Jeysen Cain v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00829-CR
Jeysen Cain, Appellant
v.
The State of Texas, Appellee
FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 78306, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Jeysen Cain of aggravated robbery with a deadly weapon—a
firearm. See Tex. Penal Code § 29.03(a)(2). The trial court assessed punishment at 28 years’
imprisonment. In his sole appellate issue, Cain contends that the trial court abused its discretion
by admitting extraneous-offense evidence of an earlier aggravated robbery that Cain committed.
Finding no error in the admission of the evidence, we will affirm.
BACKGROUND
The Verizon Robbery
During the evening of December 23, 2016, Isidro Yanez was working alone at
a Verizon store in Killeen with no customers present. Two males entered, with their faces
concealed. One wore a black hoodie and black athletic pants with white stripes down the side,
and the other wore a dark or black hoodie, dark or black pants, and a red bandanna. Yanez could
tell that they both were black teenage males around 5ʹ6ʺ to 5ʹ9ʺ tall.
They were armed, and they told Yanez in raised voices, “This is not a game.”
They demanded phones and ordered Yanez to take them to the store’s safe. Yanez took them to
the room at the back of the store with the safe. They told him to get down on his knees and turn
around, and he complied.
Video recordings from store security cameras show one of the robbers aiming a
gun at Yanez while he knelt with his back to the robbers. The recordings show the other robber
taking unopened boxes of cellphones from the safe and putting some into a white bag and others
into a black backpack. After the robbers left, Yanez locked the store’s doors and called for help.
Robert Burton, the store’s manager, was called to the scene and provided police
with the security-camera recordings of the robbery. Burton could not identify the robbers from
the recordings because they concealed their faces. He also checked inventory and prepared for
police a list of what was stolen, including each stolen phone’s serial number. The robbers had
stolen about 40 phones, 34 of which were iPhone 7 models.
The T-Mobile Robbery
Twenty days before the Verizon Robbery, a black male had robbed the employees
of a T-Mobile store. As in the Verizon Robbery, T-Mobile employees were the only people in
the store around sundown of that day. Employee Sean Lopez went outside the store’s back door
to smoke a cigarette and saw a black male emerge from near a dumpster, then walk toward the
front of the store. Employee Phillip Jameson, still inside, saw a black male come in through
the store’s front door. Jameson thought him younger than 20 years old and about 5ʹ10ʺ tall. He
pointed a gun at Jameson, telling him that he wanted “all the phones that [they] had.” Jameson
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brought the robber to the back room and unlocked the safe. The robber told him to “get on the
ground” and took several boxes of cellphones from the safe and put them in a black backpack.
The robber went outside through the back door. Lopez saw him and noticed that
he was young, wearing a Nike gray pullover hoodie and dark-gray Adidas-type track pants,
holding a gun in his right hand, and carrying “a backpack filled with phones.” The robber
looked at Lopez; said, “It’s a wrap”; and ran off, dropping one of the new cellphone boxes out of
the backpack. The robber got in a car near the dumpster, which then peeled out and drove off.
Lopez picked up the dropped phone box and went inside to check on Jameson.
The two called police and their manager. Detective Joseph Delongchamps, of the
Killeen Police Department (KPD), responded to the scene.1 He talked with Jameson and Lopez
and took the dropped cellphone box, still wrapped in plastic. He sent the box for fingerprint
testing, which yielded a latent fingerprint, but he did not yet have a suspect for comparison.
The T-Mobile manager, Jared Ross, checked inventory to see what was stolen.
The stolen phones were: eight iPhone 7 models, two iPhone 6S models, and three Samsung GS7
models. Ross gave police a list of the phones stolen, including their serial numbers.
Officers from the KPD’s latent-fingerprint-identification unit searched a fingerprint
database for any matches for the print recovered from the dropped cellphone box. There was a
potential match with a known fingerprint taken from Cain. Joey Bernier, a fingerprint examiner,
compared the recovered latent fingerprint to a known record of Cain’s fingerprints. Bernier
found twice as many favorable points of comparison between the recovered latent fingerprint and
the matching fingerprint of Cain’s than what is usually required to establish a match, and he
opined that they were a match.
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Detective Delongchamps also investigated the Verizon Robbery.
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Investigating the Verizon Robbery Leads to Cain
Following the robbery at the Verizon store, Ricky Miller, a Verizon employee,
searched online for people selling cellphones and found a December 25, 2016 Craigslist ad
from someone in the “Killeen / Temple / Ft Hood” area selling an iPhone 7 still wrapped in its
box. The ad included photos of the box, and Miller could see in the photos, reflected on the
box’s packaging, “[t]he safe room, the reflection, the lighting point and our Killeen location,”
including a particular “column.” He could tell that the photographer was standing in the Verizon
store’s back room in front of the safe.
Miller texted the seller at the phone number listed in the ad. He asked if the
iPhone was still available, and the seller said that it was. Miller asked for the phone’s serial
number to see whether his provider would support that phone, and the seller sent a photo of the
iPhone’s box and serial number. Miller checked the number against the list of stolen Verizon
phones, and it matched. He and the seller arranged to meet at a Walmart in Killeen. Miller
reported the conversation to police and let them use his phone to keep texting the seller.
Detective Delongchamps reviewed the Craigslist ad and discovered that the
seller’s phone number belonged to Cain’s mother and that Cain was a “registered user” of the
number. He also learned from T-Mobile personnel that the number was once “attached” to one
of the phones stolen in the T-Mobile Robbery.
Detective Delongchamps, impersonating Miller, texted with the seller. He and the
seller agreed to meet in the Walmart parking lot. Officers prepared a “buy bust”—a controlled
purchase of the stolen Verizon phone right after which officers would arrest the seller.
For the buy bust, Garrison Hennig, then a KPD officer, attended undercover as
the buyer. Because weapons were involved in the robberies, SWAT officers waited nearby as
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support. The seller arrived at the Walmart parking lot in a car with two women. He then met
with Hennig, who asked the seller to show the phone, confirmed the price, and handed over the
cash. They parted ways, and Hennig signaled to waiting officers to arrest the seller. Officers
moved to apprehend the seller and told him to stop, but the seller responded, “I didn’t do
anything,” and started running and throwing the cash in the air. After a short chase, officers
arrested the seller, who was later identified as Cain.
Officers recovered the cellphone box that Cain brought to the buy bust. It bore a
serial number matching one on the list of phones stolen in the Verizon Robbery, although it was
different from the one that the seller had sent in the text conversation. Cain also had with him a
T-Mobile iPhone 7, which Detective Delongchamps submitted for digital forensic extraction.
KPD Detective Keith Drozd performed the extraction. He found text messages
and notes on Cain’s phone. Some of the extracted text messages were the ones that either Miller
or officers sent to the Craigslist seller to set up the buy bust. The “Notes” section of the phone
included the text “All these niggas hatin on me cuz iam hittin licks,” and Detective Drozd,
based on his experience as a detective, understood “hittin licks” to be slang for committing
robberies. In another text conversation, the person using Cain’s phone was discussing phones
with someone, and that person expressed a suspicion that Cain had stolen the phones. In another,
the person using Cain’s phone was discussing how to unlock a phone. And in another, the person
using Cain’s phone set up a meeting to deliver a phone to someone at a Waco flea market and
discussed whether the phone was unlocked to work with any carrier.
Detective Drozd also extracted photos and videos from Cain’s phone. A photo
and a video both showed Cain wearing a black hoodie with a Nike label and black sweatpants
with white stripes down the sides. Another video showed Cain handing an unopened iPhone box
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to someone. Other photos and videos showed large amounts of money, including a photo of a
black bag full of money, a video of Cain counting a large amount of money in $50 and $20 bills,
and other photos of guns and money either shown together or separately.
Detective Delongchamps reviewed the digital extraction and discovered relevant
location information, or the lack thereof, recorded by the phone. He explained that cellphones
constantly record location data but that this could be disabled by either turning off the location
feature or turning off the phone entirely. He discovered that Cain’s phone recorded location
information on the day after the T-Mobile Robbery while at or near the high school that Cain
attended but recorded no location information on the day of the robbery. The phone also
recorded location information throughout December, but, from 8:00 p.m. to 8:30 p.m. on
December 23 while the Verizon Robbery was happening, the phone did not record location
information. The last prior record of location information was from 7:45 p.m. that day, at or
near Cain’s house. The phone next recorded location information around 9:43 p.m., again at or
near Cain’s house. Except for this roughly two-hour dark period, the phone otherwise recorded
location information that day.
Cain’s mother and sister showed Detective Delongchamps photos posted to
Cain’s Instagram account. The photos showed Cain wearing “similar clothing to what he had”
on during the Verizon Robbery, including a black hoodie with a white logo on the front and dark
athletic pants with white stripes down the sides. On the Verizon security-camera recordings, the
robber who took the phone boxes from the safe and put some of them in the black backpack was
the one wearing clothing like Cain’s.
KPD Detective Brian Goodsby also spoke with Cain’s mother. She let him and
other officers search her home, where Cain lived. Officers found seven boxes of new iPhones,
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all still wrapped in their packaging, some in Cain’s parents’ bedroom and others in their closet,
including an empty T-Mobile cellphone box. Detective Goodsby asked Cain’s mother why she
had stolen phones in her closet, and she responded that she took them from Cain because she was
suspicious about why he had them. The officers also discovered another unopened cellphone
box in Cain’s mother’s car. All the boxes bore serial numbers matching those of some of the
phones stolen in the Verizon Robbery. They also found $1,940 in $20 bills in Cain’s bedroom
closet.
Cain’s Trial and Conviction
The State indicted Cain for the Verizon Robbery and tried the case to a jury. Cain
objected to admitting evidence of the T-Mobile Robbery under both Rule of Evidence 404(b), to
prove identity, and Rule of Evidence 403, because the danger of unfair prejudice substantially
outweighed the evidence’s probative value. The trial court overruled the objections.
Cain testified in the defense’s case-in-chief. He admitted that police recovered
cellphone boxes from his house but said that he got them from a friend at school named “Davion
Turner,” now dead, and only later learned that they were stolen. He admitted that he made the
Craigslist ad, was the one texting with officers about the ad, and texted others to tell them that
phones he was offering for sale were “going fast.” He admitted that:
▪ one of his phone’s videos showed him counting money;
▪ he posted the video to his Instagram account;
▪ about $1,940 was found in his room;
▪ he threw the cash at the buy bust, began running away, and said, “I didn’t
do anything wrong; I didn’t do anything”; and
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▪ a phone that he gave away to a friend at school was one of the phones
stolen in the T-Mobile Robbery.
The jury convicted Cain of aggravated robbery with a deadly weapon, and this appeal followed.
ADMISSION OF EVIDENCE
Standard of Review
We review a trial court’s admission of evidence for an abuse of discretion.
Sandoval v. State, 409 S.W.3d 259, 281, 297 (Tex. App.—Austin 2013, no pet.). A trial court
abuses its discretion only if its ruling “lies outside the zone of reasonable disagreement.” Id.(quoting Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). Reversal for an abuse
of discretion in admitting evidence requires more than simply disagreeing with the trial court’s
ruling. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
If an admission of evidence was an abuse of discretion, we then analyze whether
the admission caused harm by “affect[ing] the substantial rights of the” defendant. Sandoval,
409 S.W.3d at 287. We will not overturn a criminal conviction for non-constitutional error like
wrongful admission of evidence if, after examining the record as a whole, we have fair assurance
that the error either did not influence the jury or influenced the jury only slightly. Id.
Rule of Evidence 404(b)
In a portion of his sole appellate issue, Cain contends that evidence of the
T-Mobile Robbery was inadmissible under Rule of Evidence 404(b) because that robbery lacked
sufficient common characteristics with the Verizon Robbery and so was not probative of Cain’s
identity as one of the robbers at the Verizon store.
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The State may offer “[e]vidence of a crime, wrong, or other act” in limited
circumstances. Tex. R. Evid. 404(b)(1); Harmel v. State, 597 S.W.3d 943, 960 (Tex. App.—
Austin 2020, no pet.). The State should not offer it “to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the character.” Tex. R.
Evid. 404(b)(1); Harmel, 597 S.W.3d at 960. But it may offer it “for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Tex. R. Evid. 404(b)(2) (emphasis added); accord Harmel, 597 S.W.3d
at 960.
When, as here, the defense puts identity in issue, the State may prove identity by
offering extraneous-offense evidence “of modus operandi in which the pattern and characteristics
of the charged crime and the uncharged misconduct are so distinctively similar that they
constitute a ‘signature.’” Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008); accord
Johnson v. State, 68 S.W.3d 644, 650–51 (Tex. Crim. App. 2002). “No rigid rules dictate what
constitutes sufficient similarities; rather, the common characteristics may be proximity in time
and place, mode of commission of the crimes, the person’s dress, or any other elements which
mark both crimes as having been committed by the same person.” Segundo, 270 S.W.3d at 88.
A “signature” may even be just “one unique characteristic” shared by both crimes—for example,
either the use of “the same antique silver crossbow” across several robberies or a rapist–
murderer’s having left his DNA inside both of two victims at or near the time of each victim’s
death. Id. at 88–90. But the shared characteristics must be “something that sets [the extraneous
offense] apart from its class or type of crime in general, and marks it distinctively in the same
manner as the principal crime.” Id. at 89 n.26 (quoting Ford v. State, 484 S.W.2d 727, 730 (Tex.
Crim. App. 1972)).
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The State argues that the T-Mobile Robbery shares sufficient common
characteristics with the Verizon Robbery so that Cain’s “signature” is on both. It points out that
both robberies were committed by a black male dressed in a black or dark hoodie with a Nike
logo and black or dark athletic pants. It notes that officers found evidence in Cain’s phone of his
wearing such an outfit. It also notes that both robberies involved a robber brandishing a gun,
demanding only cellphones, making the store employee get on the ground when taken to the
back of the store to get the phones, putting the phone boxes into a black backpack, and then
leaving. Finally, the State notes that Cain’s fingerprint was found on the cellphone box dropped
in the T-Mobile Robbery and that he used a cellphone stolen in that robbery to advertise for sale
a phone stolen in the Verizon Robbery.
Cain argues that the two robberies lack sufficient common characteristics. He
says that witnesses disagreed about the backpack’s color. And he says that “there is nothing
that sets the extraneous T-Mobile [Robbery] apart from its class or type of crime in general,
and marks it distinctively in the same manner as the” Verizon Robbery. Thus, he says that
the “similarities of the extraneous offense and the charged offense . . . are not as unusual
or idiosyncratic as to signal conclusively that the two offenses were the handiwork of the
same individual.”
We agree with the State. In both robberies, no customers were in the store. A
robber then entered each store in the early evening through the store’s front door, both times
wearing a black or dark Nike hoodie and black or dark athletic pants. In both robberies, a robber
had a gun. In both, a robber demanded phones and nothing else. When taken to the back interior
of the store in both robberies, a robber told the store employee to get on the ground. Both times
a robber took unopened boxes of cellphones out of the store’s safe; put them into a bag, using a
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black backpack across both robberies; and then left. Cain admitted having (and giving to a
friend) a phone stolen in the T-Mobile Robbery. Similarly, officers found in Cain’s home
phones stolen in the Verizon Robbery. The phone of Cain’s seized at his arrest was a T-Mobile
phone, shared a number that was once “attached” to one of the phones stolen in the T-Mobile
Robbery, was used to advertise the sale of a phone stolen in the Verizon Robbery, and contained
a photo of Cain giving an unopened cellphone box to a friend. We see all this as a set of
sufficient common characteristics between the T-Mobile Robbery and the Verizon Robbery so
that both bore Cain’s mark. See Tex. R. Evid. 404(b)(2); Segundo, 270 S.W.3d at 88; Johnson,
68 S.W.3d at 650–51. The trial court thus did not abuse its discretion by admitting, as proof
of identity for the Verizon Robbery, evidence of the T-Mobile Robbery over the Rule 404(b)
objection. See Sandoval, 409 S.W.3d at 281, 297. We overrule this portion of Cain’s sole issue.
Rule of Evidence 403
In the remaining portion of his appellate issue, Cain contends that the evidence of
the T-Mobile Robbery was inadmissible under Rule 403 because the unfair prejudice stemming
from admitting that evidence substantially outweighed its probative value.
A trial court may exclude evidence whose “probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R.
Evid. 403. Unfair prejudice involves “an undue tendency to suggest an improper basis for
reaching a decision,” Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000), and often
involves decisions based on emotion, see Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.
2007); Gittens v. State, 560 S.W.3d 725, 732 (Tex. App.—San Antonio 2018, pet. ref’d). “Rule
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403 favors the admission of relevant evidence and carries a presumption that relevant evidence
will be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App.
2010); accord Walter v. State, 581 S.W.3d 957, 978 (Tex. App.—Eastland 2019, pet. ref’d).
Rule 403 calls for a balancing test, under which the analysis includes, but need
not be limited to, (1) the probative value of the evidence; (2) the potential to impress the jury in
some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for it. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019); Walter,
581 S.W.3d at 978. Probative value is “the inherent probative force of an item of evidence—that
is, how strongly it serves to make more or less probable the existence of a fact of consequence to
the litigation—coupled with the proponent’s need for that item of evidence.” Davis, 329 S.W.3d
at 806.
Evidence admissible under Rule 404(b) that tends to prove the defendant’s
identity as perpetrator of the charged offense often is admissible under Rule 403 too. See, e.g.,
Johnson, 68 S.W.3d at 651–52; Lane v. State, 933 S.W.2d 504, 517, 520 (Tex. Crim. App.
1996); Burton v. State, 230 S.W.3d 846, 850–52 (Tex. App.—Houston [14th Dist.] 2007, no
pet.); Karnes v. State, 127 S.W.3d 184, 193–94 (Tex. App.—Fort Worth 2003, pet. ref’d).
We review Cain’s contention under the standard Rule 403 factors: (1) the
probative value of the evidence; (2) the potential to impress the jury in some irrational, yet
indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for
it. See Colone, 573 S.W.3d at 266; Walter, 581 S.W.3d at 978. The evidence of the T-Mobile
Robbery was highly probative. It contained sufficient common characteristics with the Verizon
Robbery to suggest that Cain committed both. And it included Cain’s fingerprint on the dropped
T-Mobile phone box and his having given a stolen T-Mobile phone to a friend. The first
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factor therefore favors admissibility. See Johnson, 68 S.W.3d at 651–52; Chaparro v. State,
505 S.W.3d 111, 117–18 (Tex. App.—Amarillo 2016, no pet.); Burton, 230 S.W.3d at 850–52.
As for the potential of the evidence to impress the jury in an irrational, indelible
way, the evidence of the T-Mobile Robbery was no more inflammatory than, or fundamentally
different in character from, the charged Verizon Robbery. See, e.g., Taylor v. State, 920 S.W.2d
319, 323 (Tex. Crim. App. 1996) (observing that “the first murder, being no more heinous than
the second, was not likely to create such prejudice in the minds of the jury that it would have
been unable to limit its consideration of the evidence to its proper purpose”); see Regan v. State,
7 S.W.3d 813, 818 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (concluding that evidence
of extraneous robbery that made defendant’s identity as perpetrator of charged robbery more
probable because of shared modus operandi “did not have the potential to impress the jury in an
irrational way”). This second factor favors admissibility.
Concerning the time needed to develop the evidence, the State called several
witnesses, some of whom testified only about the charged Verizon Robbery, others who testified
only about the extraneous T-Mobile Robbery, and some whose testimony applied to both.
Considering all of the pages of the reporter’s record that involved T-Mobile Robbery testimony
only and the pages that involved that robbery from the witnesses whose testimony applied to
both robberies, it took the State roughly one-fourth of its case to put on the evidence of the
extraneous T-Mobile Robbery. We do not view that as an “inordinate” amount of time for this
case. See Caston v. State, 549 S.W.3d 601, 613 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
This factor therefore points in favor of admissibility.
As for the State’s need for the evidence, we note that the State was required to
prove Cain’s identity as the robber as an element of the charged offense and thus that the State’s
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need for probative evidence of identity was great. Further, Cain affirmatively contested his
identity as the robber, testifying that he was innocent and had the stolen phones only because a
now-dead person had given them to him, thereby highlighting the State’s need for evidence
probative of the robber’s identity. The evidence of the T-Mobile Robbery helped prove
Cain’s identity as the robber in the Verizon Robbery, rebutting his defense that he merely
possessed the stolen cellphones. The State needed evidence of the T-Mobile Robbery as identity
evidence in the face of Cain’s defense, see Karnes, 127 S.W.3d at 193–94, so the fourth factor
favors admissibility.
Given these factors, the trial court reasonably could have concluded that
the danger of unfair prejudice from admitting evidence about the T-Mobile Robbery did
not “substantially outweigh[],”Tex. R. Evid. 403, that evidence’s probative value. See Davis,
329 S.W.3d at 806; Walter, 581 S.W.3d at 978. The trial court thus did not abuse its discretion
by admitting evidence of the T-Mobile Robbery over the Rule 403 objection. See Chaparro,
505 S.W.3d at 117-118 (holding that trial court did not abuse its discretion by admitting evidence
of extraneous robberies over Rule 403 objection in part because all the robberies shared the
robber’s distinctive clothing, his carrying a shotgun and a large knife, and proximity in time and
place); Burton, 230 S.W.3d at 850–52 (holding that trial court did not abuse its discretion by
admitting evidence of extraneous robberies over Rule 403 objection in part because all the
robberies shared “that the banks all had no onsite security, the robbed tellers were young, and
the robber wore a hat and sunglasses and made the robbery demand initially with a note”). We
overrule Cain’s appellate issue as it relates to his Rule 403 complaint.
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CONCLUSION
We affirm the trial court’s judgment.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: May 5, 2021
Do Not Publish
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