Jeffrey O'Neal Dodson A/K/A Jeffery ONeil Dodson v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-286-CR
JEFFREY O'NEAL DODSON A/K/A APPELLANT
JEFFERY ONEIL DODSON
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
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See Tex. R. App. P. 47.4.
Appellant Jeffrey O=Neal Dodson a/k/a Jeffery Oneil Dodson appeals his
conviction for capital murder. In one point, Dodson argues that the trial court
abused its discretion by admitting extraneous offense evidence during the
guilt-innocence phase of trial in violation of rules 403 and 404(b). See Tex. R.
Evid. 403, 404(b). We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2007, at approximately 4:00 p.m., Dodson; his brother,
Theodis Dodson; and their cousin, Fredrick Hughs, went to the D&S Food Mart
in Bedford, Texas. Dodson and Theodis went into the store, while Hughs
stayed outside in Dodson=s Suburban. Gaurab Rajbanshi, the store=s clerk,
was working that day. While in the store, Dodson and Theodis got a beer out
of the cooler, waited for the only customer in the store to leave, and then went
to the cash register to pay. At that point, Dodson pulled out a gun and shot
Rajbanshi, who immediately fell to the ground. One of the two men then
jumped over the counter and began stomping on the cash register to get it to
open. Rajbanshi died at the scene.
Shortly after the robbery and murder, the Bedford police, who had
released the videotape surveillance of the robbery to the news media, received
a tip that Hughs and Theodis were the individuals depicted on the surveillance
tape. As a result of the tip, Hughs was arrested. Hughs told the police that
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Dodson and Theodis went into the D&S Food Mart, that Dodson shot
Rajbanshi, and that Hughs waited outside the store in Dodson=s Suburban.
Hughs eventually led police to the gun, a .380 caliber semiautomatic handgun,
which was in a field close to the apartment where Dodson was staying after the
robbery. Additionally, the police located ammunition approximately fifty feet
from the apartment.
Testing confirmed that the gun found near the apartment was the same
gun used in the robbery and murder. Ronald Singer, the crime laboratory
director for the Tarrant County Medical Examiner=s Office, testified that the
shell casing found at the scene and the bullet fragment taken from Rajbanshi=s
head during the autopsy were fired from the gun found in the field at the
apartment.
Dodson was indicted for capital murder. He pleaded not guilty to the
charge, and the case went to trial. After finding Dodson guilty of the offense,
the jury sentenced him to life imprisonment without the possibility of parole.
This appeal followed.
III. EXTRANEOUS OFFENSE EVIDENCE
In Dodson=s only point, he argues that the trial court abused its discretion
by admitting at the guilt-innocence phase of trial extraneous offense evidence
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of a robbery that occurred on June 4, 2007, at a convenience store in
Watauga. See Tex. R. Evid. 403, 404(b).
A. Standard of Review
When reviewing a trial court=s decision to admit extraneous offense
evidence under rule 404(b), or over a rule 403 objection, an appellate court
applies an abuse-of-discretion standard. See De La Paz v. State, 279 S.W.3d
336, 343 (Tex. Crim. App. 2009). A trial court abuses its discretion only
when its decision lies outside Athe >zone of reasonable disagreement.=@ Id. at
343B44.
B. Rule 404(b)
The general rule is that the defendant is to be tried only for the offense
charged, not for any other crimes or for being a criminal generally. Segundo v.
State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008); Crank v. State, 761
S.W.2d 328, 341 (Tex. Crim. App. 1988). Evidence of extraneous acts of
misconduct may be admissible if (1) the uncharged act is relevant to a material
issue in the case and (2) the probative value of that evidence is not significantly
outweighed by its prejudicial effect. Segundo, 270 S.W.3d at 87.
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AEvidence of other crimes, wrongs or acts@ may not be admitted during
the guilt-innocence phase of trial Ato prove the character of a person in order to
show action in conformity therewith.@ Tex. R. Evid. 404(b); Marc v. State,
166 S.W.3d 767, 775 (Tex. App.CFort Worth 2005, pet. ref=d). Such
evidence of extraneous offenses may be admitted to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Tex. R. Evid. 404(b). The court of criminal appeals has
explained, A>Rule 404(b) is a rule of inclusion rather than exclusion.= The rule
excludes only that evidence that is offered (or will be used) solely for the
purpose of proving bad character and hence conduct in conformity with that
bad character.@ De La Paz, 279 S.W.3d at 343 (footnotes omitted). The
State, as the proponent of extraneous offense evidence, bears the burden of
showing admissibility. Russell v. State, 113 S.W.3d 530, 535 (Tex.
App.CFort Worth 2003, pet. ref=d); Rankin v. State, 974 S.W.2d 707, 718
(Tex. Crim. App. 1998) (op. on reh=g). Extraneous offense evidence may also
be admissible to rebut a defensive theory. Moses v. State, 105 S.W.3d 622,
626 (Tex. Crim. App. 2003).
The State asserts that the extraneous offense evidence was relevant to
establish Dodson=s identity because Dodson repeatedly raised the issue of his
identity as one of the robbers during the trial.
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One of the main rationales for admitting extraneous offense evidence is
to prove the identity of the offender. Segundo, 270 S.W.3d at 88; Castillo v.
State, 739 S.W.2d 280, 289 (Tex. Crim. App. 1987). An extraneous offense
may be admissible to show identity only if identity is at issue in the case. Page
v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). The trial judge has
considerable latitude in determining that identity is, in fact, disputed. Id.
Identity may be placed in dispute by cross-examination as well as by
affirmative evidence offered by the defense. Id.
The theory behind admitting extraneous offense evidence to prove
identity is usually that the pattern and characteristics of the charged crime and
the extraneous offense evidence are so distinctively similar that they constitute
a A>signature.=@ Segundo, 270 S.W.3d at 88; Beets v. State, 767 S.W.2d 711,
740B41 (Tex. Crim. App. 1988) (op. on reh=g). 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; Taylor v. State,
920 S.W.2d 319, 322 (Tex. Crim. App. 1996). However, if the similarities
are A>generic,=@ i.e., they are typical to this type of crime, they will not
constitute a A>signature=@ crime. Segundo, 270 S.W.3d at 88 (footnote
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omitted); Curtis v. State, 89 S.W.3d 163, 172B74 (Tex. App.CFort Worth
2002, pet. ref=d).
Here, Dodson concedes in his brief that the only issue at trial was
whether he was the killer depicted on the surveillance tape. Additionally,
Dodson placed identity in issue during his cross-examination of Dr. Gary Sisler,
deputy medical examiner for Tarrant County. During his cross-examination,
Dodson questioned Dr. Sisler on whether an individual who had suffered a
ruptured intestine and undergone surgery, which was the case for Dodson,
would be able to jump over a counter a few weeks after the operation.
Because identity was placed in issue, we must compare the circumstances of
the charged offense and the extraneous offense to determine if they were
sufficiently similar to make the extraneous offense admissible to prove identity.
See Segundo, 270 S.W.3d at 88.
On June 4, 2007, at approximately 10:00 p.m., Kamal Luitel was
working as a cashier at the One Stop Pantry in Watauga, Texas, when he saw
two men, whom he later identified as Dodson and Theodis, walk into the
store.2 When Dodson and Theodis brought their beers to the cash register,
2
At trial, Luitel testified that when shown the photo lineups, he told the
police Amaybe this guy, maybe this person, but maybe -- I=m not sure.@
However, Sergeant Steve Hickman, with the Watauga Police Department,
testified that Luitel identified both Dodson and Theodis out of photo lineups,
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Luitel asked them if they were going to pay separately or together, and they
replied that they were going to pay separately.
within ten seconds of viewing them, as the people who robbed him.
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Luitel stated that one of the men then gave him a dollar to pay for his
beer. Luitel testified that when he went to open the cash register, one of the
men jumped over the counter and hit him in the head with a gun. Luitel
suffered a laceration to the head, which required five stitches, and he suffered
pain in two fingers, which was the result of him shielding his face from being
hit with the gun. Dodson contends that the similarities between the two
crimes are Aso random and illogical that it strains credulity to label these
offenses as >signature offenses.=@
A comparison of the charged offense and extraneous offense, however,
shows a high degree of similarity. Both offenses, which were committed a
week apart, occurred in convenience stores when only one person was
working, and no other customers were in the store. In both cases, Dodson
and Theodis, who were wearing hats, pretended to purchase beer so that the
clerk would open the cash register. Additionally, after attacking the clerk with
a gun, one of the men would jump over the counter to get money out of the
register.
Further, the same gun was used during the commission of both offenses.
Ballistics tests confirmed that the gun that was found in the field fired the bullet
that killed Rajbanshi. When testing that same gun, the magazine was
swabbed, and after testing, it was confirmed that it had Luitel=s DNA on it.
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Additionally, testing of Dodson=s tennis shoes showed a DNA profile on the
right shoelace that matched Luitel=s DNA profile.
We hold that the trial court did not abuse its discretion by admitting the
extraneous offense for the permissible purpose of proving Dodson=s identity.
See Tex. R. Evid. 404(b). We must now turn to a rule 403 balancing test.
See Tex. R. Evid. 403.
C. Rule 403
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence. Id.
Once a rule 403 objection is made, the trial court must weigh the
probative value of the evidence to determine if it is substantially outweighed by
its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169
(Tex. Crim. App. 1997). A rule 403 balancing test includes the following
factors: (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent=s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any tendency of
the evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been
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equipped to evaluate the probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d
637, 641B42 & n.8 (Tex. Crim. App. 2006).3
1. Probative Value and Need
The trial court could have concluded that the extraneous offense
evidence was highly probative to show Dodson=s identity as one of the
perpetrators in the D&S Food Mart robbery and murder of Rajbanshi. Ballistics
tests confirmed that the same gun was used in the One Stop Pantry robbery
and the D&S Food Mart robbery and murder, and Luitel=s DNA was found on
Dodson=s shoelace and the gun magazine. This evidence aids the
identification of Dodson in the D&S Food Mart robbery. Additionally, the
record supports a finding that the State had a significant need for the
extraneous offense evidence.
2. Unfair Prejudice
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Although Dodson, the State, and the trial court rely on the rule 403
factors set out in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App.
1990) (op. on reh=g), we recognize that the court of criminal appeals expanded
on the factors in Gigliobianco. 210 S.W.3d at 641B42. Accordingly, our rule
403 analysis will involve the Gigliobianco factors.
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The trial court could have reasonably determined that the extraneous
offense evidence did not have a tendency to suggest a decision on an improper
basis. Although the extraneous evidence had the potential to evoke an
emotional response in the jury, it is clear from the record that the State
introduced the evidence to explain Dodson=s identity as one of the assailants.
Additionally, the trial court instructed the jury that it could only consider the
extraneous offense evidence Ain determining the proof of intent, preparation,
knowledge, identity, or existence of conspirator relationship between Theodis
and Jeffrey Dodson, if any, in connection with the crime alleged in the
indictment in this case, and for no other purpose.@
3. Confusion of the Issues
Here, the testimony of the State=s witnesses about the D&S Food Mart
robbery and murder of Rajbanshi trial lasted three days. The State called
nineteen witnesses, and only four of them testified about the One Stop Pantry
robbery. Dodson argues that the State Adevoted a considerable amount of
time and effort in developing evidence of the extraneous offense,@ citing the
fact that the testimony occupied the entire last day of the State=s case-in-chief.
However, the record reflects that the State=s presentation of the extraneous
offense evidence consumed only approximately two hours forty-nine minutes,
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including the trial court=s jury instruction and Dodson=s cross-examination of
the witnesses, of the three-day trial.
Additionally, the trial court reasonably could have concluded that the
extraneous offense evidence assisted the jury in understanding Dodson=s
identity as one of the robbers in the D&S Food Mart robbery. Accordingly, the
trial court could have reasonably concluded that the extraneous offense
evidence did not have a tendency to confuse or distract the jury from the main
issues in the case.
4. Misleading the Jury
The State=s evidence regarding the D&S Food Mart robbery and murder
was more detailed than the extraneous offense evidence. Additionally, the
D&S Food Mart robbery was the focus of the State=s case. Although the State
presented evidence of the extraneous offense, it did not suggest that the
evidence could be used to convict Dodson for the offense of capital murder.
The extraneous offense evidence was presented in a fashion to prove Dodson=s
participation in the D&S Food Mart robbery and murder. Accordingly, the trial
court could have reasonably concluded that the extraneous offense evidence
did not have a tendency to be given undue weight by a jury that was not
equipped to evaluate the probative force of the evidence.
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5. Undue Delay and Needless Presentation of Cumulative
Evidence
As stated above, although the testimony of the State=s witnesses lasted
three days, less than a total of three hours was spent by the prosecutor
presenting evidence, the trial court instructing the jury, and the defense
cross-examining the witnesses concerning the extraneous offense. As such,
the trial court could have reasonably concluded that the presentation of the
extraneous offense evidence would not consume an inordinate amount of time.
Additionally, the trial court could have determined that the extraneous offense
evidence was not cumulative of other evidence presented at trial.
After balancing the rule 403 factors, we conclude that the trial court
could have reasonably determined that the probative value of the extraneous
offense evidence was not substantially outweighed by the countervailing
factors specified in the rule. See Tex. R. Evid. 403.
We hold that the trial court did not abuse its discretion by admitting the
extraneous offense evidence. See Tex. R. Evid. 403, 404(b). Accordingly,
we overrule Dodson=s sole point.
IV. CONCLUSION
Having overruled Dodson=s sole point, we affirm the trial court=s
judgment.
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BILL MEIER
JUSTICE
PANEL: MCCOY and MEIER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 22, 2010
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