                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-19-00008-CR


                           JORDAN BOOKER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
         Trial Court No. 2015-408,013, Honorable John J. McClendon, III, Presiding

                                      July 20, 2019

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and PIRTLE and PARKER, JJ.

      Appellant, Jordan Booker, appeals his conviction for aggravated robbery. Through

two issues, he questions the sufficiency of the evidence establishing that he 1) used or

exhibited a deadly weapon during the robbery and 2) committed the extraneous offenses

used to enhance punishment. We affirm.

      Issue One – Deadly Weapon Finding

      The pertinent standard of review is discussed in Fraser v. State, 523 S.W.3d 320

(Tex. App.—Amarillo 2017, pet. ref’d). We apply it here. Next, a deadly weapon is a
firearm or anything manifestly designed, made, or adapted for the purpose of inflicting

death or serious bodily injury or anything that in the manner of its use can cause death or

serious bodily injury. Phillips v. State, No. 07-17-00102-CR, 2018 Tex. App. LEXIS 5746,

at *9 (Tex. App.—Amarillo July 25, 2018, no pet.) (mem. op., not designated for

publication). As can be seen from that definition, a firearm is a deadly weapon, per se.

Id. Furthermore, it is unnecessary for the State to produce the firearm to prove that one

was used or exhibited. Id.

       Here, appellant was charged with committing aggravated robbery.            The only

element of that crime in play on appeal is that requiring the defendant’s use or exhibition

of a deadly weapon during the robbery. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West

2019) (stating that one commits aggravated robbery by committing robbery and, among

other things, using or exhibiting a deadly weapon). Appellant believes that the State failed

to prove he used or exhibited one during his robbery of a local Denny’s despite the

evidence from several eyewitnesses illustrating he pointed a handgun at various

restaurant employees. Though a handgun was later found in a vehicle purportedly

operated by him, nothing linked the gun to him, according to appellant. So, in his

estimation, there was a failure of proof regarding the element in question.

       Even if we assumed arguendo that the handgun found in the vehicle he drove was

not the one he held while confronting the employees at Denny’s, appellant does not

dispute on appeal that he pointed a handgun at one or more restaurant employees during

the incident. Nor does he dispute that one or more employees of the establishment so

testified. As previously mentioned, the actual handgun need not be produced to secure

the finding at issue. See Phillips, 2018 Tex. App. LEXIS 5746, at *9. If the handgun need



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not be produced, it matters not that the one found in the vehicle was or was not the firearm

he brandished. It was enough that the restaurant employees testified he brandished one.

We overrule appellant’s first issue.

       Issue Two – Extraneous Offenses

       Next, the State proffered evidence of extraneous offenses during the punishment

phase of the trial. That evidence consisted of six aggravated robberies purportedly

committed by appellant. Two occurred the night of the Denny’s robbery. Their locations

were a local Valero station and a movie theater. The other four occurred at business

establishments, as well, but many months earlier. The establishments were Savers,

Kaleidoscoops, Taco Bell, and Long John Silver’s. Appellant contends that the State

failed to present legally sufficient evidence proving, beyond reasonable doubt, that he

committed the latter four crimes. He does not dispute on appeal that he committed the

Valero and theater aggravated robberies, however.

       Statute provides that the State may offer during the punishment phase of the trial

“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 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)

(West Supp. 2018). Moreover, the trial court must instruct the jury that, before considering

such extraneous offense evidence in determining punishment, the jurors first must

determine whether the State proved, beyond reasonable doubt, that the accused

committed the crimes. Martinez v. State, No. 01-09-00724-CR, 2010 Tex. App. LEXIS

1544, at *8 (Tex. App.—Houston [1st Dist.] Mar. 4, 2010, pet. ref’d) (mem. op., not



                                             3
designated for publication). The problem we have here concerns the tenor of appellant’s

argument. We are left to wonder if he avers that 1) the trial court erred in admitting

evidence of the four earliest aggravated robberies because the decision failed to comport

with article 37.07, § 3(a)(1), or 2) irrespective of the legitimacy of the trial court’s decision,

the jury could not consider the four earliest extraneous offenses because the State failed

to present legally sufficient evidence establishing he committed them. If the latter, then

our response would be the following.

       Unlike reviewing the legal sufficiency of evidence proving an actual conviction,

intermediate appellate courts do not undertake an independent legal sufficiency review

with regard to the quantum of evidence underlying proof of an extraneous offense

admitted under article 37.07, § 3(a)(1). Wilson v. State, No. 05-16-01066-CR, 2017 Tex.

App. LEXIS 12075, at *10–11 (Tex. App.—Dallas Dec. 28, 2017, pet. ref’d) (mem. op.,

not designated for publication); Hopes v. State, No. 14-14-00403-CR, 2015 Tex. App.

LEXIS 11468, at *14–15 (Tex. App.—Houston [14th Dist.] Nov. 5, 2015, pet. ref’d) (mem.

op., not designated for publication); Malpica v. State, 108 S.W.3d 374, 378–79 (Tex.

App.—Tyler 2003, pet. ref’d). Rather, “the only review possible of the sufficiency of the

proof of an extraneous offense introduced at the punishment stage is a review under an

abuse of discretion standard of the trial judge’s threshold ruling on admissibility.” Malpica,

108 S.W.3d at 379; accord Garcia v. State, No. 05-05-00926-CR, 2006 Tex. App. LEXIS

5463, at *7–9 (Tex. App.—Dallas June 27, 2006, no pet.) (mem. op., not designated for

publication) (quoting Malpica, 108 S.W.3d at 379, and stating the same). Appellant here

neither says anything specifically about that standard nor attempts to expressly apply it

in his briefing.



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       On the other hand, if his generalized attack could be read as one intending to

complain of the trial court’s decision to admit evidence of the four earliest robberies, we

say as follows.    With regard to each crime, one or more witnesses present at the

respective event identified appellant as the individual who pointed the gun while

committing the respective robbery.        Generally, the testimony of only one witness

identifying the accused as the culprit is sufficient to support guilt. See Harmon v. State,

167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (rejecting the

argument that the evidence was insufficient because only one witness identified him and

stating that “Newby’s testimony standing alone is sufficient to support appellant’s

conviction”); see also Vernon v. State, 571 S.W.3d 814, 820 (Tex. App.—Houston [1st

Dist.] 2018, pet. ref’d) (stating that the testimony of a single eyewitness is sufficient to

support a conviction). If one witness identifying appellant as the assailant is enough

evidence to support an assailant’s conviction, beyond reasonable doubt, it also is enough

to satisfy the evidentiary burden imposed under article 37.07, § 3(a)(1). Consequently,

we cannot say that the trial court abused its discretion in admitting evidence of the four

earliest robberies in contravention of that statute.

       Finally, we also note the presence of evidence that appellant committed two other

armed robberies immediately prior to arriving at Denny’s. He does not question, on

appeal, whether the evidence illustrated he was the assailant in those crimes. To that we

add the fact that aggravated robbery is a felony of the first degree. TEX. PENAL CODE ANN.

§ 29.03(b). Such a felony carries a potential sentence anywhere from no less than five

to no greater than ninety-nine years’ imprisonment. Id. § 12.32(a) (West 2019). Here,

appellant received a sentence of forty years’ imprisonment.         It is rather difficult to



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conclude, under these circumstances, that admission of the extraneous offense evidence

encompassing the earliest four robberies somehow harmed appellant when he does not

contest the evidence illustrating he committed two equally heinous aggravated robberies

before arriving at Denny’s to commit a third. Though not exactly on point, application of

the rule about admitting without objection the same or similar evidence to that against

which an objection is lodged negating harm or curing error seems appropriate under the

circumstances at bar. See Castleman v. State, No. 07-18-00296-CR, 2019 Tex. App.

LEXIS 2124, at *2 (Tex. App.—Amarillo Mar. 18, 2019, no pet.) (per curiam) (mem. op.,

not designated for publication) (stating that the admission of the same or similar evidence

elsewhere in the trial without objection cures any purported error).

       We overrule each of appellant’s issues and affirm his conviction.



                                                               Brian Quinn
                                                               Chief Justice


       Do not publish.




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