                                            NO. 07-02-0527-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                   PANEL D

                                      SEPTEMBER 2, 2004
                                ______________________________

                                           JEROME NELSON,

                                                                      Appellant

                                                        v.

                                        THE STATE OF TEXAS,

                                                      Appellee
                              _________________________________

               FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 2001-438,441; HON. JIM BOB DARNELL, PRESIDING
                           _______________________________

                                           Opinion
                               _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

      Appellant Jerome Nelson contests his conviction for aggravated robbery in seven

issues.1 We affirm the judgment.

                                                Background

      On October 25, 2000, Robert Roberson was working as manager of a Town and

Country convenience store in Lubbock. While talking to one or more customers, he



      1
          The seventh issue is prese nted for the first time in appe llant’s supplem ental brief.
observed two black men walk by outside the store. Soon thereafter, the same two men

entered the store and walked straight to the counter. When Roberson asked how he could

help them, appellant placed a handgun on the counter and pointed it at Roberson. The

other robber then walked behind the counter in search of and taking whatever money he

could find. Both men left the store, and Roberson called the police.

      Based upon information obtained from an informant, an arrest warrant was issued

for both appellant and his compatriot. The warrant was executed, and after his arrest,

appellant gave a written statement inculpating himself.

                       Issue One - Probable Cause for Affidavit

      In his first issue, appellant argues that his arrest violated the federal and state

constitutions. This is allegedly so because the affidavit accompanying the application for

the arrest warrant failed to show probable cause, and it failed to show probable cause

since it lacked information establishing the informant’s reliability. We overrule the issue

for several reasons.

       First, in support of his contention, appellant relies extensively on evidence

developed at a hearing upon his motion to suppress. Yet, that evidence is irrelevant. This

is so because, when determining the existence of probable cause, our review is limited to

the four corners of the affidavit supporting the request for the warrant and the reasonable

inferences that can be drawn from it. Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim.

App. 1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1115, 99 L. Ed.2d 276 (1988); State v.

Ozuna, 88 S.W.3d 307, 310 (Tex. App.–San Antonio 2002, pet. ref’d). So, we cannot

consider the evidence tendered at the hearing.




                                            2
       Next, to be adequate, the affidavit must provide a magistrate with sufficient

information to conclude that probable cause exists to believe the accused committed an

offense. McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996), cert. denied,

519 U.S. 1119, 117 S.Ct. 966, 136 L. Ed.2d 851 (1997); Brooks v. State, 76 S.W.3d 426,

431 (Tex. App.–Houston [14th Dist.] 2002, no pet.). While probable cause requires more

than mere suspicion, the affiant need not present evidence establishing the suspect’s guilt

beyond reasonable doubt or by a preponderance of the evidence. Moss v. State, 75

S.W.3d 132, 138 (Tex. App.–San Antonio 2002, pet. ref’d). He need only illustrate that

there is a reasonable probability that the accused committed an offense. And, whether that

standard has been met depends upon the totality of the circumstances. Id. at 138; Boley

v. State, 16 S.W.3d 95, 97 (Tex. App.–Houston [1st Dist.] 2000, no pet.). Furthermore, two

of the circumstances to be considered when the affiant grounds his statements on

representations by an informant are the reliability or veracity of the informant and the basis

of his knowledge. State v. Ozuna, 88 S.W.3d at 310; Martin v. State, 67 S.W.3d 340, 344

(Tex. App.–Texarkana 2001, pet. ref’d). Though being two considerations, they are not

independent requirements of a valid affidavit, however. State v. Ozuna, 88 S.W.3d at 310.

In other words, both need not be proved for the affidavit to be valid. Additionally, a

deficiency in one may be offset by a strong showing of the other. Martin v. State, 67

S.W.3d at 344. With this said, we turn to the situation before us.

       As described in the affidavit and its attachments presented to the magistrate, the

informant identified, by name, each robber who appeared on the tape of the Town and

Country robbery. So too did he not only describe who actually owned the jacket being

worn by one of the suspects but also told the affiant that he (the informant) was “present


                                              3
when [the] suspects bragged about doing this robbery.” Authority assigns greater weight

to an informant’s utterances when he personally observed the act which he discloses. See

State v. Ozuna, 88 S.W.3d at 310 n.1, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct.

2317, 76 L.Ed.2d 527 (1983) (stating that “. . . even if some doubt exists as to an

informant’s motives, his explicit and detailed description of alleged wrongdoing, along with

a statement that the event was observed first-hand, entitles the tip to greater weight than

might otherwise be the case”). And, though the informant at bar may not have personally

witnessed the actual robbery by appellant and his partner, he nonetheless personally heard

them admit to it through their braggadocio. So his reiteration of the admission is entitled

to greater weight.

        Moreover, the comment not only illustrates the basis of his knowledge about who

committed the offense but also provides additional grounds illustrating why he was able to

identify each robber seen in the video; simply put, he knew who they were because, among

other things, he was present when they bragged about committing the offense. To this,

we add his identification of the true owner of the coat worn by one malfeasant, which

evidence in turn supports the inference that he had some other personal acquaintance with

the robbers. So, in short, this rather strong evidence illustrating the basis of the informant’s

knowledge offsets any lack of evidence in the affidavit regarding his reliability. 2

        Finally, when someone brags about committing a particular criminal act and that

admission is relayed to an independent magistrate via affidavit, it is within the realm of


        2
          This is not to suggest that the affidavit was devoid of all evidence tending to paint the informant as
reliable. Indeed, one can reasonably infer from the affidavit that he was in the presence of the police when
the identification was made. A face-to-face meeting such as this is an indicia suggestive of credibility since
the officer m ay then rea dily identify the inform ant shou ld his utteran ces prove de ceitful. United States v.
Jenkins, 313 F.3d 549, 554-55 (10 th Cir. 2002) cert. denied, 538 U.S. 1006, 123 S.Ct. 1917, 155 L.Ed.2d 838
(2003).

                                                       4
common sense to conclude that there exists a reasonable chance that the braggart did that

about which he brags. So, we cannot say the affidavit at bar lacked adequate basis to

support an inference that there existed a reasonable probability that appellant committed

the robbery. In other words, we cannot accept the proposition that the affidavit failed to

demonstrate sufficient probable cause to arrest appellant.

                    Issue Two - Ineffective Assistance of Counsel

       In his second issue, appellant attacks the trial court’s failure to grant his motion for

new trial due to the ineffectiveness of his trial counsel. That is, because his attorney

allegedly failed to object to an in-court identification of appellant by Roberson, counsel was

deficient.   Furthermore, the identification was allegedly objectionable because the

prosecutor showed Roberson photos of the appellant and his accomplice shortly before

trial. This purportedly constituted an unreasonably suggestive photo array. We overrule

the point.

       Among other things, the record illustrates that neither defense counsel nor the trial

court were aware of the suggestive photo array having been shown to Roberson until after

he identified appellant at trial. Having been unaware of the circumstance, counsel can

hardly be faulted for withholding objection to conduct of which he knew not.

       Moreover, even if trial counsel uttered no objection, the trial court nonetheless

conducted a hearing to determine the legitimacy and effect of the photo spread. It did so

after trial counsel discovered, through cross-examining Roberson, that the latter had been

shown the pictures. And, though the trial court held that the spread was impermissibly

suggestive, it nonetheless concluded that the procedure did not taint Roberson’s

identification of appellant. So, appellant actually was afforded that which his counsel


                                              5
supposedly failed to obtain for him, i.e. an opportunity to contest the validity of both the

State’s conduct and Roberson’s identification. Thus, we find no prejudice, especially in

view of appellant’s own admission of guilt via a statement given to the police and admitted

into evidence.

                             Issue Three - Brady Violation

       The prosecutor’s conduct alluded to in issue number two also underlies the

complaint raised in issue three. There, appellant alleges that the State violated the rule

of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), since it

failed to disclose, prior to trial, that photographs of appellant and his accomplice had been

shown to Roberson immediately before trial. We overrule the issue for several reasons.

       First, and assuming arguendo that the prosecutor’s conduct evinced a Brady

violation, the appellant was obligated to request a continuance. His failure to do so

resulted in a waiver of the complaint.      Taylor v. State, 93 S.W.3d 487, 502 (Tex.

App.–Texarkana 2002, no pet.); State v. DeLeon, 971 S.W.2d 701, 706-07 (Tex.

App.–Amarillo 1998, pet. ref’d); Cohen v. State, 966 S.W.2d 756, 763 (Tex.

App.–Beaumont 1998, pet. ref’d).

       Second, before reversal of the conviction is warranted under Brady, the defendant

must establish that in light of all the evidence, it is reasonably probable that the outcome

of the trial would have been different if the evidence had been disclosed. Hampton v.

State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Here, appellant gave the police a

statement wherein he admitted to committing the offense, and the statement was received

into evidence. Appellant having admitted his culpability, it was and is highly unlikely that

disclosure of the State’s conduct prior to trial would have created a reasonable probability


                                             6
that the outcome would have differed. See Medina v. State, 743 S.W.2d 950, 958 (Tex.

App.–Fort Worth 1988, pet. ref’d) (finding the information touching upon the issue of

identity immaterial because the appellant admitted to shooting the victims). Indeed, that

appellant inculpated himself also removed from question the topic of identity. The latter,

therefore, was immaterial for Brady purposes. Id.

                  Issues Four, Five and Six - Deadly Weapon Issues

       Via his next three issues, appellant argues, in effect, that the evidence was both

legally and factually insufficient to support the jury’s finding that he used or exhibited a

deadly weapon during the robbery, i.e. that he committed aggravated robbery. We

overrule the issues.

       The State charged appellant with having used and exhibited a deadly weapon, the

latter being a firearm. Before us, appellant argues that the State failed to prove this

allegation since it presented no evidence that the item utilized was capable of causing

death or serious bodily injury. Yet, the record contains some evidence upon which a jury

could rationally conclude beyond reasonable doubt that the appellant actually exhibited a

handgun or firearm; indeed, Roberson described the weapon as a “semiautomatic pistol.”

And, since a firearm or handgun is a deadly weapon per se, Lafleur v. State, 106 S.W.3d

91, 99 (Tex. Crim. App. 2003); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.–Houston

[14th Dist.] 2000, pet. ref’d), the State was not required to tender evidence illustrating that

the weapon was capable of causing death or serious bodily injury. Thomas v. State, 821

S.W.2d 616, 619-20 (Tex. Crim. App. 1991).




                                              7
       As for the statement by appellant that the weapon was not a firearm at all but rather

a BB gun, we do not find it of such ilk to render the verdict factually insupportable.3 Again,

Roberson testified that the weapon was a semiautomatic pistol and that he believed it to

be a real gun that could kill him. So too did an officer testify that the weapon “was a

handgun,” though he also conceded that a BB gun could look like a handgun and that he

did not know if the weapon was actually a firearm or a BB gun. Thus, the jury had before

it a disputed issue of fact. And, in resolving the matter, it could have opted to disbelieve

appellant’s testimony and instead accept that illustrating the weapon to be an actual

firearm. See Edwards v. State, 10 S.W.3d 699, 701-02 (Tex. App.–Houston [14th Dist.]

1999, pet. dism’d) (holding that testimony from the victims that the defendant used a gun

that resembled a Colt .45 handgun rather than a BB gun allowed the jury to make a

reasonable deduction that the gun was a firearm).

       In short, the finding that appellant used or exhibited a deadly weapon in the robbery

enjoys the support of both legally and factually sufficient evidence. And, because it does,

the finding that he committed aggravated robbery (as opposed to mere robbery) also is

supported by both legally and factually sufficient evidence.

                   Issue Seven - False or Reckless Statements in Affidavit

       Finally, in his seventh issue (presented via a supplemental brief), appellant again

attacks the legitimacy of the arrest warrant. This time, however, he posits that it should

have been invalidated since it was obtained through the intentional or reckless use of false

statements. The latter were purportedly uttered by Detective Sutton, the detective to whom

the informant identified appellant and his accomplice. Furthermore, the statements were


       3
           The weapon does not appear as an exhibit in the appellate record.

                                                     8
supposedly false since the informant later denied identifying the individuals and the video

tape was not of such quality and kind to permit one to see and, thereby, identify the people

captured on it. We overrule the issue.

        The statements referred to appear in a report attached to the affidavit discussed in

issue one above. They consist of the following:

        On 11-28-01 this investigator received information through S.I. (01-03) that
        provided information to the identity of the suspects in this case.

        S. I. . . . advised that the identity of the suspects are Jason Lawson and
        Jerome Nelson. S.I. . . . viewed the video tape that was obtained in this case
        and positively identified the suspects in this case.

        S.I. . . . also informed this investigator that Jason Lawson was the person
        who went behind the counter with the clerk. He stated that the white jacket
        worn in the video has the words ‘FUBU’ on the back. The jacket belongs to
        Alvin Lawson but Jason Lawson is the one wearing it. The subject was also
        wearing a red cap. The stocky suspect at the counter holding the gun is
        identified as Jerome Nelson. S.I. . . . advised this subject is a parolee.

        S.I. . . . informed that they were present when suspects bragged about doing
        this robbery. S.I. . . . advised suspects are robbing various businesses
        throughout Lubbock. S.I. . . . said Jerome Nelson is wearing white and blue
        FUBU shoes in the video. . . .

As can be seen from them, Sutton simply indicated that the S.I. saw the video. Nowhere

in it did he state that the S.I. identified the suspects solely from the images appearing on

it or that one could identify the suspects merely from their appearance in the video.

Indeed, the officer actually testified, at a later hearing, that the informant had provided him

with the information about how the robbery occurred and who went behind the counter

before being shown the tape.4 So too did he testify that despite the quality of the tape, it



        4
           Appellant attempted to establish at trial that the video had been released to the press and the
informant could have viewed the video prior to talking to police. However, the informant denied to police that
he h ad p reviou sly see n the robb ery.

                                                      9
would have provided sufficient information to identify the suspects if the viewer already

knew them. This coupled with his other testimony that the informant stated he had been

told by the suspects that they had committed the robberies, that the informant then

watched the video and recognized the clothing, build, and features of the suspects, and

that the informant stated: “[t]hat is them. I [would] know them anywhere” could reasonably

lead one to conclude that the informant was not identifying the suspects due to what he

saw in the video. Rather, it could be reasonably deduced that the informant could identify

them due to his prior knowledge about the offense, who committed it, and what the culprits

were wearing at the time.

       Sutton did concede, at the hearing, that he did not believe the shoes appellant was

wearing were visible in the tape, though the informant said appellant was wearing them.

Yet, there is no showing that the officer knew of or should have noticed the discrepancy

between the informant’s statement and the contents of the tape when writing his report.

See Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim. App. 1987), cert. denied, 484 U.S.

975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987) (holding that a misstatement resulting from

negligence or inadvertence does not render a warrant invalid); Brown v. State, 831 S.W.2d

847, 848 (Tex. App.–Dallas 1992), aff’d, 870 S.W.2d 53 (Tex. Crim. App. 1994) (holding

the same).

       Next, and to the extent that the informant later denied making the identification, the

circumstance raised an issue of credibility. That is, the trial court became obligated to

decide who to believe. And, since this was a matter of a witness’ credibility, we must defer

to the selection made by the trial court. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.




                                             10
Crim. App. 1997) (requiring us to defer to the trial court’s credibility choices). And, the trial

court obviously selected Officer Sutton.

       In sum, appellant failed to establish by a preponderance of the evidence that

Sutton’s statement with respect to the informant’s identification was intentionally false or

made with reckless disregard for the truth. Thus, we again hold that the trial court did not

abuse its discretion in overruling appellant’s motion to suppress.

       Accordingly, the judgment of the trial court is affirmed.



                                                    Brian Quinn
                                                      Justice

Do not publish.




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