The analysis of an identification of a voice differs somewhat from that of an identification by sight, but the standards used to validate a visual identification are equally applicable.See Davis v. State, 180 S.W.3d 277, 283 (Tex.App.—Texarkana 2005, no pet.) (analyzing admissibility of voice identification); see also Williams v. State, 116 S.W.3d 788, 792 (Tex.Crim.App.2003) (" 'while one's voice and handwriting are, of course, means of communication,' a voice or handwriting exemplar 'is an identifying physical characteristic' ") (quoting United States v. Dionisio, 410 U.S. 1, 6–7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) ). Because the sole purpose of the use of the tape recording of appellant's voice was the same as the use of a photo of appellant would have been had Diana been asked to attempt an identification from appearance, we will apply the same types of strictures as are used in the more typical situation involving visual identification.

Here, Pallavi's and Ratnadheer's testimony referred only to a "gun." We recognize that the term "gun" may be a broader term than "firearm" when taken out of context and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns. Davis v. State, 180 S.W.3d 277, 286 (Tex.App.-Texarkana 2005, no pet.) (citing O'Briant v. State, 556 S.W.2d 333, 336 (Tex.Crim.App. 1977)). The fact finder, however, is free to draw reasonable inferences and make reasonable deductions from the evidence as presented within the context of the crime.

Threatening the victim with a gun, "in itself suggests that it is a firearm rather than merely a gun of the non-lethal variety," such as "BB guns, blow guns, pop guns, and grease guns." Cruz, 238 S.W.3d at 388-89 (citing O'Briant v. State, 556 S.W.2d 333, 336 (Tex. Crim. App. 1977)); see also Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.) (victim testified defendant pointed a gun at her and she was afraid she was going to die; appellate court found this presented sufficient evidence for jury to find weapon used was a firearm). Viewing the evidence in the light most favorable to the jury's verdict, the evidence, and reasonable inferences that can be drawn from the evidence, were sufficient for the jury to find the gun Oates used or exhibited in the robbery was, in fact, a firearm.

A voice identification analysis differs somewhat from that of a visual identification, but the standards used to validate a visual identification are equally applicable. See Davis v. State, 180 S.W.3d 277, 283 (Tex. App.—Texarkana 2005, no pet.) (analyzing admissibility of voice identification); see also Williams v. State, 116 S.W.3d 788, 792 (Tex. Crim. App. 2003) ("'while one's voice and handwriting are, of course, means of communication,' a voice or handwriting exemplar 'is an identifying physical characteristic'") (quoting United States v. Dionisio, 410 U.S. 1, 6-7, 93 S. Ct. at 764 (1973)). Appellant contends that "it was impermissibly suggestive to ask DeSilva to identify Ana Maria Gonzalez' voice as the anonymous caller by asking him to listen to a recording of her voice without providing exemplars of other females voices with Hispanic accents for comparison purposes."

Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979); see also Price v. State, 227 S.W.3d 264, 266-67 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd, untimely filed) (holding, based on testimony by one victim that the appellant put a gun in her face and second victim that the appellant pointed a gun at him, the jury could have found beyond a reasonable doubt that the gun the appellant used and exhibited during the robbery, which was never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.— Houston [1st Dist.] 2006, pet. ref'd) (op. on reh'g) (holding evidence was legally sufficient to support finding that the gun used was a firearm based on witness testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding evidence was legally sufficient to allow the jury to conclude that the appellant used a firearm where the victim testified that appellant pointed a gun at her and she was afraid she was going to die that night, even though she was not asked to identify the type of weapon and the record contained no other relevant evidence on that point).

ied that appellant pointed a "gun" at him and described the gun as similar to a "Glock-type gun." "Testimony using any of terms 'gun,' 'pistol' or 'revolver' is sufficient to authorize the jury to find that a deadly weapon was used." Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979); see also Price v. State, 227 S.W.3d 264, 266-67 (Tex. App.-Houston [1st Dist.] 2007, pet. dism'd, untimely filed) (holding, based on testimony by one victim that the appellant put a gun in her face and second victim that the appellant pointed a gun at him, the jury could have found beyond a reasonable doubt that the gun the appellant used and exhibited during the robbery, which was never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (op. on reh'g) (holding evidence was legally sufficient to support finding that the gun used was a firearm based on witness testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.-Texarkana 2005, no pet.) (holding evidence was legally sufficient to allow the jury to conclude that the appellant used a firearm where the victim testified that appellant pointed a gun at her and she was afraid she was going to die that night, even though she was not asked to identify the type of weapon and the record contained no other relevant evidence on that point). Moreover, when appellant pointed the gun at Bock and ordered him to lie on the ground, Bock feared that appellant was going to kill him. Where the accused threatens the victim with a gun, the act itself suggests that the gun is a firearm rather than merely a gun of the non-lethal variety. Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.-Houston [14th Dist.] 1999), pet. dism'd, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002); Toy v. State, 855 S.W.2d 153, 159 (Tex. App.-Houston [14th Dist.] 1993, no pet.); Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.-Corpus Christi 1988, pet. ref'd). The fact finder is free to draw reasonabl

's vehicle to conduct a drug transaction on complainant's behalf. We recognize that the term "gun" may be a much broader term than "firearm" when taken out of context, and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns. O'Briant v. State, 556 S.W.2d 333, 335-36 (Tex. Crim. App. 1977). Courts also have recognized, however, that the fact finder may draw reasonable inferences and make reasonable deductions from the evidence as presented to it within the context of the crime. Cruz, 238 S.W.3d at 388. Absent any specific indication to the contrary at trial, the jury should be able to make the reasonable inference from the complainant's testimony that the "gun" used in the commission of the crime, was, in fact, a firearm. Id. Appellant's threatening the complainant with the gun in itself suggests that it is a firearm rather than merely a gun of the non-lethal variety. See Riddick v. State, 624 S.W.2d 709, 711 (Tex. Crim. App. 1981); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.-Texarkana 2005, no pet.). Additionally, the complainant testified he was in fear for his life because of the gun. See Davis, 180 S.W.3d at 286. There is nothing in the record to suggest the gun used by appellant was a toy or anything other than a firearm. The jury, as the fact-finder, was free to make reasonable inferences from the context of the crime. It was reasonable for the jury to find that the "gun" the complainant testified to, was, in fact, a firearm. Moreover, the jury was free to believe or disbelieve any portion of the witnesses' testimony. Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The jury's choice to believe the State's case over the entirely different case presented by the defense was within its sole province. See id. From this evidence, the jury could have concluded, beyond a reasonable doubt, that the gun complainant saw was a firearm. Accordingly, the evidence is legally sufficient to show the gun appellant used was a firearm. Appellant points to

ily injury." A firearm is a deadly weapon. Tex. Pen. Code Ann. § 1.07(17)(A) (Vernon Supp. 2006). While the court's charge did not define the term "firearm," section 46.01 of the Penal Code provides that a firearm is "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003). Here, the only testimony that explicitly used the term "firearm" was the testimony of Officers Gonzales and Miller, stating that neither officer found shell casings or other evidence that would have come from a firearm in the complainant's home during the investigation of the shooting. The remainder of the testimony at trial referred only to a "gun." The term "gun," in a different context, may be a broader term than "firearm" and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns. See Davis v. State, 180 S.W.3d 277, 286 (Tex.App.-Texarkana 2005, no pet.) (citing O'Briant v. State, 556 S.W.2d 333, 335-36 (Tex.Crim.App. 1977)). The fact-finder is free to draw reasonable inferences and make reasonable deductions from the evidence as presented to it within the context of the crime. Davis, 180 S.W.3d at 286. Thus, absent any specific indication to the contrary at trial, the jury may draw the reasonable inference or make the reasonable deduction that the "gun" used in the commission of a crime was a "firearm." Id. (citing Wright v. State, 591 S.W.2d 458, 459 (Tex.Crim.App. 1979)). Appellant challenges the sufficiency of the evidence by pointing out that neither a firearm nor evidence of a firearm, such as shells or shell casings, was recovered from the scene of the crime. Other evidence, however, demonstrates that the complainant was shot with a firearm. The complainant repeatedly testified to being "shot." At the time he was shot, the complainant stated that he "heard a pop . . . a pow." When Officer Gonzales arrived at the scene, she not

Voice identification is an acceptable means of identification and has been held sufficient to support a conviction. See Locke v. State, 453 S.W.2d 484, 485 (Tex. Crim. App. 1970) ("Voice is a competent means of identification if the witness had any previous acquaintance with the person identified"); Davis v. State, 180 S.W.3d 277, 285-86 (Tex. App. — Texarkana 2005, no pet.) (holding voice identification sufficient to support conviction).

See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. [Panel Op.] 1979) (based on testimony by one victim that the defendant put a gun in her face and by a second victim that the defendant pointed a gun at him, the jury could have found beyond a reasonable doubt that the gun used and exhibited by the defendant during the robbery, which was never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (evidence was sufficient to support a finding that the gun used was a firearm based on witness testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.-Texarkana 2005, no pet.) (evidence was legally sufficient to allow the jury to conclude that the defendant used a firearm where the victim testified that the defendant pointed a gun at her and she was afraid she was going to die that night, even though she was not asked to identify the type of weapon and the record contained no other relevant evidence on that point).