Affirmed and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00740-CR

BICTOR GUZMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1759994

MEMORANDUM OPINION

Appellant Bictor Guzman appeals his conviction for aggravated robbery 

with a deadly weapon. In four issues, appellant argues that the trial court 

erroneously admitted extraneous offense evidence in both the guilt-innocence 

phase and the punishment phase, erroneously admitted appellant’s recorded 

confession, and that the evidence was legally insufficient to support his conviction. 

We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2020, complainant Benjamin Pelico was robbed in the 

parking lot of his apartment as he got out of his truck. Two individuals approached 

him from the back and an object that he believed to be a gun was put to the back of 

his head. His wallet, keys and a necklace were taken from complainant and his 

assailants told him to take them to his apartment. Because his family was in his 

apartment, he misdirected the two assailants. He was then taken back to his truck 

where he saw a gun. Following additional misdirections by complainant, the two 

assailants left.

Appellant was arrested on December 29, 2020. He was charged with 

aggravated robbery with a deadly weapon in connection with the events that 

occurred on December 21, 2020. He pleaded “not guilty” to the offense and his 

case was tried before a jury.

Shortly after his arrest, appellant was interviewed by Houston police officers 

while he was in custody. He was informed of his rights and asked if he understood 

those rights before the interview began. During the course of the interview, 

appellant admitted his involvement in the December 21 robbery, as well as four 

other aggravated robberies committed on December 11, December 19, and 

December 23.

At trial, defense counsel asked complainant a series of questions on crossexamination concerning the use of a firearm in the December 21 robbery:

Q. Okay. Now, Mr. Pelico, you had talked earlier that you’re not 

familiar with guns; is that right?

A. No, I’m not.

Q. Okay. And you mentioned when you were first approached, that 

you did not see what anybody was pressing against you; is that 

correct?
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A. Yes.

. . .

Q. Okay. Now, you agree with me that a gun was never fired or shot, 

correct?

A. No, no weapon was shot.

Q. Not even in the air or in the ground to show you it was an actual 

gun, correct?

A. No. Yes.

Q. Okay. Now -- now would you agree with me that you’re not really 

sure whether or not it was an actual gun?

A. Once we were in the truck, yes. I saw that it was one when the 

person was pointing it at me in the truck.

Q. Okay. Now, I thought you said that you couldn’t really see what it 

was; you just saw that it was black. Is that right?

A. Yes, I saw it was black.

Q. Okay. Do you know the difference between a revolver and a 

semiautomatic weapon?

A. No, I’m -- I don’t relate myself with that.

Appellant’s counsel also presented complainant with State’s Exhibits No. 7, No. 8, 

and No. 9, which were still photographs taken from surveillance footage of the 

robbery.

[Concerning State’s Exhibit No. 7]

Q. Do you agree with me here that from what we see in the picture, 

that there’s -- nobody is pointing a gun at you?

A. No, not right now. [W]hat you can see in the picture, no.

Q. Okay. And would you agree with me, sir, that there’s no gun that’s 

visible in anybody’s hands or anything like that? Correct?

A. No. Right now, visible, no, it can’t be seen.

Q. And to be fair, the gentleman right behind you, his hands are in his 

pockets, correct?
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A. [Y]es, that’s right.

Q. Okay. And even with his hands in his pockets, it does not look like 

he’s even pointing a finger at you or anything from his sweater. 

Would you agree with that?

A. Uh-huh.

[Concerning State’s Exhibit No. 8]

Q. The two people you see in the video, would you agree with me 

there is no gun that’s visible where they’re standing?

A. No.

[Concerning State’s Exhibit No. 9]

Q. Okay. Are you anywhere in State’s Exhibit No. 9?

A. No.

Q. And you agree with me you don’t see a gun or anything here in 

State’s Exhibit 9, correct?

A. It can’t be seen.

. . .

Q. Okay. Now, Mr. Pelico, is this the person that you said -- the one 

here on State’s Exhibit No. 9 -- that was with you the entire time, 

holding a gun to you?

A. In the truck, he was.

. . .

Q. [] When someone else went to check the apartment, the guy with 

the gun, is it true he stayed with you the entire time, with a gun? Is 

that right?

[State objects]

A. He stayed there pointing at me until the others came back.

Appellant’s counsel then presented to complainant State’s Exhibit No. 5, a 

surveillance video from the courtyard of complainant’s apartment complex.

Q. Now, would you agree with me, sir, that here, nobody is grabbing 

you or holding you or touching you with anything as you’re walking? 

Correct?
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A. Yes.

Before introducing its extraneous offense evidence, the State requested a 

ruling on whether defense counsel had opened the door to the introduction of 

extraneous evidence by implying that a gun had not been used during the 

December 21 robbery. The trial court held that by implying that a gun was not used 

or that the complainant was mistaken about the assailants having a firearm, 

appellant’s counsel had opened the door to the admission of extraneous evidence 

because it showed that appellant possessed a firearm and that appellant had used a 

firearm during the commission of other substantially similar crimes. Specifically, 

the court stated that defense counsel’s questions “implied that [complainant] was 

not using a firearm on the day in question . . . [a]nd that the [complainant] is 

mistaken about him having a firearm, which is exactly what 404 addresses. It’s 

probably similar MO, as well.” However, the court specified that while the door 

had been opened to evidence of firearm use, the door had not been opened to the 

admission of extraneous evidence to prove identity. On that basis, the court also 

granted appellant a running objection to “any and all extraneous offenses that come 

in.”

At the punishment phase of trial, defense counsel reiterated his running 

objection to extraneous evidence. The State presented extraneous evidence of two 

additional aggravated robberies, but no evidence identified appellant as the 

assailant in either case. Defense counsel did not object to the admission of either 

witness’s testimony beyond his running objection.

The jury found appellant guilty of aggravated robbery with a deadly weapon 

and assessed a sentence of twenty years’ confinement. The trial court entered the 

judgment and sentence in accordance with the jury’s decision, and appellant timely 

filed this appeal.
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II.ISSUES AND ANALYSIS

Appellant complains that (1) the trial court abused its discretion by admitting 

extraneous evidence of other aggravated robberies allegedly committed by 

appellant during the guilt-innocence phase of trial, (2) the trial court abused its 

discretion by admitting extraneous offense evidence during the punishment phase 

of appellant’s trial, (3) the trial court abused its discretion by admitting evidence of 

appellant’s confession to police, and (4) the evidence at trial was legally 

insufficient to support the conviction. Though he has briefed it last, we first 

address appellant’s legal sufficiency complaint because, if meritorious, it would 

afford the greatest relief.

A. Is the evidence sufficient to support appellant’s conviction?

In his fourth issue, appellant complains that the record contains insufficient 

evidence to support his aggravated robbery conviction. In evaluating a challenge to 

the sufficiency of the evidence supporting a criminal conviction, we view the 

evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 

103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a 

court, believe the State's evidence or believe that appellant's evidence outweighs 

the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). 

The verdict may not be overturned unless it is irrational or unsupported by proof 

beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. 

App. 1991). The jury “is the sole judge of the credibility of the witnesses and of 

the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. 

App. 1999). The jury may choose to believe or disbelieve any portion of the 

witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 

1986). When faced with conflicting evidence, we presume the jury resolved 

conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. 
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Crim. App. 1993). Therefore, if any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt, we must affirm.

McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

We measure sufficiency to support a conviction by comparing the evidence 

presented at trial to “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 reflects the governing law, the 

indictment, the State's burden of proof and theories of liability, and an adequate 

description of the offense for the particular case. Id.

“A person commits [robbery] if, in the course of committing theft ... and 

with the intent to obtain or maintain control of the property, he ... threatens or 

places another in fear of imminent bodily injury or death.” Tex. Penal Code § 

29.02(a) & (a)(2). A robbery is aggravated if a person “commits robbery as defined 

in Section 29.02 and he ... uses or exhibits a deadly weapon.” Tex. Penal Code § 

29.03(a) & (a)(2). “A person commits [theft] if he unlawfully appropriates property 

with intent to deprive the owner of property.” Tex. Penal Code § 31.03(a).

Appellant claims that because his confession was erroneously admitted and 

no other evidence could prove his identity as one of the assailants, the evidence 

would have been insufficient absent the trial court’s error. Appellant is incorrect. 

In assessing the sufficiency of the evidence, we consider all of the evidence that 

the jury was permitted to consider, whether properly or improperly admitted.

Morris v. State, 460 S.W.3d 190, 193 (Tex. App.—Houston [14th Dist.] 2015, no 

pet.). Because appellant’s confession and the State’s extraneous offense evidence 

could have contributed to the jury’s verdict, they are relevant to a legal sufficiency 

analysis.
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However, even without considering appellant’s confession or extraneous 

evidence, the remaining evidence is still legally sufficient to support the 

conviction. To the extent that appellant intends to argue that the evidence at trial 

was legally insufficient as to every disputed fact, we consider whether a rational 

trier of fact could have found beyond a reasonable doubt that appellant was one of 

the assailants that robbed complainant on December 21 and that a firearm was used 

during the robbery. Appellant does not dispute that assailants threatened the 

complainant in the course of committing theft. He only asserts that evidence was 

insufficient to prove identity and, we presume, use of a firearm. We find that the 

evidence was legally sufficient to support the jury’s findings on both issues.

At trial, the complainant testified that he was threatened with at least one 

gun during the robbery. Disregarding the State’s extraneous evidence of firearm 

use, that testimony alone is sufficient to support the jury finding. Testimony by a 

lay witness that a defendant used a firearm during an offense is sufficient to 

support a finding of use of a deadly weapon. Gomez v. State, 685 S.W.2d 333, 336

(Tex. Crim. App. 1985) (en banc); Bradley v. State, Nos. 14–08–00038–CR, 2008 

WL 4647289, at *3 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)(mem. op., 

not designated for publication). 

While the complainant was unable to directly identify appellant as one of his 

assailants, circumstantial evidence alone can be sufficient to prove identity. 

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The jury was 

presented with surveillance footage showing a blue BMW SUV with a partially 

visible license plate and photographs of the vehicle appellant was driving when he 

was arrested. The jury could have reasonably concluded that the vehicles were the 

same. The same footage also showed two of the suspects wearing hoodies identical 

to those worn by appellant and his cousin when they were arrested. The 
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complainant testified that the assailants drove a blue vehicle and that they were 

speaking to him in Spanish. Two firearms were in appellant’s car at the time of his 

arrest. The circumstantial evidence is not so scant that no reasonable fact finder 

could conclude that appellant was one of the assailants responsible for the 

December 21 robbery. Cf. Freeman v. State, No. 01–18–00610–CR, 2020 WL 

894453, at *6 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (mem. op., not 

designated for publication) (holding evidence that the defendant was driving a car 

matching a description given by the complainant, that defendant had over nine 

hundred dollars in cash, and that defendant had “one particle consistent with 

primer gunshot residue” on his hand was sufficient to prove identity).

Even if the other evidence was insufficient to prove that appellant was 

culpable, his recorded confession—in which he identified himself from the 

surveillance footage—was sufficient to prove his identity as one of the assailants.

Under the applicable standard of review, a rational trier of fact could have 

found beyond a reasonable doubt that appellant intentionally threatened the 

complainant with fear of imminent bodily injury or death, by using and exhibiting 

a deadly weapon, in the course of committing theft and with intent to obtain or 

maintain control of the property. See Johnson v. State, 509 S.W.3d at 324; Walker 

v. State, 180 S.W.3d at 832–33; Neelys v. State, 374 S.W.3d 553, 559; Guevara v. 

State, 152 S.W.3d at 50. Finding no merit in appellant's challenge to the 

sufficiency of the evidence supporting his conviction for aggravated robbery, we 

overrule appellant's fourth issue.

B. Did the trial court reversibly err by ruling that appellant “opened the 

door” to extraneous evidence of the use of a firearm?

In his first issue, appellant complains that because he had not opened the 

door, the trial court should not have admitted evidence of extraneous offenses 
10

committed by appellant during which he or one of his coconspirators used a 

firearm. 

We review the trial court’s decision to admit or exclude evidence under an 

abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. 

App. 2018). A trial court abuses its discretion when its decision lies outside the 

zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. 

Crim. App. 2010). We may not substitute our own decision for that of the trial 

court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We uphold 

the trial court's ruling if it is reasonably supported by the record and is correct 

under any theory of law applicable to the case. Seidule v. State, 622 S.W.3d 480, 

489 (Tex. App.—Houston [14th Dist.] 2021, no pet.).

In a criminal case, the prosecution may introduce extraneous evidence after 

the defendant opens the door by raising a defensive theory that would tend to 

negate an element of the offense. Tex. R. Evid. 404(b)(2). On cross-examination, 

the responses elicited from the State's witnesses . . . must be sufficient to construct 

a defensive theory before the State may introduce extraneous-offense evidence in 

rebuttal.” Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 

2008, pet. ref’d). “To raise a defensive theory sufficient to open the door to the 

introduction of the extraneous-offense evidence, the cross-examination responses 

must undermine the State's testimony and effectively place in controversy a fact 

that testimony was offered to prove.” Id. 

At trial, appellant objected that he had not opened the door to extraneous 

offense evidence. Based on his conversation with the trial court, it is not entirely 

clear whether his ultimate running objection was limited solely to that point or if it 

extended to a general objection to admissibility under Rule 404(b)(1). However, 

we need not consider the scope of the objection because appellant’s only argument 
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on appeal is that he had not opened the door.

The trial court found that appellant’s cross-examination of the complainant 

“opened the door [by] saying that he did not use a gun, that there's not knowledge 

of a gun, there wasn't use of a gun, you couldn't tell if there was a gun, that he 

never possessed a gun during this crime.” The complainant’s testimony was the 

only evidence that a firearm was used during the December 21 robbery. By 

suggesting that the complainant did not see a gun or that the object he saw was not 

a real gun, appellant undermined the credibility of the State’s witness and the 

witness’s testimony that his assailants had threatened him with a firearm. See

Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994) (“[E]xtraneous 

offenses are admissible to rebut defensive theories raised by the testimony of a 

State's witness during cross-examination.”); Martin v. State, 173 S.W.3d 463, 466 

(Tex. Crim. App. 2005) (“[E]xtraneous-offense evidence may be admissible when 

a defendant raises a defensive issue that negates one of the elements of the 

offense”). The trial court did not abuse its discretion by ruling that appellant 

opened the door to evidence of the extraneous offenses where a firearm was used.

We overrule appellant’s first issue. 

C. Did the trial court abuse its discretion by admitting extraneous offense 

evidence even though appellant was not identified as an assailant?

Appellant complains in his second issue that the trial court erred by 

admitting extraneous evidence of two other aggravated robberies at the punishment 

stage of his trial. Specifically, he argues that because the witnesses did not identify 

him as an assailant, his criminal responsibility could not be proven beyond a 

reasonable doubt, so the extraneous offense evidence was therefore not relevant 

under Article 37 of the Texas Code of Criminal Procedure. Tex. Code Crim. Pro. 

art. 37.07 § 3(a)(1).
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As a threshold matter, we find that appellant failed to preserve this issue for 

appeal. Preservation of an issue requires that the objection “stated the grounds for 

the ruling that the complaining party sought from the trial court with sufficient 

specificity to make the trial court aware of the complaint, unless the specific 

grounds were apparent from the context . . . .” Tex. R. App. P. 33.1. Moreover, the 

objection at trial must comport with the complaint raised on appeal. Tex. R. App. 

P. 33.1(a)(1); Sanchez v. State, 595 S.W.3d 331, 336–37 (Tex. App.—Houston 

[14th Dist.] 2020, no pet.). Aside from his running objection to all extraneous 

offense evidence, appellant did not object to the relevance of the evidence offered 

at the punishment stage, nor did he object that the offenses could not be attributed 

to him beyond a reasonable doubt. His only objection to extraneous offense 

evidence was that he had not opened the door. At most, we might reasonably 

extend the scope to a general objection under Rule 404(b)(1) of the Texas Rules of 

Evidence. Tex. R. Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.”). Even in that case, 

appellant failed to raise a complaint under Article 37. He only renewed his running 

objection at the punishment stage; he did not challenge the punishment witness’s 

testimony on the grounds now raised on appeal. His original objection during the 

guilt-innocence stage could not have implicated Section 3 of Article 37. See Allen 

v. State, No. 14–12–01086–CR, 2014 WL 3587372, at *6 (Tex. App.—Houston 

[14th Dist.] 2014, pet. ref’d) (mem. op., not designated for publication) (holding 

that defendant’s objection at trial that State’s notice of extraneous offenses was 

deficient because it allegedly contained an incorrect date did not preserve 

complaint that notice was deficient because it did not state the name of the alleged 

victim or the county in which the bad act occurred). Therefore, we find that 

appellant did not adequately preserve his second issue, forfeiting his right to appeal 
13

it.

We overrule appellant’s second issue.

D. Did the trial court err by admitting evidence of appellant’s confession?

In his third issue, appellant complains that the trial court abused its 

discretion by admitting evidence of his confession because the officer conducting 

his interrogation did not ask whether he wanted to waive his Miranda rights. See 

Miranda v. Arizona, 384 U.S. 436 (1966).

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. 

Crim. App. 2017). The trial judge is the sole trier of fact and judge of credibility of 

witnesses at a motion to suppress hearing. Lerma v. State, 543 S.W.3d 184, 190 

(Tex. Crim. App. 2018). Therefore, we afford almost complete deference to the 

trial court’s determination of historical facts. Id. However, we review de novo the 

legal significance of those facts. Ramirez-Tamayo, 537 S.W.3d at 35.

We must view the evidence in the light most favorable to the trial court's 

decision on the motion. State v. Garcia, 569 S.W.3d 142, 152–53 (Tex. Crim. App. 

2018). When, as here, the trial court does not make explicit findings of fact, we 

presume that the court made implicit findings of fact, if supported by the record.

Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We sustain the trial 

court's decision on the motion if it is correct under any applicable theory of law.

State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We may reverse 

only when the decision is arbitrary, unreasonable, or outside the zone of reasonable 

disagreement. Id. 

No oral statement of an accused made as a result of custodial interrogation 

shall be admissible against the accused in a criminal proceeding unless the accused 
14

was warned of his rights knowingly, intelligently, and voluntarily waived the rights 

set out in the warning. Tex. Code Crim. Pro. Art. 38.22 § 3(a)(2). However, an 

express waiver is not required. Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. 

App. 2010). A valid waiver is not presumed from the silence of the accused after 

warnings are given or from the fact that an admission is obtained, but it can be 

inferred from the words and actions of the interrogated person. Id. The trial court 

may rely on an implied waiver whenever the totality of the circumstances, as 

reflected by the recording of the oral statement, supports it. Leza v. State, 351 

S.W.3d 344, 353 (Tex. Crim. App. 2011). A recording showing that warnings were 

given, the accused understood his rights, and the accused did not invoke those 

rights is sufficient to demonstrate a valid Miranda waiver. Umana v. State, 447 

S.W.3d 346, 356 (Tex. App.—Houston [14th Dist.] 2014); Berghuis v. Thompkins, 

560 U.S. 370, 384 (2010).

Appellant has not disputed, either at trial or on appeal, that he was warned of 

his rights pursuant to Miranda, and Article 38.22 of the Texas Code of Criminal 

Procedure. Nor has he disputed that he understood his rights after receiving the 

warnings. Appellant acknowledged his Miranda warnings, accepted the officer’s 

invitation to speak with him, and gave uncoerced responses to officers’ questions 

without invoke his rights. We conclude that the totality of the circumstances 

supports the trial court’s reliance on appellant’s implied waiver of his rights.

We overrule appellant’s third issue.

III. CONCLUSION

Affording the proper deference to the trial court, we find that the trial court 

did not abuse its discretion in ruling that appellant opened the door to extraneous 

offense evidence or in ruling that appellant waived his Miranda rights. We also 
15

find that the evidence presented at trial was sufficient to support appellant’s 

conviction and that appellant did not preserve his second issue at the trial court. 

Accordingly, we overrule all of appellant’s four issues and affirm the judgment of 

the trial court.

/s/ Randy Wilson

Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

Do not publish — TEX. R. APP. P. 47.2(b).