s conviction for aggravated robbery with a firearm. Here, we view all of the evidence in the

record related to Brown’s sufficiency challenge, not just the evidence that

supports the verdict, without the prism of “light most favorable to the

prosecution.”

First, we conclude the evidence is factually

insufficient to sustain Brown’s conviction as a primary actor. Galvez testified that during the course of

the robbery he mainly paid attention to Sanchez. He testified that it was nighttime, there was

no overhead lighting, and he saw Brown from far away. Amanda testified that she stood twelve paces

from where the incident occurred on the street, 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. Neither Galvez nor Amanda

was able to describe Brown’s “gun.” Galvez testified that he was not sure Brown

had a gun, only that he was pointing something toward his house. Amanda testified that she looked at Brown

three times. The first time she saw

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

hand. Moments later, while attempting to

send her children inside the house, she saw Brown holding a bright light in his

left hand and a gun in his right hand.

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

at Brown and again saw him holding a bright light in his left hand and a

walkie-talkie in his right hand. 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 night stick,

and a plastic handgun. In light of the

distance from which the witnesses viewed Brown, the nature of their testimony

regarding the gun, and the evidence that police officers recovered a toy gun

and a hand-held radio, we conclude the evidence contrary to the jury’s verdict

is so strong that the beyond-a-reasonable-doubt standard could not have been

met. See Zuniga , 144 S.W.3d at

485 .

The State contends under Wright v. State

that testimony by a witness that a defendant used a “gun” is enough to find

that a firearm was used. 591 S.W.2d 458,

459 (Tex. Crim. App. 1979). In Wright ,

the defendant was in close proximity to the complainant when he pulled a weapon

which the complainant referred to as a “gun,” a “revolver,” and a

“pistol.” Id. A “gun,” however, may be a much broader term than

“firearm” when taken out of context, and may include such non-lethal

instruments as BB guns, blowguns, popguns, and grease guns. See O’Briant v. State ,

556 S.W.2d 333 , 335–36 (Tex. Crim. App. 1977); see also Benavides v. State ,

763 S.W.2d 587, 588 (Tex. App.—Corpus Christi 1988, pet. ref’d). But courts consider such testimony together

with the other evidence. For example,

the high court has held that a BB gun is not a deadly weapon unless there is

testimony indicating that it could have caused serious bodily injury by the

manner in which it was used during the commission of the crime. See Adame v. State , 69 S.W.3d 581, 582 (Tex.

Crim. App. 2002) (“With testimony that a BB gun is capable of causing serious

bodily injury, it is reasonable for a jury to make a

deadly weapon finding.”); Mosley v. State , 545 S.W.2d 144, 146 (Tex. Crim. App.

1977) (holding unloaded BB gun pointed away from complainant was not deadly

weapon). Specifically, courts have held that testimony

regarding the use of a “gun” may be insufficient to support a finding of use

and exhibition of a deadly weapon when the case presents separate evidence

indicating the use of a toy gun. See Pena Cortez v. State , 732 S.W.2d

713, 715 (Tex. App.—Corpus Christi 1987, no pet.) (holding that testimony

regarding use of “pistol” was insufficient where it was uncontroverted that

“pistol” was toy gun).

Here, Amanda was at least twelve paces away, had

a spotlight shining in her eyes, and was simultaneously directing her small

children back into the house when she viewed what she testified was a “gun” in

Brown’s right hand the second time she looked at him. Both immediately before and after that sighting,

however, she testified that Brown held a walkie-talkie in his right hand. Galvez testified that he was standing by the

driver’s side of his vehicle while Brown was on the opposite side of a

different vehicle. Galvez testified that

he was primarily paying attention to Sanchez, and that he was not sure whether

Brown had a gun. Galvez and Amanda

referred to the item Brown held as a “gun” and a “weapon,” but never as a

pistol, revolver, or any other item which is per se a firearm—nor did they

describe the “gun.” Viewed in a neutral

light, testimony from a witness viewing the defendant from a distance that the

defendant had a “gun,” in light of evidence that police recovered a

walkie-talkie and a toy gun, is not factually sufficient to sustain a finding

of a firearm.

This case is distinguishable from

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

firearm. See, e.g. , Edwards

v. State , 10 S.W.3d 699, 701 (Tex. App.—Houston [14th Dist.] 1999, pet . dism’d)

(evidence sufficient to support conviction for aggravated robbery where gun

defendant used in commission of robbery was “firearm,” and not non-lethal BB

gun, 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 them 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 ,

763 S.W.2d at 589 (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”). Here, neither Galvez nor Amanda described the

“gun.” Nor did either of them ever refer

to the object as a pistol, revolver, or any other object that is, by

definition, a firearm. Neither witness

claimed to have any special knowledge of, or experience with, firearms. To the contrary, Galvez testified that he was

not sure whether Brown had a gun. The

State did not show the witnesses an exemplar gun, and neither witness ever

compared the “gun” to any actual firearm.

In addition, here, police discovered a toy gun in Brown’s vehicle along

with the other instruments—such as the Q-Beam spotlight and walkie-talkies—they

believed were used in the robbery.

More importantly, there is less evidence of a

firearm in this case than in other cases where courts have held the evidence to

be insufficient. For example, in Lee

v. State , the Austin Court of Appeals found the evidence insufficient to

sustain an aggravated robbery conviction where the complainant was robbed by

three men brandishing some type of pistol.

51 S.W.3d 365, 375 (Tex. App.—Austin 2001, no pet.). The victim in Lee testified that she

was in close proximity to the defendant and believed the gun was real. Id. at 372 . Several witnesses testified to seeing the

gun, and one witness held the gun during part of the robbery. Id. at 373 . An expert testified that air pistols, such as

the one the defendant used in that case, could be deadly weapons if loaded and

aimed at the head or neck, but that they were not deadly if unloaded. Id.

There was no evidence the air pistol was loaded, or that the defendant

had threatened the complainant’s life. Id. Here, Galvez and Amanda testified that Brown

told Amanda to go in the house or there would be problems, but neither

testified that Brown or Sanchez ever threatened either of their lives. None of the witnesses in this case were able

to describe the “gun.” None of the

witnesses testified that they believed the gun was real, and, in fact, Galvez

testified that he was not sure Brown had a gun at all. In addition, there was no accomplice

testimony that anyone used a gun capable of causing serious bodily injury in

the commission of the offense. Thus, we

conclude, viewing the evidence in a neutral light, that the evidence is

factually insufficient to sustain Brown’s conviction as a primary actor in the

aggravated robbery.

We further conclude that the evidence is

factually insufficient to sustain Brown’s conviction as a party to an

aggravated robbery with use of a firearm.

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 , 717 S.W.2d at 340 ; Wooden , 101 S.W.3d at 547–48 . Here, Galvez testified that 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.” Police never recovered an actual

firearm—rather, they recovered a plastic gun from Brown’s car, along with the

walkie-talkie and other instruments used during the course of the robbery.

In cases finding the evidence sufficient to

sustain a conviction for aggravated robbery under the law of parties, there was

evidence of an actual firearm as opposed to evidence of a plastic or fake

gun. See, e.g. , Johnson v. State , 6 S.W.3d 709, 711 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d) (holding sufficient evidence of

aggravated robbery under law of parties where defendant was arrested in car

with accomplice who had Tech 9 strapped to his chest); Brewer v. State , 852 S.W.2d 643, 647 (Tex.

App.—Dallas 1993, pet. ref’d) (holding sufficient

evidence of aggravated robbery under law of parties because defendant dropped

off and picked up accomplice who shot victims during aggravated robbery). Here, no firearms were recovered, either from

the car or the motel room, and the descriptions of the gun are insufficient to

demonstrate that any gun used in the commission of the robbery was a firearm as

defined by the Penal Code.

The Court of Criminal Appeals’s

recent finding of factual insufficiency in Vodochodsky v. State further supports

our conclusion that the evidence in this case is factually insufficient. 158 S.W.3d 502, 511 (Tex. Crim. App.

2005). There, Vodochodsky was convicted

of capital murder as a party and sentenced to death for helping his roommate,

Jeremiah Engleton, carry out a plan to commit suicide by engaging police in a

deadly shootout. Id. at 504 . The court concluded the evidence was

factually insufficient despite evidence that Vodochodsky knew about his

roommate’s plan and bailed him out of jail so he could carry out the plan,

because none of the evidence directly indicated that Vodochodsky intended to

help his roommate kill police officers, and contrary evidence indicated

Vodochodsky did not wish to participate in the plan. Id. at 510–11.

Shortly before the incident, a

neighbor saw Vodochodsky loading his vehicle with “stuff” from his and his

roommate’s home, and soon thereafter the police received a 911 call from the

home. Id . at 506. Police officers arrived about twenty minutes

later and the shootout began. Id .

After the shootout, the field

surrounding the house contained over one hundred used shotgun and rifle

casings, and police discovered several locations from which bullets appeared to

have been fired. Id. at 508 . Vodochodsky told a police officer the day

after the shootout that he did not know about Engleton’s plan, but told a

neighbor that he had bailed Engleton out of jail so he could “do this.” Id . at 511. Vodochodsky told his neighbor that Engleton

wanted to carry out his plan the night Engleton had been arrested, but that

Vodochodsky told him not to because they had not planned it out yet. Id. at 507–08. Vodochodsky further told his neighbor that

Engleton had planned to kill himself and take some “pigs” with him, and that

the day of the shooting he had bailed Engleton out and the two had purchased

$200 worth of the best ammunition. Id .

at 508. Vodochodsky told his neighbor

that he had left Engleton four guns and had loaded the rest of the guns, the

papers related to the house and Engleton’s boat, and anything he believed the

police would confiscate, and then he left the house. Id .

A reporter who spoke with Vodochodsky several months after the shootout

testified that Vodochodsky told her that Engleton said he wanted to kill some

police officers, but that he had not taken Engleton seriously. Id .

Vodochodsky told the reporter that he had bailed Engleton out of jail,

they had purchased ammunition to use at a firing range, and he had no prior

knowledge of Engleton’s plan. Id .

The Court of Criminal Appeals concluded

that this evidence was factually insufficient, holding that “the overwhelming

weight of the evidence mitigates against the conclusion that Vodochosky

solicited, encouraged, directed, aided, or attempted to aid Engleton in

committing the offense.” Id. at

510 . The court stated that though there

was some evidence of a second shooter, it was never established. Id .

The court concluded that there was no proof that Vodochodsky removed

belongings from the house as part of a murderous plot, and that none of his

statements directly referred to a plan to kill police officers. Id .

Similarly, here, Galvez’s testimony

that Sanchez’s gun was “cold” and could be cocked in the back is some evidence

that he had an actual firearm, but in light of Galvez’s testimony that he was

not sure the gun was real, and the evidence of a plastic handgun, this fact was

not established beyond a reasonable doubt.

Furthermore, Amanda’s testimony suggests that Brown was pointing a

walkie-talkie at the house rather than a gun, thus creating a further ambiguity

regarding who might have used the plastic gun during the commission of the

robbery. Under the second prong of Zuniga ,

we conclude that the State’s evidence was so inherently weak

regarding Sanchez’s possession of a firearm that, without making all inferences

in favor of the verdict, the evidence is insufficient to support a finding

beyond a reasonable doubt that Brown was criminally responsible for any use of

a firearm by Sanchez during the course of the robbery. See Zuniga , 144 S.W.3d at 485 .

Accordingly, we hold the evidence is factually

insufficient to sustain Brown’s conviction for aggravated robbery with a

firearm, and we remand the case for a new trial on the aggravated robbery

charge. See Clewis v. State , 922 S.W.2d 126 , 133–35

(Tex. Crim. App. 1996).

C.

Impersonating a Police Officer

Brown

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

his conviction for impersonating a police officer. 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 he

had been stopped by real police officers 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. Both Galvez and Amanda identified Brown as

having participated in the incident. Two

flashlights, a Q-Beam spotlight, a night stick, 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 a

bunch 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. Brown was pulled over in 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.

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. [1]

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 29 and 30, 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. A black fanny

pack was discovered in the bag along with the laundry. In the fanny pack were 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 hotel manager before police searched the room, and that the

manager confirmed that Brown and Jackowski had rented rooms 29 and 30 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

hotel 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 278 . 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 who 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 30,

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, 1791 (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 the 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 police officer, 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 police officer. We further hold that the evidence is legally

sufficient, but factually insufficient, to support the conviction for

aggravated robbery with a deadly weapon. Accordingly, we reverse 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, and remand it for a new trial.

Jane

Bland

Justice

Panel consists of Justices Taft,

Higley, and Bland.

Publish. Tex. R. App. P. 47.2( b ).

[1] The State concedes in its brief that some of the

evidence seized in the motel room constituted circumstantial evidence that

Brown had impersonated a police officer.

For this reason, we address the motion to suppress issue.