             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00198-CR
     ___________________________

   VICTOR L. ANDERSON, Appellant

                    V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 4
           Tarrant County, Texas
        Trial Court No. 1512410D


 Before Pittman, Birdwell, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                     I. INTRODUCTION

      A jury convicted Victor L. Anderson of three counts of robbery and sentenced

him to twenty years’ confinement on each count. Anderson raises three points of

error complaining that the evidence is insufficient to support his conviction, that the

trial court erroneously denied his motion to suppress evidence, and that the State

failed to prove beyond a reasonable doubt that he had committed the extraneous

offense or bad act offered against him during the punishment phase of trial. We

affirm the trial court’s judgment.

                                     II. BACKGROUND

A.    Robbery

      Aaron Garcia was a manager and shift leader at Taco Cabana restaurant

number 336 located on South Hulen Street in Fort Worth, Tarrant County, Texas,

and brothers Lacamery and Lamarcus Deckard were restaurant employees.1 Garcia

drove Lacamery and Lamarcus to work on the morning of August 20, 2017, and they

arrived at the restaurant at 5:00 a.m. They prepared food and readied the restaurant

before it opened at 6:00 a.m. Each of the three employees was responsible for the

restaurant’s cash. Garcia unlocked the restaurant doors at 6:00 a.m.




      1
       For clarity, we refer to the brothers by their first names.


                                            2
          At 6:05 a.m., a black man entered the restaurant carrying what appeared to be

an M16 gun wrapped in a towel or a shirt. His face was covered with a black shirt,

and only his eyes and forehead were visible. The man was wearing a shirt, a bluish

hoodie sweatshirt or jacket, and gray sweatpants that were a bit short and had stripes

down the sides. The man was possibly wearing jeans under them.

          The man approached Lamarcus, who was signing in at the front register. The

man shouted and instructed the employees to unlock the registers. The till from the

first register was already on the counter, and the man took the $135 cash that was in

it. The second register drawer had no till, and the man instructed the employees to go

to the safe in the office at the back of the restaurant.

          Garcia complied with the man’s instructions to unlock the safe and handed him

the four or five tills that were inside it. The safe was required to have $1,500, and

each till typically contained $300 to $500. All of the tills that the man took contained

cash, and one of the tills contained a debit card that managers were permitted to use

for items such as out-of-stock products. After instructing the employees to get on the

ground, the man left through the back door.

          During the robbery, Lamarcus felt threatened, was afraid for his life, and

wondered whether he would get out alive. Lacamery believed the man had a gun,

feared for his and his younger brother’s safety, and was afraid that the man might

come back. Garcia was afraid of being hurt and was concerned for his employees’

safety.

                                             3
      Garcia called 911, and the recording of that call was admitted in evidence

without objection. Garcia, Lamarcus, and Lacamery were unable to successfully

identify the robber from a photo lineup. Security camera recordings of the robbery

and crime scene photos were introduced in evidence at trial without objection.

B.    Police Pursuit and Arrest

      On the morning of August 20, 2017, Fort Worth Police Officer Richard

Stutheit completed desk duty downtown at 5:45 a.m. and returned his patrol car to the

west division. At the west division, Stutheit, who was still in his uniform equipped

with a body camera, parked his patrol car and began loading personal items into his

personal vehicle before driving downtown again to his part-time job where he

provided security services for a church. Over his radio, Stutheit heard a call regarding

a black male with his face partially covered who had robbed the Taco Cabana on

South Hulen Street and was driving a black SUV or pickup truck. Although he was

off-duty, Stutheit testified that he always had a duty to act as a police officer, even if

he was out of uniform or not in a patrol car. Stutheit did not initially respond to the

call because two on-duty officers who were closer to the restaurant were already

responding.

      While driving to the church at about 6:15 a.m., Stutheit observed a dark gray

Chevy pickup truck stopped at least one and one-half car lengths behind the stop line

at a red light located two miles from the Taco Cabana restaurant. When Stutheit

looked to see whether the driver might be using a cell phone, he saw that the driver

                                            4
was a black male wearing a white T-shirt and was leaning over and handling

something in the passenger seat.

       Recalling the initial robbery call, Stutheit requested additional information from

the dispatcher about the robbery suspect and his vehicle, followed the truck onto

Interstate 20 eastbound, and obtained the truck’s license plate number. Using a law-

enforcement approved pacing method, Stutheit, who was driving 80 miles per hour to

keep up with the vehicle, estimated that the truck was traveling over 80 miles per hour

in a 65 mile per hour speed zone. Stutheit observed the driver driving recklessly as he

made several lane changes without signaling, drove the truck into a lane occupied by

another vehicle, jerked and crossed the truck back into the shoulder lane momentarily,

and came within a few feet of hitting a wall.

       Because Stutheit had observed these traffic violations and the truck was now in

the south sector of Fort Worth, Stutheit contacted the south division to send units to

assist in making a traffic stop.2 As he followed the truck, Stutheit continued to

observe the driver committing traffic violations including driving over 80 miles per

hour, changing lanes without signaling, and cutting across a lane of traffic to exit the

highway ahead of another vehicle. When the truck stopped at a light, Stutheit stayed

back because his vehicle’s windows were not tinted, and the driver of the truck would

have been able to see Stutheit’s uniform. When the light turned green, the driver

       2
         Stutheit testified that it is against “Fort Worth policy” for an officer to initiate
a traffic stop in a personal vehicle.


                                             5
waited until the light turned yellow before driving the truck through the intersection.

After making several turns, the driver turned the truck abruptly into a gas station

parking lot but did not park the truck next to a gas pump. Stutheit activated his body

camera as he parked directly behind the truck, which had pulled up next to an

unknown man in a green shirt. As Stutheit was exiting his vehicle, the driver in the

truck was handing paper currency toward the man in the green shirt, but no money

was transferred.

         To permit marked units to arrive and take over the investigation of the traffic

violations and the driver’s possible ties to the robbery, Stutheit approached the driver

and told him to turn off the vehicle. In court, Stutheit identified Anderson as the

driver of the truck that he had followed for five to ten minutes. When Anderson

exited the vehicle, Stutheit saw paper currency in the truck’s front seats.

         The photographic and body camera evidence from the gas station encounter

showed Anderson wearing a white T-shirt and gray sweatpants with striping down the

sides. At the scene, Stutheit received still photographs from the restaurant security

cameras that showed a black male wearing a gray sweatshirt, a white undershirt, gray

sweatpants with a distinctive set of white stripes down the sides, and dark-colored

shoes.

         Marked police cars and on-duty officers arrived within three minutes.

Anderson verbally consented to a search of the truck, but after seeing the cash in

plain sight in the front seat of the truck, the officers decided to obtain a search

                                            6
warrant. Anderson was initially arrested on two outstanding traffic warrants, and the

police obtained a search warrant for the Chevy Silverado truck. During a search of

the truck on August 21, 2017, Officer Jessica Wright found a Taco Cabana 336 Visa

purchasing card, a T-shirt with a tire iron in it, a hooded sweater with a diamond-

shaped emblem on the front, Anderson’s Enterprise rental car agreement for the

Silverado truck, four tills, and cash and rolled coins totaling more than $1,300 that

were found near the driver’s and front-passenger’s seats of the truck. Wright testified

that the tire iron in the T-shirt looked like a gun.       One latent fingerprint of

comparative value was found on one of the tills, but it did not match Anderson.

Wright acknowledged that this is not uncommon: because a till is used by many

people, it can be difficult to obtain fingerprints from it. The trial court admitted in

evidence without objection Stutheit’s body camera video recording, a map, photos of

the truck, Anderson’s clothing, loose paper currency, coins, and a purchase card

found inside the truck.

      Detective Harold Cussnick investigates robberies for the Fort Worth Police

Department. Photographs of Anderson that were taken during his police interview

shortly after his initial arrest show him wearing a white T-shirt and sweatpants with

stripes down the sides, and Cussnick noted that Anderson’s blue jeans could be seen

under his sweatpants. The white T-shirt and sweatpants that Anderson was wearing

that day were admitted in evidence. Anderson was subsequently arrested for the Taco

Cabana robbery.

                                          7
C.       Anderson’s Testimony

         Anderson testified that around 4:30 a.m. on August 20, 2017, he left the

company of a paramour in Crowley. He was wearing blue jeans and a T-shirt, and as

he was driving, he saw someone driving his truck that had been stolen a week earlier.

Anderson turned to follow his truck but gave up his search after thirty to forty

minutes. He drove into a parking lot and saw several men in an SUV parked near a

dumpster. When a constable drove near the men, the men fled, and Anderson saw

one of them drop something. After the men were gone, Anderson drove over to the

dumpster and found a bag with coins and paper money and trays, along with some

shirts, socks, and sweatpants. Anderson put on the socks and pulled the sweatpants

over his jeans and jumped into the dumpster to retrieve more paper money from the

dumpster. He placed the money on the front seat of the truck and placed the bag

filled with money into his truck. The bag with money broke after he placed it in his

truck.

         After he left, Anderson noticed that someone was following him in a car, and

he became concerned that the men he had seen earlier had changed to a different

vehicle. Anderson panicked because the car changed lanes when he changed lanes.

Because the truck needed gas, Anderson eventually pulled into the gas station to buy

fuel and to find out who was following him. As he parked, Anderson saw a homeless

person and was going to give him some money. Anderson then saw a police officer



                                           8
get out of the car. The jury rejected Anderson’s explanation and convicted him of

robbery by threat as charged in counts three, four, and five of the indictment.

D.    Punishment

      Jack in the Box restaurant manager Troylicia Riser testified during the

punishment phase of trial. At about 4:00 a.m. on August 20, 2017, Riser and two

coworkers, Alexis and Kelly, were working when a dark blue or gray truck quickly

approached the restaurant. Riser, who was standing outside, tried to quickly reenter

the restaurant, but before she reached the door, a man exited the truck and pointed

what she believed was a gun wrapped inside a shirt toward her back. Riser was scared

and thought she was in danger. Riser used the headset she was wearing to warn her

coworkers that they were being robbed.

      The man pushed Riser behind the counter, told her to open the cash register,

and reached in to remove the till that had $150 in it. Riser ran to the back of the

store, and as the man followed her, he caught Alexis, pushed her on the ground, and

kicked her. When Riser attempted to help Alexis by pushing the man, the man

pushed Riser against the ice machine and told her to open the safe. Riser told the

man that she did not know the code for opening the safe, and Alexis tripped the man,

who then dropped the money. The man picked up the money, and as he left, Riser

ran after him and recorded him with her phone as he got into his truck and drove

away. Afterward, Riser identified someone other than Anderson in a photo lineup.



                                           9
         The trial court admitted in evidence without objection a Jack in the Box

surveillance camera recording along with still images from that video. Riser identified

the images from the recording as accurately depicting the robbery. The video and

images that were admitted in evidence and published to the jury show that the man

who robbed the Jack in the Box restaurant was wearing sweatpants with stripes down

the sides, a white shirt covered by a hooded shirt with a diamond-shaped emblem,

and a black garment around his face.

         Anderson also testified during punishment. He noted that no witness had

identified him as the robber. Although Anderson agreed that the person in the Jack in

the Box photo was wearing a sweater with a diamond logo and that a sweater with a

diamond logo was found in his truck, Anderson denied that he was the person in the

photograph. The jury assessed punishment for each count of robbery at twenty years’

confinement, and the trial court sentenced Anderson in conformity with the jury’s

assessment.

                                 III. DISCUSSION

A.       Sufficiency of the Evidence

         We first address Anderson’s second point of error in which he contends the

evidence is not sufficient to support his conviction. Jenkins v. State, 493 S.W.3d 583,

599 (Tex. Crim. App. 2016); Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App.

2004).     Anderson specifically complains that none of the Taco Cabana robbery

victims identified him as the person who robbed them. See Johnson v. State, 673 S.W.2d

                                          10
190, 196 (Tex. Crim. App. 1984) (noting that State must prove that the party charged

was the person who committed the offense or was a participant in its commission).

      1.     Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

      This standard gives full play to the factfinder’s responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight and

credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.

Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate the

evidence’s weight and credibility and substitute our judgment for the factfinder’s.

Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reasonable based on the evidence’s cumulative force when viewed in the light

most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court

                                          11
conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must consider the cumulative force of all the evidence.”). We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict, and we must

defer to that resolution. Murray, 457 S.W.3d at 448–49.

       To determine whether the State has met its Jackson burden to prove a

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v. State,

389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as

authorized by the indictment” means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging instrument.

See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the

State pleads a specific element of a penal offense that has statutory alternatives for

that element, the sufficiency of the evidence will be measured by the element that was

actually pleaded, and not any alternative statutory elements.”). The standard of review

is the same for direct and circumstantial evidence cases; circumstantial evidence is as

probative as direct evidence in establishing guilt. Jenkins, 493 S.W.3d at 599.

                                            12
       2.     Analysis

              a.     Robbery Elements and Hypothetically Correct Jury Charge

       To prove robbery by threat, the State must prove that the accused, in the

course of committing theft and with intent to obtain or maintain control of the

property, intentionally or knowingly threatened or placed another in fear of imminent

bodily injury or death. Tex. Penal Code Ann. § 29.02. The offense of theft occurs

when a person unlawfully appropriates property with the intent to deprive the owner

of the property.3 See id. § 31.03(a).

       Intent to deprive is determined from the accused’s words and acts. Griffin v.

State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981). Evidence that an

accused exercised control over property without consent of the owner, intending to

deprive him of it, is always sufficient to prove theft. Chavez v. State, 843 S.W.2d 586,

588 (Tex. Crim. App. 1992). Consequently, if an accused is found in possession of

recently stolen property and at the time of his arrest fails to make a reasonable

explanation showing honest acquisition of the property, the jury may draw an

inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); see

       3
        The term “[a]ppropriate” includes both acquiring and otherwise exercising
control over the property. Tex. Penal Code Ann. § 31.01(4)(B). Appropriation is
unlawful when: (1) it is without the owner’s effective consent; or (2) the property is
stolen and the defendant appropriates the property knowing it was stolen by another.
Id. § 31.03(b). “Deprive” means to dispose of property in a manner that makes
recovery of the property by the owner unlikely. Id. § 31.01(2)(C). An “[o]wner” is a
person who has title to property, possession of the property, whether lawful or not, or
a greater right to possession of the property than the defendant. Id. § 1.07(a)(35)(A).


                                             13
Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977) (holding that if accused

offers explanation at time of arrest regarding possession of recently stolen property,

record must show that explanation is either false or unreasonable before evidence

supporting the conviction will be deemed sufficient; whether the accused’s

explanation for possessing stolen property is false or unreasonable is a question for

factfinder); see also Chudleigh v. State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976)

(holding that knowledge that property was stolen can be established by circumstantial

evidence).

      Counts three through five of the indictment4 allege that Anderson, “in the

County of Tarrant and State [of Texas] on or about the 20th day of August, 2017, did

intentionally or knowingly, while in the course of committing theft of property and

with intent to obtain or maintain control of said property, threaten or place”

Lamarcus,5 Garcia,6 or Lacamery7 “in fear of imminent bodily injury or death.”

Therefore, the State was required to prove: (1) that Anderson committed theft of

property with the intent to obtain or maintain control of that property; and (2) that in

      4
       At the commencement of trial, the State waived counts one and two of the
indictment.
      5
       Lamarcus Deckard is identified as the alleged victim in Count Three of the
indictment.
      6
       Aaron Garcia is identified as the alleged victim in Count Four of the
indictment.
      7
       Lacamery Deckard is identified as the alleged victim in Count Five of the
indictment.

                                          14
the course of this theft, Anderson intentionally or knowingly threatened Lamarcus,

Garcia, or Lacamery or placed each victim in fear of imminent bodily injury or death.

See Jenkins, 493 S.W.3d at 599; Anderson v. State, 461 S.W.3d 674, 679 (Tex. App.—

Texarkana 2015, pet. ref’d).

              b.    Identity

       In asserting his sufficiency challenge, Anderson does not dispute that he was

found in possession of the money, clothing, tire iron, tills, and purchasing card located

in his car. Rather, he complains that the evidence is insufficient to establish his

identity as the Taco Cabana robber. Because Anderson testified that others had

robbed the Taco Cabana and that he came upon the clothes and money that had been

abandoned after the robbery, he contends the jury’s finding that he was the robber is

irrational.

       The lack of eyewitness identification is not dispositive of the identity element.

Identity may be proven by circumstantial or direct evidence. Earls v. State, 707 S.W.2d

82, 85 (Tex. Crim. App. 1986); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.––

Houston [14th Dist.] 2001, pet. ref’d). “[I]dentity may be proven by inferences.”

Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.––Austin 2000, pet. ref’d); see also

Smith, 56 S.W.3d at 744 (“Identity may be proved through direct or circumstantial

evidence, and through inferences.”). When identity is at issue, we must consider the

combined and cumulative force of all the evidence. See Merritt v. State, 368 S.W.3d



                                           15
516, 526 (Tex. Crim. App. 2012).        We do not employ a “divide-and-conquer”

approach to reviewing the evidence. Id.

      The evidence implicating Anderson was, by and large, circumstantial. In a

circumstantial evidence case, it is not necessary that every fact point directly to the

accused’s guilt. Livingston v. State, 739 S.W.2d 311, 329–30 (Tex. Crim. App. 1987); see

Temple v. State, 390 S.W.3d 341, 360–63 (Tex. Crim. App. 2013) (holding that

circumstantial evidence allowed jury reasonably to infer guilt). The fact that a witness

cannot positively identify a suspect is an issue to be weighed by the jury. Livingston,

739 S.W.2d at 329–30; see Valenciano v. State, 511 S.W.2d 297, 299 (Tex. Crim. App.

1974) (stating lack of positive identification is jury issue). When the State relies on

circumstantial evidence, identification of the defendant is sufficient when, considered

in relation to all the testimony and evidence, the conclusion is warranted by the

combined and cumulative force of all the circumstances. See Temple, 390 S.W.3d at

360–63; Livingston, 739 S.W.2d at 330. A clothing description combined with other

evidence regarding the circumstances of an offense has been held to be sufficient in a

circumstantial-evidence case. Livingston, 739 S.W.2d at 330.

      In this case, although no witness correctly identified Anderson in a photo

lineup, the witnesses generally described the robber and his clothing and the vehicle

he was driving. The depictions of the robber in the Taco Cabana security camera

images comport with the witnesses’ descriptions of the robber and his clothing.

Within an hour of the robbery, Stutheit observed a truck that matched the description

                                          16
of the vehicle the robber used and observed its driver committing various traffic

violations. After the truck stopped at the gas station, police found Anderson driving

the truck, which matched the one described by the robbery victims, and found that

Anderson was in possession of cash, coins, tills, a Taco Cabana 336 purchase card,

and a tire iron wrapped in a shirt, while also wearing and possessing the clothing

described by the witnesses and as shown in the Taco Cabana surveillance video.

      As noted, the jury is permitted to draw an inference of guilt if the defendant is

found in possession of recently stolen property and at the time of arrest fails to make

a reasonable explanation showing his honest acquisition of the property. Hardesty,

656 S.W.2d at 76; Adams, 552 S.W.2d at 815. Here, the jury was free to disbelieve

Anderson’s testimony suggesting that he found the cash, coins, till, and purchase card,

his explanation that he innocently gained possession of the stolen items, and his

assertion that someone else committed the aggravated robbery at the Taco Cabana.

See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (providing that

factfinder is entitled to judge credibility of witnesses and can believe all, some, or

none of testimony presented).

      The combined and cumulative force of all the evidence was sufficient to permit

a rational factfinder to find all the essential elements of robbery by threat beyond a

reasonable doubt. Because this evidence is sufficient to support the jury’s resolution

of conflicting inferences and its finding that Anderson is the person who robbed the



                                          17
victims, we defer to that resolution. Because the evidence is sufficient to support

Anderson’s robbery convictions, we overrule Anderson’s second point of error.

B.    Unlawful Detention

      Prior to trial, Anderson filed a motion to suppress the evidence obtained from

his truck on the basis that the evidence was improperly seized and was obtained as a

result of an illegal stop, detention, arrest, and search in violation of his First and

Fourth Amendment rights.       The trial court did not hear Anderson’s motion to

suppress before trial commenced. After voir dire, defense counsel urged the trial

court to rule on the suppression motion, and the trial court noted that it had stated on

the preceding day that “it would be done during the trial.” Defense counsel urged the

trial court to consider the motion to suppress before the State put on evidence that

could damage Anderson’s defense.        When the State offered and the trial court

admitted in evidence the tire tool, T-shirt, sweater with diamond emblem, Taco

Cabana purchase card, truck rental receipt, and tills, defense counsel stated, “No

objection subject to our pretrial motion.” After the State closed its evidence and

defense counsel had re-urged the motion to suppress, the trial court overruled the

motion. In his second point of error, Anderson complains that Stutheit unlawfully

stopped him miles away from the alleged traffic offenses in violation of his Fourth

Amendment rights, and that the trial court should have suppressed the evidence

flowing from the stop.



                                          18
      1.     Standard of review

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 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); Best v. State, 118 S.W.3d 857, 861 (Tex.

App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of

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

214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to

the trial court’s rulings on (1) questions of historical fact, even if the trial court

determined those facts on a basis other than evaluating credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on evaluating 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 witnesses’

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

de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.

App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a suppression

motion, we must view the evidence in the light most favorable to the ruling. Wiede,

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

                                            19
the record is silent on the reasons for the trial court’s ruling, or when there are no

explicit fact findings and neither party timely requested findings and conclusions from

the trial court, as here, we imply the necessary fact findings that would support the

trial court’s ruling if the evidence, viewed in the light most favorable to the trial

court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s

legal ruling de novo unless the implied fact findings supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

       In determining whether a trial court’s decision is supported by the record, we

generally consider only evidence adduced at the suppression hearing because the

ruling was based on it rather than on evidence introduced later. See Gutierrez v. State,

221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State, 917 S.W.2d 799, 809

(Tex. Crim. App. 1996). But this general rule does not apply when the parties

consensually relitigated the suppression issue during trial on the merits. Gutierrez,

221 S.W.3d at 687; Rachal, 917 S.W.2d at 809. If the State raised the issue at trial

either without objection or with the defense’s subsequent participation in the inquiry,

the defendant is deemed to have elected to re-open the evidence, and we may

consider the relevant trial testimony in our review. Rachal, 917 S.W.2d at 809. In this

case, because the suppression motion was only litigated during the trial on the merits,

the relevant trial evidence is the only evidence available for our consideration in

reviewing the trial court’s ruling on the motion. Cf. Gutierrez, 221 S.W.3d at 687

                                            20
(explaining that review of suppression evidence is not limited to pre-trial evidence

when suppression motion is relitigated during trial).

      2.     Warrantless Stop

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials.     U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24.             A

defendant seeking to suppress evidence on Fourth Amendment grounds bears the

initial burden to produce some evidence that the government conducted a warrantless

search or seizure that he has standing to contest. State v. Martinez, 569 S.W.3d 621,

623–24 (Tex. Crim. App. 2019) (quoting Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.

App. 1986), disavowed in part on other grounds by Handy v. State, 189 S.W.3d 296, 298–99

n.2 (Tex. Crim. App. 2006)); see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104–05,

100 S. Ct. 2556, 2561 (1980). Once the defendant does so, the burden shifts to the

State to prove either that the search or seizure was conducted pursuant to a warrant

or, if warrantless, was otherwise reasonable. Martinez, 569 S.W.3d at 623–24 (quoting

Russell, 717 S.W.2d at 9); Amador, 221 S.W.3d at 672–73. If the State produces

evidence of a warrant, the burden of proof shifts back to the defendant to show the

warrant’s invalidity. Martinez, 569 S.W.3d at 624 (quoting Russell, 717 S.W.2d at 9–10).

      A detention, as opposed to an arrest, may be justified on less than probable

cause if a person is reasonably suspected of criminal activity based on specific,

articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v.

State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful

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temporary detention when he reasonably suspects that an individual is violating the

law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the

totality of the circumstances, the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude that a particular person is, has been, or soon will be engaged in criminal

activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards the

detaining officer’s subjective intent and looks solely to whether the officer has an

objective basis for the stop. Id. The facts adduced to give rise to a reasonable

suspicion need not show that a person has committed, is committing, or is about to

commit a particular and distinctively identifiable penal offense. Derichsweiler v. State,

348 S.W.3d 906, 916–17 (Tex. Crim. App. 2011).

      An officer has probable cause to stop and arrest a driver if he sees the driver

commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App.

2005) (recognizing that section 543.001 of the Texas Transportation Code provides

that any peace officer may arrest without warrant a person found committing a

violation of the “Rules of the Road” under title 7, subtitle C); see State v. Ballman,

157 S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Tex. Code Crim.

Proc. Ann. art. 14.01(b) (“A peace officer may arrest an offender without a warrant

for any offense committed in his presence or within his view.”).            The record

establishes that Stutheit observed Anderson drive at a speed in excess of the posted

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speed limit, make multiple lane changes without using a turn signal, drive recklessly by

driving into an occupied lane, jerk back into his lane, almost hit a wall, cut across

multiple lanes before exiting the highway directly in front of another vehicle, and

remain stopped at a green light before proceeding through an intersection during a

yellow light. See Tex. Transp. Code Ann. §§ 545.104 (“An operator shall use the

signal . . . to indicate an intention to turn, change lanes, or start from a parked

position.”), 545.401 (“A person commits an offense [of reckless driving] if the person

drives a vehicle in wilful or wanton disregard for the safety of persons or property.”);

Dogay v. State, 101 S.W.3d 614, 618 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(officers who observed defendant speed and change lanes without using proper turn

signals had probable cause to stop and arrest defendant); cf. Wehring v. State,

276 S.W.3d 666, 671 (Tex. App.—Texarkana 2008, no pet.) (holding that by failing to

signal intent to turn and then turning in the presence of a peace officer, defendant

committed traffic violation that reasonably permitted defendant’s detention and did

not require suppression of evidence gathered after lawful traffic stop). Given his

observations of Anderson’s traffic offenses, Stutheit, as a peace officer, was permitted

to detain Anderson.

      3.     Delay in Effecting Stop and Stutheit’s Off-Duty Status

      Relying on State v. Dixon, 151 S.W.3d 271 (Tex. App.—Texarkana 2004), aff’d,

206 S.W.3d 587 (Tex. Crim. App. 2006), Anderson contends that Stutheit’s failure to

stop him immediately after observing his traffic violations rendered his later detention

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unreasonable. In Dixon, the court of appeals focused on the trial court’s finding that

the 3.2-mile delay between the officer’s observation of an unsignaled turn and the

traffic stop was unreasonable.       Id. at 274–75. However, the court of appeals

emphasized that the trial court made a finding that nothing had prevented the officer

from conducting the stop sooner and clarified that it was not holding that a 3.2-mile

delay would be unreasonable in every case. Id. at 275. The Court of Criminal Appeals

granted the State’s petition for discretionary review but held that the dispositive issue

in Dixon was not the delay between the purported traffic offense and the officer’s

traffic stop but was instead the trial court’s determination that no traffic offense was

in fact committed. See Dixon, 206 S.W.3d at 590–91. Anderson also suggests that

Stutheit executed a stop in violation of department policy. We disagree with each of

these contentions.

      First, a police officer’s discharge of police authority in the presence of criminal

activity is not limited by the officer’s off-duty status. Morris v. State, 523 S.W.2d 417,

418 (Tex. Crim. App. 1975) (citing Wood v. State, 486 S.W.2d 771 (Tex. Crim. App.

1972)). Consequently, while Stutheit was off-duty, he was not restricted from seeking

to have Anderson stopped for traffic violations while he abided by police-department

policy that barred him from making the stop in his personal vehicle.

      Stutheit’s delay in stopping Anderson arose directly from the fact that he was

off-duty and driving his personal vehicle as he followed Anderson, and pursuant to

police-department policy, Stutheit was unable to stop Anderson for the violations he

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observed. During this delay, Stutheit called police dispatch to request that an on-duty

officer in a patrol unit effectuate a stop for the continuing traffic violations that

Stutheit was observing. There is no evidence in the record that Stutheit ever signaled

to Anderson that he should stop. Stutheit followed Anderson for five to ten minutes

and stopped when Anderson stopped, soon after Stutheit had observed Anderson

recklessly exit the highway while driving in excess of 80 miles per hour and remain

stopped at a green light before proceeding through an intersection on a yellow light.

Stutheit’s body camera shows that officers in a marked vehicle arrived at the gas

station within three minutes after Anderson and Stutheit had stopped.

      The trial court, which did not enter findings of fact or conclusions of law,

could have reasonably inferred from the evidence that the police stop was fully

effectuated within minutes by on-duty officers and was lawful. The evidence showed

that Stutheit’s detention of Anderson was reasonable based on Anderson’s erratic

driving and traffic violations and the fact that Anderson was driving a truck that

matched the description of the robbery suspect’s truck.         The lawful stop and

reasonable detention of Anderson did not bar the admission of evidence that

Anderson sought to suppress.

      Viewed in the light most favorable to the trial court’s ruling, the evidence

supports the trial court’s implied findings, and the implied fact findings as supported

by the record are also dispositive of the trial court’s legal ruling. See Garcia-Cantu,

253 S.W.3d at 241; Kelly, 204 S.W.3d at 819. The trial court’s denial of Anderson’s

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motion to suppress evidence was not error. We overrule Anderson’s second point of

error.

C.       Punishment Evidence

         In his third point of error, Anderson complains that the trial court erroneously

admitted evidence of an unadjudicated bad act during the punishment phase of trial

because the State failed to prove beyond a reasonable doubt that Anderson had

committed the bad act. The State contends that Anderson failed to preserve this issue

for our consideration and alternatively asserts that any error is not reversible.

         We agree that Anderson failed to preserve this point of error for our

consideration. To preserve an error for this court’s review, a defendant must make a

timely and specific objection at the time the evidence is offered. See Tex. R. App. P.

33.1(a)(1). Anderson did not assert an objection in the trial court that comports with

the complaint he now raises on appeal. See Nelson v. State, 607 S.W.2d 554 (Tex. Crim.

App. [Panel Op.] 1980) (stating that point of error in brief must comport to objection

at trial). By failing to object to such evidence at the time it was offered, Anderson has

procedurally defaulted any error arising from the trial court’s consideration of the

prior bad act attributed to him.

         Even if Anderson had preserved this point, he would not be entitled to relief.

During punishment, evidence may be offered as to any matter the court deems

relevant to sentencing, including any other evidence of an extraneous crime or bad act

that is shown beyond a reasonable doubt by evidence to have been committed by the

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defendant or for which he could be held criminally responsible, regardless of whether

he has previously been charged with or finally convicted of the crime or act. Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). However, the State need not prove all the

elements of an extraneous offense for the offense to be admissible. Haley v. State,

173 S.W.3d 510, 515 (Tex. Crim. App. 2005); Spence v. State, 795 S.W.2d 743, 759 (Tex.

Crim. App. 1990).

          Before the jury can consider this type of evidence in assessing punishment, it

must be satisfied beyond a reasonable doubt that the bad acts are attributable to the

defendant. Haley, 173 S.W.3d at 515. The statute requires the burden of proof

beyond a reasonable doubt to be applied to a defendant’s involvement in the act itself,

instead of the elements of a crime necessary for a finding of guilt. Id. The State need

not prove every element of a criminal offense, and a finding of guilt is not required.

See Gomez v. State, 380 S.W.3d 830, 839 (Tex. App.––Houston [14th Dist.] 2012, pet.

ref’d).

          Although Riser did not identify the person who robbed the Jack in the Box

restaurant where she worked on the morning of August 20, 2017, other evidence was

admitted without objection that shows a dark truck driving to the front of the

restaurant and a man with his face covered, wearing gray sweatpants with stripes

down the sides and a white shirt covered by a hooded sweatshirt bearing a diamond

logo entering the restaurant and holding something that looked like a gun wrapped in

a cloth against Riser’s back.       The evidence is sufficient to establish beyond a

                                            27
reasonable doubt that the bad act depicted by the evidence admitted during

punishment is attributable to Anderson. We overrule Anderson’s third point of error.

                                IV. CONCLUSION

      Having overruled Anderson’s three points of error on appeal, we affirm the

trial court’s judgment.


                                                   /s/ Dana Womack

                                                   Dana Womack
                                                   Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 6, 2019




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