Brown v. State, No. 01-05-00074-CR (Tex. App. 8/3/2006)

• Court: Texas Court of Appeals
• Writing for the Court: Jane Bland
• Decision Date: 03 August 2006
• Docket Number: No. 01-05-00074-CR.,No. 01-05-00075-CR.,01-05-00074-CR.,01-05-00075-CR.
• Citation: Brown v. State, No. 01-05-00074-CR (Tex. App. 8/3/2006), No. 01-05-00074-CR., No. 01-05-00075-CR. (Tex. App. Aug 03, 2006)
• Parties: ROBERT ANTHONY BROWN, Appellant, v. THE STATE OF TEXAS, Appellee.

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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, First District, Houston.

Opinion Issued August 3, 2006.

On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause Nos. 990261 & 990262.

Panel consists of Justices TAFT, HIGLEY, and BLAND.

OPINION

JANE BLAND, Justice.

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...