Brown v. State

• Decision Date: 14 December 2006
• Docket Number: No. 01-05-00074-CR.,No. 01-05-00075-CR.,01-05-00074-CR.,01-05-00075-CR.
• Parties: Robert Anthony BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

212 S.W.3d 851

Robert Anthony BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00074-CR.

No. 01-05-00075-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 14, 2006.

Patrick F. McCann, Law Offices of Patrick F. McCann, Houston, for Appellant.

Eric Kugler, Asst. Dist. Atty. of Harris County, Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, for State.

Panel consists of Justices TAFT, HIGLEY, and BLAND.

OPINION ON REHEARING

JANE BLAND, Justice.

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, 61 L.Ed.2d 560 (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...