Affirmed and Memorandum Opinion filed September 25, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00446-CR

                  TROY ANTHONY ROBERTSON, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1460174

                  MEMORANDUM OPINION

      A jury found appellant guilty of aggravated robbery and assessed
punishment at forty years’ confinement. Appellant contends that the evidence is
insufficient to support his conviction and that the trial court erred by overruling his
motion to suppress. We affirm.
                               I.     BACKGROUND

      Two masked men entered a She’s Happy Hair store in the Greenspoint area
of Harris County. The men wielded black and silver pistols. The store’s manager
and another employee (the complainant) locked themselves in the back room
during the robbery. One of the robbers exclaimed, “If you don’t open the door, I
am going to start shooting.” The manager testified that the complainant was
panicking and seemed very scared.

      Surveillance video of the robbery was admitted as an exhibit at trial, and a
Harris County Sherriff’s Office deputy estimated that both suspects were under
five feet, five inches tall; one suspect was skinnier than the other. The manager
testified that the robbers were African American, and one of them wore Nike Air
Jordan Infrared sneakers.

      The robbers stole two pillowcases full of hair extensions, among other
things. A witness saw the men get into a Chevrolet Trailblazer, which was being
driven by a young woman. The Trailblazer got on Interstate 45, and the witness
pursued in his pickup truck. The witness called 911 to report the activities and the
license plate number of the Trailblazer.

      The witness followed the Trailblazer onto a side street where the two men
got out of the Trailblazer and fired at least fifteen rounds at the witness. The
witness floored it and avoided being shot, though his truck was shot multiple times.
Police officers ultimately recovered shell casings from the scene, both 9mm and
.40 caliber. The witness, undeterred, circled back and continued to pursue the
Trailblazer until one man jumped out and ran into an apartment complex. The
witness stopped and waited for police to arrive.




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      Deputies with the Harris County Sheriff’s Office learned that the Trailblazer
was registered to appellant’s girlfriend, Kelsey Gardner. She had an outstanding
warrant for her arrest. A deputy also learned that appellant “fit the height, weight
and the physical description as one of the suspects in the [surveillance] video.”

      On the day after the robbery, deputies went to Gardner’s apartment. Gardner
answered the door, and a deputy observed what appeared to be marijuana on the
floor. The deputy followed Gardner into the apartment when she went to get her
identification card. The deputy saw more marijuana on a kitchen counter and some
clothes on the living room floor that looked similar to what the robbers wore.
Appellant was in the bedroom but came into the living room when deputies called
out to him. A deputy then walked through the one-bedroom apartment to check for
additional people.

      A deputy asked Gardner about the Trailblazer, and Gardner said it had been
stolen the day before although she did not report the theft. The deputies arrested
Gardner and appellant, and the deputies obtained a search warrant for the
apartment. The affidavit in support of the warrant contained information about
marijuana and clothing that the deputy had observed inside the apartment.

      During the search, deputies seized two semiautomatic pistols that appeared
identical to the ones used during the robbery. One was a .40 caliber and the other
was a 9mm. The guns were found in the bedroom closet. The deputies seized black
hoodies and pants similar to the clothes worn by the robbers, and they seized a pair
of size seven Nike Air Jordan sneakers with a neon pink design similar to the
sneakers worn by a robber. The deputies seized a box of ammunition—.40 caliber
with seven bullets missing. The deputies seized multiple cell phones.

      Deputies searched at least one of the cell phones pursuant to a warrant. The
phone’s data identified appellant as the owner. The data included pictures of
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appellant with a black and silver pistol. The data included a screenshot of a social
media post from She’s Happy Hair, dated the day before the robbery, showing a
large quantity of hair extensions. And the data showed that on the evening of the
robbery, the phone was used to search the Internet for “she’s happy hair robbery”
and “witness fired upon after tailing suspected hair thieves.”

      While appellant was in jail, he and Gardner spoke over the phone. The calls
were recorded and admitted at trial. During one of the calls, appellant said that he
put the guns in the closet. During another call, Gardner mentioned walking over to
the car to see if it was still there because appellant was concerned about it getting
towed. Gardner said she had the title and was going to sell it.

      A few months later, deputies found the Trailblazer within walking distance
of Gardner’s apartment, which was also within walking distance of where the
robbers shot at the witness. Deputies found a mask inside the Trailblazer, along
with one of appellant’s fingerprints on a seatbelt.

      The State’s firearms expert testified that she compared nine 9mm cartridge
casings and seven .40 caliber cartridge casings recovered from the shooting scene
to cartridge casings fired from the two pistols recovered in Gardner’s apartment.
She testified that the recovered cartridge casings were fired by the two pistols.

      At trial, the court denied appellant’s motion to suppress evidence found
during the warrant search of Gardner’s apartment. The jury found appellant guilty
and assessed punishment at forty years’ confinement.

                       II.   SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends that the evidence is insufficient to
support his conviction as a principal or party to the robbery. In particular, appellant
challenges his identity as one of the robbers, that the complainant was threatened

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or placed in fear of imminent bodily injury or death, and that the complainant was
the owner of the stolen property.

A.    Standard of Review and General Principles

      In a sufficiency review, we must consider all of the evidence in the light
most favorable to the jury’s verdict to determine whether, based on that evidence
and reasonable inferences therefrom, any rational juror could have found the
essential elements of the crime beyond a reasonable doubt. Balderas v. State, 517
S.W.3d 756, 765–66 (Tex. Crim. App. 2016). We defer to the jury’s responsibility
to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id. at 766. The jury is the sole judge
of the credibility and weight to be attached to witness testimony, and we must
defer to the jury’s resolution of conflicting inferences that are supported by the
record. See id. Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).

      We measure the sufficiency of the evidence by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge
includes the statutory elements of the offense as modified by the charging
instrument. Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012).

      The essential elements of an aggravated robbery, as modified by the
indictment in this case, are that (1) the defendant, (2) in the course of committing
theft, (3) with intent to obtain or maintain control of property, (4) knowingly or
intentionally, (5) threatened or placed another in fear of imminent bodily injury or
death, and (6) used or exhibited a deadly weapon. See Tex. Penal Code
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§§ 29.02(a)(2), 29.03(a)(2); see also Robinson v. State, 596 S.W.2d 130, 132 (Tex.
Crim. App. 1980).

B.    Identity

      Appellant contends the evidence is insufficient to prove his identity as one
of the principal actors who entered the She’s Happy Hair. “Unquestionably, the
State must prove beyond a reasonable doubt that the accused is the person who
committed the crime charged.” Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d). Identity may be proven by direct or
circumstantial evidence and through inferences. Id.; see also Earls v. State, 707
S.W.2d 82, 85 (Tex. Crim. App. 1986). 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 516, 526 (Tex. Crim. App. 2012). When, as here, the jury returns a general
verdict of guilt after being charged on both primary-actor and party-liability
theories, we will affirm if the evidence is sufficient to support a guilty verdict
under either theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App.
1992).

      The evidence establishing appellant’s guilt as one of the principals who
entered the She’s Happy Hair is circumstantial, yet significant. Appellant was
linked to the firearms used during the robbery because he admitted to placing the
two pistols in the location where they were later discovered, and his cell phone
included a picture of him with a similar firearm. See Palomo v. State, 352 S.W.3d
87, 90–91 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (evidence of guilt
included access to the murder weapon). Furthermore, his cell phone included a
screenshot of a She’s Happy Hair social media post, dated the day before the
robbery, and the phone included records of searches regarding the robbery on the
day it occurred.

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       Appellant fit the general physical description of one of the robbers in the
surveillance video, and clothing similar to the robbers’ was found in the apartment
he shared with Gardner. The pair of size seven Nike Air Jordan sneakers with
distinctive pink coloring, which deputies found in the apartment, appeared similar
to the sneakers worn by one of the robbers.

       Considering the combined and cumulative force of all of the evidence in the
light most favorable to the jury’s verdict, a rational jury could find that appellant
was one of the principals who entered the She’s Happy Hair store. There is
sufficient evidence of appellant’s identity as a principal actor.

C.     Threatened or Placed in Fear

       Next, appellant contends that there is insufficient evidence to prove that the
complainant was threatened or placed in fear of imminent bodily injury or death.
The complainant did not testify at trial, and there is no evidence that the
complainant ever directly interacted with the robbers because the complainant
remained locked in the store’s back room.

       A conviction for aggravated robbery may be upheld even if there is “no
evidence in the record showing that the appellant was aware of” the complainant.
Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011). In Howard, for
example, the defendant robbed a convenience store, and the complainant was in the
back office during the robbery. Id. at 137–38. The Court of Criminal Appeals
upheld the conviction based on the testimony of the complainant that she was
frightened and surveillance video showing the defendant aggressively brandished a
rifle. See id. at 140.

       Here, the manager testified that the complainant was panicking and very
scared during the robbery. The manager testified that one of the robbers threatened


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to shoot his pistol, and the surveillance video shows the robber wielding and
pointing the pistol. From this evidence, a rational jury could find that appellant
threatened the complainant or placed him in fear of imminent bodily injury or
death. See id. There is sufficient evidence of this element of aggravated robbery.

D.    Owner of Property

      Finally, appellant contends that there is insufficient evidence to prove that
the complainant was an owner of the property identified in the indictment.
Appellant relies solely on the theft case of Byrd v. State, 336 S.W.3d 242 (Tex.
Crim. App. 2011).

      Under the Penal Code, a person is an “owner” if the person has a greater
right to possession of the property than the actor. Tex. Penal Code
§ 1.07(a)(35)(A). In Byrd, the State alleged a theft from “Mike Morales.” 336
S.W.3d at 254. The State proved only that property was taken from a Wal-Mart
store, however, and “no one at trial ever heard of Mike Morales or that he had
anything to do with Wal-Mart.” Id. Accordingly, the State failed to prove that the
defendant stole any property from the named complainant. Id. at 257. The Court of
Criminal Appeals reversed the conviction and entered a judgment of acquittal. Id.
at 258.

      Here, however, the store’s manager testified that the complainant was an
employee of She’s Happy Hair and was working in the store at the time of the
robbery. Thus, there is sufficient evidence that the complainant was an “owner” of
the stolen property because he had a greater right to possession of the property than
appellant. See Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. [Panel
Op.] 1982) (sufficient evidence of aggravated robbery when the named
complainant was an employee of the robbed store because the named complainant
had a greater right to possession of the stolen property “by reason of his
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employment”); House v. State, 105 S.W.3d 182, 184 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (same).

      Appellant’s first issue is overruled.

                            III.   MOTION TO SUPPRESS

      In his second issue, appellant contends that the trial court erred by overruling
his motion to suppress evidence seized during the warrant search of Garland’s
apartment because information in the probable cause affidavit was illegally
obtained. Specifically, appellant contends that “the intrusion by law enforcement
into the apartment Appellant was occupying was illegal and the information
regarding what was seen in the apartment was fruit of the illegality.” Appellant
complains about the affidavit’s reference to drugs and clothing observed by a
deputy in plain view.

      We must uphold the trial court’s denial of a motion to suppress if it is
reasonably supported by the record and correct under any applicable theory of law.
Hereford v. State, 339 S.W.3d 111, 117–18 (Tex. Crim. App. 2011). We view the
record in the light most favorable to the trial court’s ruling and reverse only if that
ruling is outside the zone of reasonable disagreement. Id. at 118. We infer factual
findings implicit to the trial court’s conclusion if the implied findings are
supported by the record. Id. We analyze the trial court’s application of the law de
novo. State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015).

      Appellant’s argument relies on the principle that a search warrant may not
be procured lawfully by the use of illegally obtained information. See id. at 877. In
this case, the deputy who applied for the search warrant testified that at the time of
the initial entry into Garland’s apartment, there was already an open warrant for
Garland’s arrest. Accordingly, the intrusion into Garland’s apartment was not


                                          9
illegal. See Payton v. New York, 445 U.S. 573, 603 (1980) (“[F]or Fourth
Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within.”); see also Morgan v. State,
963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (same, and
noting that if a suspect is a co-resident of a third party, then “Payton allows both
arrest of the subject of the arrest warrant and use of evidence found against the
third party”).

      While lawfully inside Garland’s apartment, a deputy observed what
appeared to be marijuana and evidence of the robbery in plain view. See generally
State v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013) (noting that to seize an
object in plain view, officers “must lawfully be where the object can be ‘plainly
viewed’” (quoting Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009))).
A search warrant affidavit lawfully may include references to items observed in
plain view. See Christopher v. State, 489 S.W.2d 575, 577–78 (Tex. Crim. App.
1973) (affidavit showed probable cause in part based on officer’s observation of
stolen items in plain view); Duhig v. State, 171 S.W.3d 631, 635–37, 639 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d) (valid search warrant based on
information contained in the affidavit that officers observed in plain view); cf.
Jones v. State, 568 S.W.2d 847, 857 (Tex. Crim. App. 1978) (upholding admission
of evidence seized during the execution of an arrest warrant because the arrest
warrant authorized entry into the appellant’s apartment, the officers’ intrusions into
the bathroom and bedroom were justified, and the items seized were in plain view
in those areas); Collins v. State, 462 S.W.3d 617, 622–23 (Tex. App.—Fort Worth
2015, no pet.) (officers were authorized to seize evidence in plain view in the
defendant’s bedroom while they were executing arrest warrants).


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      The affidavit in support of the search warrant did not contain any illegally
obtained information, and appellant has not made any other arguments for why the
affidavit fails to establish probable cause. Accordingly, the trial court did not err by
denying the motion to suppress.

      Appellant’s second issue is overruled.

                                 IV.    CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                        /s/    Ken Wise
                                               Justice


Panel consists of Justices Boyce, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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