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.
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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 
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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).