Kenneth Allen Ross v. State ( 2015 )

ACCEPTED
01-14-00902-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/30/2015 1:55:26 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00902-CR
FILED IN
1st COURT OF APPEALS
In the HOUSTON, TEXAS
Court of Appeals 6/30/2015 1:55:26 PM
For the CHRISTOPHER A. PRINE
Clerk
First District of Texas
At Houston
♦
No. 1399343
In the 230th District Court
Of Harris County, Texas
♦
KENNETH ALLEN ROSS
Appellant
v.
THE STATE OF TEXAS
Appellee
♦
State’s Appellate Brief
♦
Clinton A. Morgan Devon Anderson
Assistant District Attorney District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net Sarah Roberts
Lisa Calligan
1201 Franklin St., Suite 600
Assistant District Attorneys
Houston, Texas 77006
Harris County, Texas
Telephone: 713.755.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no
particular reason why. The State believes that the briefs in this case
adequately apprise this Court of the issues and the law, and any
marginal benefit from oral argument does not justify the considerable
amount of time that preparation for oral argument requires of the
parties and the Court. The State does not request oral argument.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Sarah Roberts & Lisa Calligan
— Assistant District Attorneys at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Kenneth Allen Ross
Counsel for the Appellant:
Danny Easterling
— Counsel at trial
Mandy Miller
— Counsel on appeal
Trial Judges:
Brad Hart
 Presiding judges
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 3
Reply to Point One ................................................................................ 4
Strong modus-operandi evidence from two other robberies
committed by the appellant, combined with a tentative eyewitness
identification, are sufficient to allow a rational factfinder to find,
beyond a reasonable doubt, that the appellant committed a third
robbery that was introduced as an extraneous offense in the
punishment phase. ...................................................................................................... 4
I. Trial Proceedings ............................................................................................ 4
A. The June 21st Robbery .............................................................................. 4
B. The Appellant’s Request to Strike ....................................................... 6
C. The June 3rd Robbery ................................................................................ 8
II. Standard of Review: A trial court’s decision to admit evidence
of an extraneous offense in the punishment phase is reviewed only
for an abuse of discretion. .................................................................................... 9
III. Argument ........................................................................................................ 10
A. The evidence at trial was sufficient to show, beyond a
reasonable doubt, that the appellant committed the June 21st
robbery.................................................................................................................. 10
B. Even if the trial court erred, the repeated instructions to the
jury to disregard any extraneous offense not proven beyond a
reasonable doubt cured the error. ............................................................ 13
Conclusion .......................................................................................... 16
iii
Certificate of Compliance and Service ........................................... 17
Appendix:State’s Exhibits 28 & 57
iv
Index of Authorities
Cases
Apolinar v. State
106 S.W.3d 407 (Tex. App.—
Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App.
2005) .............................................................................................................................. 14
Colburn v. State
966 S.W.2d 511 (Tex. Crim. App. 1998) ........................................................... 14
Mart. v. State
173 S.W.3d 463 (Tex. Crim. App. 2005) ........................................................... 11
Page v. State
213 S.W.3d 332 (Tex. Crim. App. 2006) ........................................................... 10
Thompson v. State
4 S.W.3d 884 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d) .................................................................... 7
Statutes
TEX. CODE CRIM. PROC. art. 37.07................................................................................. 10
Rules
TEX. R. APP. P. 44.2 ........................................................................................................... 14
v
Statement of the Case
The appellant was indicted for aggravated robbery. (CR 25). The
indictment alleged two prior felony convictions, with one of the felonies
having been committed after the conviction for the other became final.
(CR 25). A jury found him guilty as charged. (CR 98, 113). The State
abandoned one of the enhancement allegations; the jury found the other
allegation true and assessed punishment at forty years’ confinement and
a $5,000 fine. (CR 111). The appellant filed a timely notice of appeal and
the trial court certified his right of appeal. (CR 116, 118).
Statement of Facts
On August 26, 2013, near closing time at a Family Dollar store in
west Houston, a man in a hoodie, a black cap, and black-framed glasses
approached a store employee, Jaymil Johnson, and asked where the air
fresheners were. (3 RR 23, 112; 4 RR 19). The man walked away from
Johnson, but rather than buying air fresheners he lingered in the store
past closing time. (3 RR 24). When Johnson next saw him, the man
brandished a pistol and instructed Johnson to “be cool” and not to make
any noise. (3 RR 24-25). The man walked Johnson to another aisle
where the other two store employees were, and then took all three
1
employees into the back of the store and had them set their cell phones
on a box. (3 RR 26-27; 4 RR 24-25).
The man forced two of the employees into a bathroom, but
instructed the store manager, Maheshkumar Desai, to take him to the
store’s safe. (3 RR 101-04). Desai did as instructed. (3 RR 104-05). After
Desai entered the combination, though, he informed the man that the
safe had a time delay and would not open for several minutes after the
combination was entered. (3 RR 105). The man then began talking to
someone on his cell phone, advising that the safe would take 10-15
minutes to open. (3 RR 106).
The man walked Desai to the back of the store, where he noticed
that one of the employees’ cell phones was no longer sitting on the box.
(3 RR 106). The man asked which of them had called the police, but no
one admitted to having done so. (3 RR 107). The man then took Desai
back to the front of the store where he had him empty the cash registers
into a plastic bag. (3 RR 107). The bag also contained some air
fresheners. (3 RR 107). The man forced the employees back into the
bathroom, and from there they heard the store alarm sound from the
opening of the emergency exit in the back of the store. (3 RR 108).
2
Houston Police Officer James Swank was dispatched to a report of
a robbery in progress at the Family Dollar. (3 RR 88-89). He was the
second officer to arrive on the scene; when he learned that the first
officer was in the front of the store, Swank went to the back. (3 RR 94).
He observed a man with a black hat and grey hoodie running away from
the store. (3 RR 96, 100). When Swank shone his spotlight on the man,
he dropped a cell phone and a plastic Family Dollar bag and immediately
sat down. (3 RR 98, 211). The plastic bag contained cash, rolls of coins,
and air fresheners. (3 RR 256-57). Next to the bag was a black
semiautomatic pistol. (3 RR 257). The man was identified as the
appellant. (3 RR 266). The appellant was taken back to the store and
Johnson identified him as the robber. (3 RR 274).
Summary of the Argument
The appellant raises no challenges to his conviction. His sole point
relates to evidence of an extraneous robbery that was admitted during
the punishment phase. He argues that the evidence was inadmissible
because the State did not prove the offense beyond a reasonable doubt.
The State believes that the similarities between that robbery, another
extraneous robbery, and the charged offense, combined with a tentative
3
eyewitness identification from the complained-of robbery is sufficient to
allow a finding, beyond a reasonable doubt, that the appellant
committed the complained-of robbery.
Reply to Point One
Strong modus-operandi evidence from two other robberies
committed by the appellant, combined with a tentative eyewitness
identification, are sufficient to allow a rational factfinder to find,
beyond a reasonable doubt, that the appellant committed a third
robbery that was introduced as an extraneous offense in the
punishment phase.
I. Trial Proceedings
A. The June 21st Robbery
In the punishment phase, the State called two witnesses to testify
about a robbery that occurred on June 21, 2013, at a Family Dollar store
in southwest Houston. Kierra Pipkin was a cashier working the closing
shift that night. (7 RR 34). The store closed at 10:00 pm, but the
employees had locked the doors early because no one was in the store.
(7 RR 36). At 9:40, a man beat on the doors until Pipkin let him in. (7 RR
36). He said he needed worm pills for his dog, but when Pipkin said they
did not sell those he asked for the baby wipes. (7 RR 36). Pipkin directed
the man to the baby wipes and then walked away to resume cleaning up
the store. (7 RR 36).
4
Sometime later, the man approached Pipkin and brandished a
revolver. (7 RR 38-39). The man directed Pipkin and the store’s assistant
manager, Shondria Laymond, to a different aisle and had them lie on the
ground. (7 RR 40). The man asked who the manager was, and when
Laymond spoke up he forced her to go open the door and let in a second
man. (7 RR 40-41). This second man was taller; he wore a dark cap with
a white symbol on it and glasses. (7 RR 41-42, 85-86; State’s Ex. 57). The
second man was also talking on the phone to someone named “Frank.”
(7 RR 43). After he entered the store, the second man brandished a
semiautomatic pistol. (7 RR 44). It was apparent that the second man
was in charge. (7 RR 45).
The second man asked Laymond what the code to the safe was,
but Laymond advised that the safe had a timer on it. (7 RR 46). Laymond
entered the code into the safe, and while they waited on it to open the
second man forced her to empty the cash registers into a plastic store
bag. (7 RR 71-73). Once the safe opened, he made Laymond empty it
into a store bag as well. (7 RR 73). The man also made her put several
boxes of cigarettes in the bags. (7 RR 72-73).
The robbers made the employees lay on the ground again, and
then asked where the back door was. (7 RR 73). The second man told
5
whoever he was talking with on the phone to drive around the back of
the store and pick them up. (7 RR 73-74). However, the person on the
other end of the phone advised that there were people behind the store,
so the robbers left through the front door. (7 RR 74-75). Before leaving,
they advised the employees to wait ten minutes before calling the police,
or else they would return and shoot them. (7 RR 75).
After the robbery, Laymond was shown a photo lineup; she said
that she was 70% sure that the second man in the robbery was the
appellant. (7 RR 85-86, 96, 111). At trial, the State introduced security
footage of the robbery, as well as a few screenshots taken from that
video. (State’s Exs. 57, 59).
B. The Appellant’s Request to Strike
After the State admitted all of its evidence regarding the June 21st
robbery, defense counsel approached the trial court and asked for the
jury to be instructed to disregard it. (7 RR 114-15). The appellant
argued that the State’s evidence was not sufficient to show, beyond a
reasonable doubt, that the appellant committed that robbery, and
therefore it was inadmissible in the punishment phase. (7 RR 114-15);
see Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st Dist.]
6
1999, pet. ref’d) (“The trial court must first determine that the evidence
is relevant and that the jury could reasonably find beyond a reasonable
doubt that the defendant committed the extraneous offense.”).
The State replied that, combined with Laymond’s 70%
identification, the similarities between the charged offense and the June
21st robbery would allow the jury to find that the appellant committed
both crimes. First, the State noted, the robber in both cases seemed to
be wearing a “similar hat” 1 in both robberies. (7 RR 115-16). Moreover,
the methods used in both robberies were strikingly similar:
[T]hat it is the Family Dollar, that it was closing time, that he
was on the cell phone. He knew about the safe, asking for
the manager, not touching anything. And … asking them to
go to the back door. Wanting to leave out of the back door,
but they just couldn’t in this specific situation. And the fact
that he was on the phone with another person apparently
outside the store.
(7 RR 116-17).
1 The cap recovered from the scene of the charged offense was admitted into
evidence as State’s Exhibit 28, and it is currently in the custody of the Harris County
District Clerk. The State’s appellate counsel went to the clerk’s office to view the cap.
In an appendix to this brief, the State’s appellate counsel has included a photograph
of the cap placed, for comparison purposes, next to screenshots of the second robber
in the June 21st robbery that were admitted as part of State’s Exhibit 57. The
distinctive kangaroo logo on the cap appears very similar to the logo on the cap
worn by the robber. The similarity is even stronger when the cap is compared to the
color surveillance video in State’s Exhibit 59.
7
The trial court was initially skeptical of the State’s argument and
signaled its intention to grant the appellant’s motion. (7 RR 119).
However, after taking a break the trial court announced that it would
deny the appellant’s motion but would verbally instruct the jury that it
could only consider evidence of the extraneous robbery if it the evidence
proved, beyond a reasonable doubt, that the appellant committed it. (7
RR 121-22; see CR 106 (providing same instruction in jury chare)).
C. The June 3rd Robbery
The next witness was Crespin Guerrero, who used to work at a
Dollar Tree in Webster. (7 RR 125). On June 3, 2013, Guerrero was the
assistant manager working the night shift. (7 RR 127). After locking the
store at closing time, Guerrero walked outside the store to put
something in his truck. (7 RR 127-28). He heard something behind him,
and when he turned around he saw a man holding a gun; the gunman
advised Guerrero not to run or he would shoot. (7 RR 128).
The gunman forced Guerrero to unlock the store and the two of
them went inside, along with a third person who was with the gunman
but who Guerrero did not get a good look at. (7 RR 129-30). Once in the
store, the gunman forced Guerrero and the other Dollar Tree employee
8
to go to the store’s office and open the safe. (7 RR 132). Guerrero
complied; this safe did not have a timer on it so he was able to open it
right away. (7 RR 133). The gunman made Guerrero pick up the money
and put it into a backpack. (7 RR 133-34). After that, the gunman made
Guerrero and the other employee get on the ground, and he sat their cell
phones outside of the office. (7 RR 134). The robbers then left. (7 RR
135).
Guerrero later identified the appellant as the gunman. (7 RR 142).
During the robbery, the appellant was wearing a gray hoodie, a black
cap, and glasses. (7 RR 130). Guerrero said that State’s Exhibit 28, the
cap recovered from the scene of the charged offense, was similar to the
hat the appellant wore during the robbery, and the gun recovered from
the scene of the charged offense was similar to the gun the appellant
used. (7 RR 140-41).
II. Standard of Review: A trial court’s decision to admit
evidence of an extraneous offense in the punishment
phase is reviewed only for an abuse of discretion.
In the punishment phase of a trial, the State may offer “evidence of
an extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant or for which he
9
could be held criminally responsible …” TEX. CODE CRIM. PROC. art.
37.07 § 3(a). Appellate courts do not review the evidence of an
extraneous offense for sufficiency; rather, the question on appeal is
whether the trial court abused its discretion in admitting the evidence.
Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). Though the State can find no case explicitly stating as
much, under this standard of review the relevant question on appeal is:
“Did the trial court abuse its discretion in determining that the evidence
was sufficient?”
III. Argument
A. The evidence at trial was sufficient to show, beyond a
reasonable doubt, that the appellant committed the
June 21st robbery.
The State’s argument (at trial and on appeal) involves applying the
“modus operandi” doctrine in an uncommon way. Typically, the way that
modus operandi arises is that the State will offer evidence of extraneous
offenses that were committed in distinctive ways in order to prove that
it was the defendant who committed the charged offense. See, e.g., Page
v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (discussing use of
extraneous offenses to prove identity). Here, however, because it is the
10
sufficiency of the evidence to prove the extraneous offense that is at
issue, the State’s argument uses the charged offense to prove identity. In
either case, the relevant question is whether the crimes are sufficiently
distinctive as to allow a conclusion that whoever committed one
committed the others. See Martin v. State, 173 S.W.3d 463, 468 (Tex.
Crim. App. 2005). The State believes that the similarities between the
June 21st robbery and the other two robberies, combined with
Laymond’s “70%” identification, support the trial court’s determination
that a rational factfinder could have concluded that the appellant
committed the June 21st robbery. See Davis v. State, 180 S.W.3d 277, 285
(Tex. App.—Texarkana 2005, no pet.) (considering modus operandi
evidence as part of sufficiency analysis).
The similarities between the robberies are striking:
• The three robberies occurred within a three-month period,
making it possible they were all committed by the same people.
All three occurred within Harris County.
• All three were of the same type of store: Two Family Dollar Stores
and a Dollar General.
• All three robberies occurred at or near closing time.
• All three robberies involved forcing the store manager to open the
store’s safe and place the money in a bag. In none of the robberies
did the robber himself touch the safe or the money.
11
• In all three robberies the relevant robber was described in similar
terms: A black man around or slightly shorter than six feet tall
with a large build wearing a dark cap and glasses. This robber was
always described as wielding a semiautomatic pistol.
• In two of the robberies (June 21st and August 26th) the relevant
robber was on a cell phone during the robbery communicating
with the presumed getaway driver.
• In two of the robberies (June 3rd and August 26th) the robber made
the victims give him their cell phones for a period of time, but he
did not steal them.
• In two of the robberies (June 21st and August 26th) the robber took
seemingly random items — air fresheners in one instance, and
cigarettes and baby wipes in the other.
• In two of the robberies (June 3rd and June 21st) there was an
accomplice present who was shorter than the relevant robber and
who was taking commands from the relevant robber.
• In the August 26th robbery the robber was described as wearing
glasses with black frames. Though it is not apparent in the black-
and-white screenshots of State’s Exhibit 57, in the color
surveillance footage of the June 21st robbery (State’s Exhibit 59),
the relevant robber clearly is wearing glasses with black frames.
• Additionally, comparing the color footage on State’s Exhibit 59 to
State’s Exhibit 28 (the cap) shows that the relevant robber in the
June 21st robbery wore a cap that was identical to the cap
recovered from the August 26th robbery. Specifically, on the
camera angle looking at the door, where the footage is
timestamped 21:49:17 and 21:49:18, the shape of a kangaroo, the
same as is on State’s Exhibit 28, is plainly visible on the robber’s
cap. (See also Appendix).
In sum, the State’s evidence showed that the appellant had a
penchant for robbing a certain type of store in a certain way while
12
wearing a certain type of attire. The witnesses to the June 21st robbery
described a man similar to the appellant committing a robbery at a
similar store as those the appellant like to rob in a manner similar to
how the appellant committed his robberies. One of the witnesses to the
June 21st robbery (who was not privy to the details of the other
robberies) picked out the appellant from a photo lineup and said she
was “70%” sure that he was one of the robbers. From the combined
logical force of these facts, the trial court was, at least, within the zone of
reasonable disagreement to conclude that a rational factfinder could
have found the appellant guilty of the June 21st robbery beyond a
reasonable doubt. Thus the trial court did not abuse its discretion in
declining to instruct the jury to disregard the evidence of that robbery.
B. Even if the trial court erred, the repeated
instructions to the jury to disregard any extraneous
offense not proven beyond a reasonable doubt cured
the error.
The erroneous admission of an extraneous offense in the
punishment phase of a trial is subject to the non-constitutional harm
test found in Rule of Appellate Procedure 44.2(b) and should not result
in reversal unless it had a substantial or injurious effect on the jury’s
verdict. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—Houston [1st
13
Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 2005); Roethel v.
State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.); see TEX. R.
APP. P. 44.2(b).
The jury in this case was twice instructed that it was not to
consider the evidence of extraneous offenses unless it believed, beyond
a reasonable doubt, that the appellant was criminally responsible for
them. (7 RR 121-22; CR 106). One of these instructions came
immediately after the State concluded its evidence of the June 21st
robbery, which should have made the point abundantly clear to the jury.
Appellate courts presume that juries follow the instructions as
given. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). That
presumption is rebuttable, but there is no evidence in this case
suggesting that the jury disregarded the instructions. Indeed,
disregarding the instructions in this case would involve the jury
increasing the appellant’s sentence for an offense it did not believe he
committed, which, even without an instruction, would be passingly
strange behavior.
The State’s punishment evidence, even excluding the June 21st
robbery, was strong enough to warrant the appellant’s punishment: The
evidence for the June 3rd robbery was quite strong, and the State
14
admitted evidence of numerous prior convictions, including one for a
robbery. (7 RR 202-04 (prosecutor summarizing prior convictions);
State’s Exs. 40-42; 45-56). Given the general nature of a punishment
verdict, the adequate evidence showing that the appellant deserved a
harsh punishment, and, most importantly, the trial court’s repeated
instructions to the jury not to use evidence of the June 21st robbery
unless it believed, beyond a reasonable doubt, that the appellant was
one of the robbers, there is no reason to believe that the June 21st
robbery had a substantial effect on the jury’s verdict if they did not
believe, beyond a reasonable doubt, that the appellant was one of the
robbers. Accordingly, any error by the trial court does not warrant
reversal.
15
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
16
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 3,320 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Mandy Miller
mandy@mandymillerlegal.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: June 30, 2015
17
Appendix:
State’s Exhibits 28 & 57