Robert Anthony Brown v. State ( 2006 )

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.