1 The seventh issue is prese nted for the first t ime in appe ll ant’s supplem ental brief. NO. 07-02-0527-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 2, 2004

______________________________ JEROME NELS ON, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-438,441; HON. JIM BOB DARNELL , PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. Appellant

Jerome Nelson contests his conviction for aggravated robbery in seven issues. 1 We aff irm the judg ment. Background On October

25, 2 000, Rob ert

Rob ers on was work ing as ma nag er o f a Town and Countryconveniencestore in Lubboc k. While talking to on e or more customer s, he2

observed two black

men walk by

ou tsi de the store. S oon thereafter, the s ame two men entered the store and walked straight to the counter. When Roberson asked how he could help them, appellant place d a handgun on the count er a nd pointed it at Roberson. The other robber then walked behind the coun ter in search of and taking w hatever money he could find. Both men left the store, and Roberson cal led the police

. Based upon information obtaine d from an informant, an arrest warrant wasissued for both appellant and his compatriot . The warr ant was ex

ecute d, and a fter his arre st, appellant gave a writ

ten statement incul pating himsel f. Issue One - Pr

obable Cause

for Aff idavit In his first issue, appellant argues that his a rrest v iolat ed the federal and state constitutions. This is allegedly so because the affid avitaccompanying the applicati on for the arrest warrant failed toshow proba ble c ause, and it failed to sho w probable cause since it l acked information es tablishing the informant’s r eliability . We overrule the iss ue for several reasons. First, in support of his contentio n, appellant reli es exte nsively on evidence developed at a hearing upon his motion to suppres s. Yet, that evidence is irrelevant. This is so because, w hen determining the existenceof probable cause, our revi ew is l imited to the four corners of the affidavit suppor ting the request for t he warrant and the reasonable inferences that can be draw n from it. Lagrone v. State, 742 S.W.2d 659, 661 (Tex . Cri m. 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 20 02, pet. ref’d). So, we canno t conside r the evide nce ten dered a t the he aring.3

Next, to be adequate, t he affidavit must pr ovide a mag istrate with suf ficient information to conclude that probable cause existsto believe the accused commi tted an offense. McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 96 6, 136 L. Ed.2d 851 ( 1997); Brooks v. Sta te, 76 S.W.3d 426, 431 (Tex. App.–H ouston [14 th Dist.] 2002, no pet.). Wh ile probable cause requires more than mere suspicion, the aff iant need not present evidence establishing the suspect’s guilt beyo nd r easonable doubt or by a preponder ance of the eviden ce. Moss v. Stat e, 75 S.W.3d 132, 138 (Tex. App.–San Antonio 200 2, pet. ref’d). He need only illustra te that there is a reasonable probability that the accused committed an offense. And, w hether that standard has been met depends upo n the totality of the circumstances. Id. at 138; Boley
v. State, 16 S.W.3d 95, 97 (Tex. App.–Housto n [1 stDist. ] 200 0, no pet. ). Fur ther more , two of t he circumstances to be conside red when the affiant grounds his statem ents o n representation s by an informant are the reliability or veracity of the informant and the ba sis of his know ledge. State v. Oz una , 88 S.W.3d at310; Martin v. State , 67 S.W.3d 340, 344 (Tex. App.–Texarkana 2001, pet. ref’d). Though being two con siderations, they are not independent

requirement

s of a valid affidavit, however. State v. Ozu na , 88 S.W.3d at 310. In other wor

ds, both need no t be proved f or the affidavit to be vali d. Additionall y, a deficiency in one may be offset by a strong showing of th e other. Ma rtin v. Stat e , 67 S.W .3d at 344. W ith this said, we turn to the situation bef ore us. As described i n the affidavit and its attachments presented to the mag istrate, the informant

identified, by

name, each robber who appeared on the tape of the Town and Countryrobbery. S o too did he not only des cribe w ho actually owned the j acket being worn by one of the suspects but also told t he affiant that he (the informant) was “pr esent2 T his is no t to suggest that the af fi davi t was dev oid of

all evi dence tendi ng to pai nt t he inf ormant as rel iabl e. I ndeed, one can reasonabl y i nferfrom the af fi davi t t hat he was in the pr esence of t he pol ice when the ident if icat ion was made. A f ace-t o-face meeti ng such as t his i s an ind icia suggesti ve of cr edibi li ty since the off ice r m ay th en rea dily id enti fy the i nfo rm ant s hou ld his u tteran ces prov e de ceitfu l. United States v. Jenkins, 313 F.3d 549, 554-55 ( 10 th Cir. 2002) cert. denie d , 538 U. S. 1006, 123 S.Ct . 1917, 155 L.Ed. 2d 838 (2003). 4 when [the] suspectsbragged ab out doing thi s robbery .” Authorit y assigns g reater

weight to an informant’s utterances w hen he personall y observed the act w hich he discloses. See State v. Ozuna , 88 S.W.3d at 310 n.1, citing Illinois v . Gates , 462 U.S. 213, 103S.Ct. 2317, 76 L.Ed.2d 527 (1983 ) (stating that “. . . even if some doubt exists as to a n informant’s motives, his explicitand detailed desc ription of alleged w rongdoing , along w ith
a statement that the e vent was observed fir

st-hand, entitl es the tip to g reater weight than might otherwis e be the case”). An d, thou gh the informant at ba r may not have personally witnessed the actual rob ber y by app ellant and his partner, he non etheless personally heard them admit to it through their brag gadocio. So his reiter ation of the admission i s entitled to greater weight. Moreover, the comment not only illustra tes t he basis of his k nowledge about who committed the offense but also pr ovidesadditional g rounds illu strating why hewas able to iden tify each robber s een in the video; simplyput, he knew who they

were becau se, among other things, he was prese nt when they bragged ab out committing the offen se. To this , we add his i dentification of the true owner of the coa t worn by one malfeasant, which evidence in turn suppor ts the inferen ce that

he had s ome other personal acquaintance with the robbers. So, in short, th is rather s trong evidence illustrating the basis of the informa nt’s knowl edge off sets any la ck ofevide nce i n the aff idavi t rega rdin g his re liab ility. 2 Fina lly, when someone br ags about commit

ting a part icular crimina l act and that admission i s relayed to an independent m agistrate via affidavit, it is within the realm o f5

common sense to conclude that the re exists a reasonable chance that the br aggart di d that aboutwhich he brags. So, we cannot sa y the affidavi t at bar lacked a dequ ate basis to support an inference that there existed a reasonable proba bility that appellant committed the robbery. In other words, we cannot accept the proposition t hat the affidavit fail ed to demonstrate sufficient

probable cause to arrest appel lant. Issue Two - Ineffective Assistance of Counsel In his second i ssue, appellant attac ks the trial court’s fail ure to grant his motion for
new trial due to

the ineffectivenes s of his trial counsel. That is, because his attorney allegedlyfailed to object to an in-court identification of appellant by Roberson, counsel was deficient. Furthermore , the identificat ion wasall egedly obj ectionable becaus e the prosecutor

showed Roberson photos of th e appellant and his accom plice sh ortly before trial. This purportedly c o n s t i t u t e d a n u n r e a s o n a b l y s u g g e s t i v e p h o t o a r r a y . We overrule the point. Among other thing s, the record il lustrates tha tneither defense coun sel nor the trial court were aw

are of the sugg estive photoarray having been shown to Roberson until after he identified appell ant at trial. Having been un aware of the circumstan ce, counsel ca n hardly be faul ted for withh olding objec tion to conduct of which he kn ew not. Moreover, even if tri al co unsel 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 couns el discover

ed, through c ross-examining Rober son, that the latter had been shown the pictures . And, though t he trial cour t held that the s prea d wa s impermissibly suggesti ve, it nonethelessconcluded that t he p roce dure did not taint Roberson’s identification of app ellant. So, appellant act ually w as afforded that whi ch his counsel6

suppo sedly failed to obta in for h im, i.e . an opportunity to contest the v

alidity of both the State’s cond u ct and Roberson’s identifica tion. Thus, we find no prejudice , especially in view of appellant’s ow n admission of gu ilt vi a a statement gi ven to the pol ice and admitted into evidence. Issue Three - Brady Violation The pro secutor’s conduct alluded to in issue number two al so underlies the complaint

raised in i ssue three. Ther e, appellant alleges that the State violated the rule of Brady v. Mar

yland , 373 U.S. 83, 87, 83S.Ct. 1194, 10 L. Ed.2d 215 ( 196 3), since it failed to disclose, prior to trial, that photograp hs of appellant and his accompli ce had been shown to Roberson immediately bef ore trial. W e overrule the issue for several reasons. First, and assu ming arguendothat the prosecutor’ s condu ct evinced a Brady violatio n, the appellant was obligated to request a cont inuance. His failure to do so resulted in a w aiver of the complaint. Taylor v. State, 93 S. W .3d 4 87, 5 02 (T ex. App.–Texarkana2002, no pet.); State v. DeLeon, 971 S.W .2d 7 01, 7 06-0 7 (Te x. App.–Amarillo 1998, pe t. ref’d); Cohen v. State, 966 S.W .2d 7 56, 7 63 (T ex. App.–Beaumont 1998, pet. r ef’d). Second, before rever

sal of the conviction is warranted under Brady, the defendant must establish that i n lig ht of al l the e vide nce, i t is r easonab ly pr

obablethat t he outcome of the t ria l would hav e bee n di fferent if the evidence had been discl osed. Hampton v. State, 86 S.W .3d 603, 612 (Tex. Crim. App. 20 02). Here , appellant gav e the police a statement

wherein he admitted to committing the offense, and the statement was received into evidence. Appellant hav ing admitted his culpability, it was and is highly unlikely that disclosure of the State’s condu ct prior to trial w ould have cr

eated a reasonable probability7

that the outcome w

ould have di ffered. See Medina v. S tate, 743 S.W .2d 9 50, 9 58 (T ex. A pp.–Fort W orth 1988, pet. ref’d ) (finding the information touching upon the iss ue o f identity i mmaterial becausethe appellant admitted to shooting the victims) . Indeed, that appellant

inculpated hi mself also removed from question t he topic of identity. The latter, therefore, was immaterial f or Brady purposes. Id. Issues Four, Five and Six - Deadly Weap on Issues Via his next three issues, appellant arg ues, in effect, t hat the evidence was both legally and f actu all y i nsuffici ent to sup port the j ury ’s fi nding that he used or ex hibited a deadlyweapon du ring the r obbery, i.e. t h a th e c o m m i t t e d a g g r a v a t e d ro b b e r y . We overrule the issues. The State charg ed appellant with having used and exhibited a deadly weapon, the latter being a firearm. Before us, a ppellant arg u es that the State fa iled to prove this allegation since it presented no evidence that th e item utili zed was capabl e of causing death or serious

bodilyinjury. Yet, the record contains some evidence upon which a jury could rationally

conclude beyond reasonable doubt that the appellant actu ally exhibited a handgun or

firearm; indeed, Roberson described the weapon as a “ semiautomatic pi stol.” 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 [14 th Dist.] 2000, pet. ref’d) , the State was not requir ed to tender ev idence illus trating tha t the weapon was capable of causi ng death or seriousbodily i njury. Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Cri m. App. 1991).3 The weapon does not a ppear as an exh ibi t i n the app ell ate r ecord. 8 As for the statement by appellant that t he weapon was not a firearm at

all but rath er
a BB gun, we do not find it of suc h ilk torender the verdict factuall y insuppor table. 3 Again, Roberson testi fied that the weapon was a semiautomatic pi stol and that he b elieved i t to be a real gun that could kil l him. So too di d an officer testify that the weapon “was a handgun,” though he als o 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 i ssue of

fact. And, in res olvin g the m atte r, it c ould have o pted to di sbel ieve appellant’s t es timony and in stead accept that illustrat ing the weapon to be an actual firearm. See Edwards v. Sta te, 10 S.W.3d 699, 701-02 (Tex. App.–H ouston [14 th D ist.] 1999, pet. dism’d) (holding t hat testimony from the vict ims that the defendant used a gun thatresembled a Col t .45 handg un rather than a B B gun allow ed the jury

to make a reasonable deduction that the gun was a firearm). In short, the findi ng that appellant us ed or exhib ited a deadly weapon in the robbery enjo ys the support of both leg ally and factu ally suffici ent evidence. And, because it does, the findin g that he co mmitted aggravated robbery (as opposed to me re robbery) also is supported by both legall y and factuall y sufficient ev idence.

Issue Seven - F

alse or Reckless S tatements i n Affida vit Fina lly, in his seventh issue (presented via a supplementa l bri ef) , appellant again attacks the legiti macy of the arr est warr ant. This time, h owever , he posit s that it should have been invali dated since it was obtai ned through the intentional or reckless use of

false statements. The latter were purportedl y uttered by Detective Sutton, the dete ctive to whom the informant identif ied appellant and his accom plice. Furthermore, the statem ents were4 Appel lant att empted to est abli sh at t ri al t hat t he vi deo had been r eleased to t he press and th e inf ormant could have vi ewed the v ideo p ri or t o tal king t o poli ce. However , t he inf ormant deni ed to pol ice that he h ad p reviou sly see n the robb ery. 9 supposedly false since the informant late r denied identifying the individuals and the video tape was not of suc h quality and kind to per mit one to see and, thereby, identify the peop le captured on it. We overrule the issue. The statements referred to appear in a report attached to the af fidavit discussed in issue on e above. They cons ist of t he fol lowing: On 11-28-01 this

investi gator rece ived information throug h S.I. (01-03) that provided i nformation to the iden tity of the su spects in thi s case. S. I. . . . adv ised that the i dentity of the s uspe cts are Jason Lawson and JeromeNelson. S.I

. . . . vi ewed the v ideo tape that was obtained in this case and positively identi fied the suspects in this case

. S.I. . . . a lso i nforme d this investigator that Jason Law son was the person who went behind the counter w ith the clerk. He stated that the w hite jacket worn in the vi deo has the wo rds ‘FUBU ’ on the back. The jac ketbelongs to Alvin Lawson but Jason Law son is the one w

earing it . The subject was also wearing a red cap. The stocky suspect at the co unter holding the gun is identified as Jer

ome Nelson. S.I . . . . advi sed this subj ect is a paro lee. S.I. . . . informed that they w ere present w hen suspectsbragged ab out doing this robbery. S.I. . . . advis ed suspects ar e robbing various busine sses throughout

Lubbock. S.I. .

. . said Jerome Nelson is wearing whi te and blue FUBU shoes i n the video.

. . . As can be seen from them, Sutton simply indicated th at the S.I. saw the video. Nowhere in it did he sta te that the S.I. i dentified the suspec ts solely from the images ap pearing on itor that one coul d identify the suspects merel y from their appearance i n the video. Indeed, the officer actuall y testified, at a later hearing, that theinformant had provided him with the information about how the ro bbery occurred and who w ent behind the counter before being show n the tape. 4 So too did he tes tify that despite the quality of the tape, it10

would have prov ided sufficient infor mation to i de ntify the susp ects if the v iewer al ready knew them. This coupl ed with hi s other testi mony thatthe informant stated he had been told by the susp ects that they had committed the r

obberies, that the informant then watched the video and recognized the clothing , build, and featur es of the suspect s, and thatthe informant

stated: “[t] hat is them. I [would] know them anywhere” could reasonably lead on e to conclude that the informant w as not identify ing the susp ects due to w hat he
saw in t he v ideo . Ra ther , it coul d be r

easo nabl y de duce d tha t theinfo rman t co uld iden tify them due to his prior know ledge about the offense, who committed it, and w hat the culpri ts
were wearing at t he time. Sutton did concede, at

the hearing, that he did not believe the shoes appell ant was wearing were v isible in th e tape, t hough the info rmant s aid app ellan t was wearing t hem. Yet, there is no showing that the officer knew of or should have noticed the discrepancy between the informant’s state ment and the conte nts of t he tape when w riting hi s report. See Dancy v. Sta te, 728 S.W .2d 7 72, 7 83 (T ex. Crim. App. 198 7), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987) (holding t hat a misstatement r esulting from negligence or inadver

tence does not render a w arrant invalid); Brown v. State, 831 S.W.2d 847, 848 (Tex. A pp.–Dallas 1992) , aff’d, 870 S.W.2d 53 (Tex. Crim. App. 1994) (holding the same). Next, and to the extentthatthe informant later denied making the identificati on, the circumsta nce raised an is sue of credibil ity. That i s, the trial court became obl igated t o decide whoto be lie ve. And, sin ce t hiswas a mat ter of a witness ’ credibil ity, we must defer to the selection made by the trial cour t

. See Guz

man v. Stat

e , 955 S.W .2d 8 5, 89 (Tex.11

Crim. App. 1997) (r

equiring us to defer to the t rial court ’s credibi lity cho ices). And, the trial court obvi ously sel ected Officer Sutton. In sum, appellant fail ed to establis h by a preponde rance of the evide nce that Sutton’s statement with respectto the informant’s ident ification was intentional ly false or made with reckless disregard for the truth. Thus, we agai n hold that the trial court di d not abuse its dis cretion in ov erruling appellant’s mot ion to suppress

. Accordingl y, the judg ment of the trial court is affirmed.

Brian Quinn Justice Do not publish

.