                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                               NOS.      2-09-104-CR
                                         2-09-105-CR
                                         2-09-106-CR
                                         2-09-107-CR


HERSCHEL JEROME HURD                                                      APPELLANT

                                            V.

THE STATE OF TEXAS                                                              STATE

                                        ------------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      Appellant Herschel Jerome Hurd appeals his convictions for one count of

aggravated robbery with a deadly weapon and three counts of aggravated assault

with a deadly weapon. 2 In two issues, he contends that the trial court erred by failing



      1
           See Tex. R. App. P. 47.4.
      2
        See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009),
§ 29.03(a)(2) (Vernon 2003). Aggravated robbery is a first-degree felony;
aggravated assault, as charged in this case, is a second-degree felony. See id. §§
22.02(b), 29.03(b).
to suppress evidence related to the victim’s identification of him and by failing to

suppress evidence obtained as the result of an allegedly unlawful execution of his

arrest warrant. W e affirm.

                                Background Facts

      In 2005, the State filed three indictments against appellant for aggravated

assaults that occurred on the same day in October 2004; the indictments alleged

that appellant struck someone with a club or bat that qualified as a deadly weapon.

Appellant pled guilty to each indictment. The trial court deferred its adjudication of

appellant’s guilt in each case and placed him on ten years’ community supervision.

      A few years later, in April 2008, Ibrahim Soliman was working as a cashier at

Quick Food Grocery in Arlington when a customer entered the store wearing white

gloves and sunglasses. The customer walked around the counter toward the cash

register, commanded Soliman to open the register, held a silver gun to Soliman’s

face, took about $200, and left the store. Soliman feared for his life.

      Arlington Police Department Detective Anthony W right arrived at the crime

scene and met with Soliman, who came to the United States from Egypt and speaks

only some English. Detective Wright reviewed video surveillance from Quick Food

Grocery and noticed that the robber was a black male who had a light skin tone and

medium body size. He also saw that the robber used a chrome gun and wore a dark

“do-rag,” sunglasses, shorts with a distinctive pattern, and white gloves. Video

surveillance from a restaurant located next to Quick Food Grocery showed that a


                                          2
mid-sized dark car had parked close to the grocery store near the time of the

robbery, that someone who appeared to look like the robber had stepped out of the

car, and that the car left after the time that the robbery occurred.

      Detective W right prepared a photographic spread that contained mug shots

of six people, and six days after the robbery occurred, Soliman selected appellant

as the robber. 3 The police got a warrant for appellant’s arrest. To execute the

warrant, they first went to an Arlington address listed on one of appellant’s

identification cards and found appellant’s father but not appellant. Appellant’s father

took the police to a Grand Prairie apartment where appellant was staying. Courtney

Gibbs, appellant’s girlfriend, answered the door.       The police determined that

appellant was inside the apartment, entered inside, and arrested him.

      A grand jury indicted appellant with committing aggravated robbery against

Soliman. The indictment contained a repeat offender notice stating that appellant

had previously been convicted of a felony. Appellant moved to suppress any in-court

identification of him by Soliman and any evidence the police gathered as a result of

his allegedly illegal arrest.   The State petitioned the trial court to proceed to

adjudication of guilt in each of appellant’s aggravated assault cases on the basis that




      3
       Detective W right testified in a pretrial hearing that appellant became a
suspect based on information that another police department provided.

                                          3
he had committed a new offense by possessing a firearm within five years of his

release from confinement following a felony conviction. 4

      At his trial, appellant pled not guilty to aggravated robbery and not true to the

State’s petitions to proceed to adjudication in the aggravated assault cases. The

jury convicted appellant of aggravated robbery, and after the jury received evidence

from several witnesses related to appellant’s punishment, it assessed fifty years’

confinement.5      The trial court sentenced him accordingly.     It also revoked his

community supervision in the three aggravated assault cases, found him guilty of

each of those charges, and sentenced him to twenty years’ confinement on each

charge to run concurrently with his other sentences. Appellant filed notices of

appeals on all cases.

                                  Appellant’s Arrest

      In his second issue, appellant contends that the trial court abused its

discretion by denying his motion to suppress evidence obtained as the result of an

allegedly unlawful entry into the Grand Prairie apartment when the police arrested

him.6 W e review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim.


      4
           See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009).
      5
           Appellant pled true to the repeat offender notice of his indictment.
      6
        W e will resolve appellant’s second issue first because the admissibility of
the evidence that the police obtained after appellant’s arrest affects our disposition
of appellant’s first issue.

                                            4
App. 2007); Orr v. State, 306 S.W .3d 380, 398 (Tex. App.—Fort W orth 2010, no

pet.). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W .2d 539, 543 (Tex. Crim. App. 1990); Orr, 306

S.W .3d at 398. The trial judge is the sole trier of fact and judge of the credibility of

the witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W .3d 17, 24–25 (Tex. Crim. App. 2007); Orr, 306 S.W .3d at 398.

      Therefore, we give almost total deference to the trial court’s rulings on (1)

questions of historical fact, even if the trial court’s determination of those facts was

not   based     on    an    evaluation     of   credibility   and    dem eanor,     and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador, 221 S.W .3d at 673; Montanez v. State, 195 S.W .3d 101,

108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W .3d 644, 652–53 (Tex.

Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the

credibility and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W .3d at 673; Johnson, 68 S.W .3d at 652–53.

Stated another way, when reviewing the trial court’s ruling on a motion to suppress,

we must view the evidence in the light most favorable to the ruling. W iede, 214

S.W .3d at 24; State v. Kelly, 204 S.W .3d 808, 818 (Tex. Crim. App. 2006).

      The Fourth Amendment states, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated . . . .” U.S. Const. amend. IV; see State v. Powell, 306 S.W .3d


                                           5
761, 765 (Tex. Crim. App. 2010). W e have explained that the “right of a man to

retreat into his own home and to be free from unreasonable governmental intrusion

stands at the very core of the Fourth Amendment.” Green v. State, 78 S.W .3d 604,

608–09 (Tex. App.—Fort W orth 2002, no pet.) (citing Silverman v. United States,

365 U.S. 505, 511, 81 S. Ct. 679, 683 (1961)).

      Thus, absent exigent circumstances or consent, police may not enter a

residence under an arrest warrant for a nonresident without first obtaining a search

warrant. Steagald v. United States, 451 U.S. 204, 205–06, 101 S. Ct. 1642, 1644

(1981); Hudson v. State, 662 S.W .2d 957, 958 (Tex. Crim. App. 1984). However,

an arrest warrant authorizes entry into a defendant’s own residence when there is

reason to believe that the defendant is within. Payton v. New York, 445 U.S. 573,

602–03, 100 S. Ct. 1371, 1388 (1980) (explaining that if there “is sufficient evidence

of a citizen’s participation in a felony to persuade a judicial officer that his arrest is

justified,” the police may “require him to open his doors”); Reno v. State, 882 S.W .2d

106, 108 (Tex. App.—Fort W orth 1994, pet. ref’d); see also Morgan v. State, 963

S.W .2d 201, 204 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (explaining that if

the suspect is a co-resident of a third party, then Steagald does not apply, and

Payton allows the arrest of the subject under an arrest warrant).            An officer’s

reasonable belief, considering all the circumstances known to the officer, that a

residence is the defendant’s and that the defendant is inside authorizes entry into

the residence to arrest the defendant under an arrest warrant; the officer’s belief


                                            6
does not have to be proven correct. See Green, 78 S.W .3d at 611–14; Morgan, 963

S.W .2d at 204.

      Thus, appellant concedes that if the police had a reasonable belief that he

lived at the Grand Prairie apartment where he was arrested, the “arrest warrant

alone would support entrance into the apartment.” However, he contends that he

did not reside in Grand Prairie but was only Gibbs’s houseguest; therefore, he claims

that all evidence resulting from his allegedly unlawful arrest should have been

suppressed.

      At a pretrial hearing on appellant’s motion to suppress, Detective W right

testified that after he obtained appellant’s arrest warrant, he discovered an Arlington

apartment address on appellant’s identification card and went with other officers to

that address “as a starting point . . . to determine what [appellant’s] current address

was.” According to Detective W right, appellant’s father answered the door and said

that appellant did “not live there” but instead lived “in an apartment in Grand Prairie

with his girlfriend, Courtney Gibbs” and that appellant “would be at that apartment.”

      Appellant’s father went to the Grand Prairie apartment with the police. The

police knocked on the door and Gibbs answered, at which time officers removed her

from the front of the doorway, went into the apartment, and called out for appellant,

who was in a bedroom. The officers told appellant about his arrest warrant, and

according to Detective W right, appellant told him that he lived at that apartment and

refused to give the officers consent to search it. Detective W right secured a search


                                          7
warrant for the apartment and found items connecting appellant to Soliman’s

robbery.

      Appellant called his father and Gibbs to testify at the hearing. Appellant’s

father testified, among other facts, that

      •      when the police arrived in Arlington, they searched his apartment and
             went into appellant’s room;

      •      he told the police that appellant was “probably at his girlfriend’s house”
             because appellant stayed there overnight occasionally;

      •      appellant did not live at the Grand Prairie apartment because he spent
             most nights in Arlington and gave his father money for rent and food;

      •      appellant worked at the same place as his father, and his father would
             sometimes (about twice per week) pick appellant up at the Grand
             Prairie apartment before work after he had stayed with Gibbs overnight;

      •      on other mornings (about once per week), Gibbs would take appellant
             to work after he had stayed overnight with her; and

      •      he does not recall telling the police that appellant lived with Gibbs.

Gibbs testified to the following facts:

      •      appellant visited her at her apartment three or four times per week and
             had brought some of his possessions to her apartment because he was
             her boyfriend, but appellant did not live with her and was not going to
             stay with her overnight on the night of his arrest;

      •      appellant’s name is not on her lease contract;

      •      appellant did not help her with rent and did not have a key to her
             apartment; and

      •      she wrote a love letter to appellant three days before appellant’s arrest
             that included the words, “W e wake up to each other everyday,”



                                            8
             although she said that the letter was exaggerated and she did not
             literally wake up with him every morning.

      Obviously, these witnesses’ testimony required the trial court to resolve

conflicting evidence. At the conclusion of the suppression hearing, the trial court

specifically found that the witnesses appellant called were not credible, and the court

therefore denied appellant’s motion.

      As explained above, we must defer to the trial court’s credibility determination

and its resolution of conflicting evidence. See Amador, 221 S.W .3d at 673; Orr, 306

S.W .3d at 398, 400. If the trial court believed Detective W right’s testimony that

before the police entered the Grand Prairie apartment, appellant’s father told them

that appellant did not live with him but instead lived with Gibbs, we must defer to the

trial court’s rejection of the conflicting evidence offered by appellant’s witnesses in

that regard. Viewing the evidence in the light most favorable to the trial court’s

ruling, we hold that the trial court could have justifiably determined that the police

reasonably believed that appellant resided at the Grand Prairie apartment where

they executed the arrest warrant. 7 See Wiede, 214 S.W .3d at 24; Green, 78 S.W .3d

at 611–14; Morgan, 963 S.W .2d at 204. W e uphold both the trial court’s implicit



      7
         Appellant does not expressly challenge whether the police had a
reasonable belief that appellant was in the Grand Prairie apartment when the police
executed the warrant. W e note that even if the trial court had found Gibbs’s
testimony credible while finding appellant’s father’s testimony not credible, the
officers did not have the benefit of Gibbs’s opinion as to whether appellant resided
with her at the time that they chose to enter the apartment. Thus, the facts that she
testified to cannot defeat their reasonable belief that appellant lived there.

                                          9
determination that the police constitutionally entered the apartment to arrest

appellant and the court’s explicit denial of appellant’s motion to suppress the

evidence obtained as a result of his arrest. W e overrule appellant’s second issue.

                      Soliman’s Identification of Appellant

      In appellant’s first issue, he argues that the trial court erred by denying his

motion to suppress Soliman’s in-court identification. He asserts that the in-court

identification was based on a pretrial identification procedure that was allegedly

impermissible and suggestive because (1) Detective W right used a photographic

array on one sheet of paper rather than a sequential photographic lineup procedure,

(2) Soliman understood little English and Detective W right did not use an interpreter,

(3) Detective W right may not have told Soliman that the suspect may or may not

have been included in the photographic array, and (4) Soliman had a shaky

recollection at trial of what appellant was wearing during the robbery. See Gamboa

v. State, 296 S.W .3d 574, 581–82 (Tex. Crim. App. 2009); Stewart v. State, 198

S.W .3d 60, 62 (Tex. App.—Fort W orth 2006, no pet.).

      Assuming without deciding that appellant’s due process rights were violated

by the admission of Soliman’s identification testimony, we would be required to

determine whether the trial court’s admission of the testimony caused harm. 8 See

Tex. R. App. P. 44.2(a); Wheat v. State, 178 S.W .3d 832, 833 (Tex. Crim. App.



      8
        It is the “responsibility of the appellate court to assess harm.” Johnson v.
State, 43 S.W .3d 1, 5 (Tex. Crim. App. 2001).

                                          10
2005) (stating that except for “structural” errors, no error is categorically immune

from a harm analysis); Ledesma v. State, 828 S.W .2d 560, 563 (Tex. App.—El Paso

1992, no pet.); Cabello v. State, 655 S.W .2d 293, 296 (Tex. App.—Corpus Christi

1983, no pet.) (“[I]f the admission of Mejia’s identification testimony could be

considered error, it was harmless, in light of the unimpeached and uncomplained of

identification of the appellant by Officer Garza.”); see also Perez v. State, No.

03-07-00606-CR, 2009 W L 2195417, at *5 (Tex. App.—Austin July 23, 2009, no

pet.) (mem. op., not designated for publication) (“W e need not determine whether

the procedures used were impermissibly suggestive such that they created a

substantial likelihood of misidentification because, even assuming that Perez could

prevail on this argument, any error is harmless.”).

      W hen we review constitutional error, we “must reverse a judgment of

conviction or punishment unless [we determine] beyond a reasonable doubt that the

error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a).

To make this determination, we should calculate the probable impact of the error on

the jury in light of the other evidence; the error is not harmless if there is a

reasonable likelihood that it materially affected the jury’s deliberations. Neal v.

State, 256 S.W .3d 264, 284 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037

(2009). Stated another way, we must determine whether there is a reasonable

probability that the illegally obtained and wrongly admitted evidence “moved the jury

from a state of non-persuasion to one of persuasion on a particular issue.” Langham


                                         11
v. State, 305 S.W .3d 568, 582 (Tex. Crim. App. 2010); see Scott v. State, 227

S.W .3d 670, 690 (Tex. Crim. App. 2007) (explaining that the “question is the

likelihood that the constitutional error was actually a contributing factor in the jury’s

deliberations in arriving at th[e] verdict”).

       Soliman’s testimony that identified appellant as the robber is cumulative of

other evidence, including his own father’s testimony, that identified him as such.

During the trial, appellant’s father testified that when the police came to his house

to look for appellant, they showed him a photograph. The photograph was likely the

same as a photograph that Soliman identified at trial as being captured from the

video surveillance of the robbery. 9       Appellant’s father told the police that he

recognized appellant in the photograph. 10

       Also, while being questioned by Detective W right after his arrest, appellant

asked Detective W right if he could “work out some kind of deal.” 11 Later during the



       9
         Appellant’s father said that the photograph that the State’s attorney
showed to him during the trial, taken from the video surveillance of the robbery, was
similar to the photograph that he saw on the date of appellant’s arrest because the
picture showed appellant walking toward a convenience store’s counter, and the
convenience store looked the same in both pictures.
       10
        W hile trying to persuade the trial court to exclude appellant’s father’s
testimony that identified appellant in the photograph, appellant’s trial counsel stated
that admission of the testimony took “away all defensive theory” and “practically
amount[ed] to an instruction from the State to find [appellant] guilty.”
       11
         The video of appellant’s interrogation shows him slouched with his hands
over his face on many occasions as Detective Wright attempted to gain appellant’s
confession.

                                            12
interrogation, Detective W right pointed to a picture from the robbery and asked

appellant, “W hat caused this, man?” Appellant responded, “Too much stress. W ay

too much stress, man.” Next, in response to Detective W right’s telling appellant,

“This is a mistake,” appellant said, “I know that, sir, . . . I was too stressed out and

got fed up . . . and needed money.” Finally, toward the end of the interrogation,

when Detective W right asked appellant what he was thinking about on the night of

the robbery, appellant admitted to being “nervous” and “shaking” and stated that he

had “never really robbed somebody at gunpoint like that” and that he “didn’t even

want to go do it, man.”

      Along with appellant’s father’s testimony and appellant’s inculpatory

statements during his interrogation, the following evidence also links appellant to the

robbery:

      •      appellant’s black and white athletic shoes that he put on when he was
             arrested are “very similar” to shoes that Detective W right saw in the
             video of the robbery;

      •      appellant’s earrings that he was wearing when he was arrested look like
             the earrings that the robber wore;

      •      the black “do-rag” that appellant was wearing when he was arrested
             looks like the “do-rag” that the robber wore;

      •      Gibbs’s dark car that the police discovered while arresting appellant
             looks like the car from video taken from the restaurant located next to
             Quick Food Grocery;

      •      a loaded, silver/chrome gun that was found upon execution of the
             search warrant at the Grand Prairie apartment looks like the gun from
             the robbery;


                                          13
         •     a pair of long male’s shorts found in the Grand Prairie apartment that
               have a distinctive design on them and a hanging symbol from a belt
               loop appear to match corresponding features of shorts the robber wore;
               and

         •     the police found white gloves in a bedroom of the Grand Prairie
               apartment that appear to match the white gloves that the robber wore. 12

         Based on all of this evidence that links appellant to the offense, we cannot

conclude that there is a reasonable probability that Soliman’s identification of

appellant as the robber “moved the jury from a state of non-persuasion to one of

persuasion” regarding whether he was the robber. See Langham, 305 S.W .3d at

582.     Instead, we hold that Soliman’s identification of appellant did not likely

materially affect the jury’s deliberation. See Neal, 256 S.W .3d at 284.

         Thus, after carefully reviewing the record, we hold that even if the trial court

erred by overruling appellant’s motion to suppress Soliman’s in-court identification

of him, then beyond a reasonable doubt, such error did not contribute to his

conviction or punishment. See Tex. R. App. P. 44.2(a). W e overrule appellant’s first

issue.




         12
        W e note that appellant’s identification as the robber did not seem to be
the biggest issue at trial; appellant’s counsel spent almost his entire closing
argument talking about alleged violations of appellant’s constitutional rights.

                                            14
                                   Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgments.13



                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 1, 2010




      13
         Although appellant filed notices of appeal in each of his three aggravated
assault cases, neither of his issues directly contest the trial court’s revoking his
community supervision and finding him guilty in those cases. To the extent that
appellant’s appeals of his aggravated assault convictions are dependent on his
appeal of his aggravated robbery conviction, we must affirm the aggravated assault
convictions for the reasons stated above.

                                        15
