Donte Jerome Alexander v. State ( 2018 )

Affirmed and Memorandum Opinion filed November 13, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00392-CR
NO. 14-17-00393-CR
DONTE JEROME ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 1545992 & 1545993
MEMORANDUM OPINION
A jury found appellant guilty as charged of the aggravated robbery of Jessica
Hurwitz1 and the aggravated kidnapping of Russell Guajardo.2 The jury sentenced
appellant to confinement for fifty-five years and twenty years, respectively. The
1
Trial court cause number 154992; Appeal Number 14-17-00392-CR.
2
Trial court cause number 154992; Appeal Number 14-17-00393-CR.
sentences were ordered to run concurrently. Appellant timely filed a notice of appeal
in both cases. He raises five issues complaining of the sufficiency of the evidence
and the erroneous admission of evidence. We affirm.
FACTUAL BACKGROUND
Both offenses in this case arose from a plan to rob Oscar Cabrera-Lopez, a
drug dealer.3 The plan was executed by three men. One of the men, Joshua Smith,
was known to Guajardo because they were high-school classmates. The other two
men were eventually identified as Jeffery Jenkins, also known as “Fifi,” and
appellant. During the effort to rob Cabrera-Lopez, Hurwitz’s keys were taken and
Guajardo was held at gunpoint. Guajardo made a pre-trial and in-court identification
of appellant. Appellant’s defense was misidentification. To prove the identity of
appellant as the third man involved in the Cabrera-Lopez robbery, evidence of a
subsequent robbery of another drug dealer, Deandre Blacklock, was admitted into
evidence. Blacklock was robbed by three men and one of them, Smith, was shot and
killed. The challenges on appeal pertain to the theft of Hurwitz’s car keys and the
admission of text messages from Smith’s cell phone, the pre-trial and in-court
identification of appellant by Guajardo, and the extraneous offense—the Blacklock
robbery. Before considering appellant’s complaints, we set forth the evidence
relevant to his issues.
THE EVIDENCE
Guajardo testified that on February 4, 2013, he talked to Smith, a friend in his
class at school, about procuring marijuana for Smith. The plan was for Guajardo to
take Smith to the “plug,” the person with the marijuana. Smith had Guajardo’s phone
number, which ended in 5582, and they arranged to meet after school. When they
3
The robbery of a drug dealer is commonly called a “drug rip.”
2
met, Guajardo walked up to a vehicle, which he described as a small black SUV.
Two males Guajardo did not know were in the front seat of the vehicle. Both men
had pistols and one of them ordered Guajardo to get in the vehicle. Smith was in the
backseat and did not have a gun. Guajardo entered the vehicle and sat behind the
driver’s seat. In court, Guajardo identified appellant as one the two men in the front
seat of the vehicle.
Guajardo sent the plug, Cabrera-Lopez, a text and they drove to an apartment
complex on Woodchase. Once there, Guajardo refused to tell the men where
Cabrera-Lopez lived but he called Cabrera-Lopez and told him to come outside.
Guajardo testified that Cabrera-Lopez came up to the vehicle that he was in and,
after that, all Guajardo saw was Cabrera-Lopez running away. The vehicle then went
forward a little bit and stopped. The people in the front seat got out and ran to another
car. Guajardo was left alone in the car with Smith. Guajardo tried to open the door
but could not and testified that he was locked in the vehicle. Guajardo hit Smith in
the face but then the other two men came back; they were gone about two seconds.
Guajardo was driven back to a location near where he had been picked up.
According to Guajardo, he cooperated to try and “get out of the situation” but
was not part of the plan to rob Cabrera-Lopez. Guajardo testified that the men who
tried to rob Cabrera-Lopez threatened to kill him and cut off his ears; stuck a gun
“far down” his throat; put a gun to his head; pointed a gun at his chest; said they
were going to kill him; and hit him in the head with a gun. Guajardo did not initially
call the police because he did not want to “get busted” for selling marijuana.
Guajardo called the police about two days later.
Jessica Hurwitz testified that she was at an apartment on Woodchase along
with Cabrera-Lopez and two other females, Ashley and Nubia. The four of them left
the apartment; Cabrera-Lopez was going to meet Guajardo to sell him marijuana.
3
Hurwitz went to her car with Ashley and Nubia; Hurwitz got in the driver’s seat
while Ashley and Nubia got in the backseat. Cabrera-Lopez walked in the direction
of a vehicle parked behind Hurwitz’s car.
Hurwitz testified that Cabrera-Lopez suddenly got in the passenger seat and
told her to hurry up and reverse. Hurwitz put the car in reverse but a man was
standing next to her and there was a gun in her face. The man opened the door and
told Hurwitz that he was a police officer and she was under arrest. When Hurwitz
asked, “for what,” he would not answer. The man told her to park the car and take
the keys out of the ignition. He then reached across her, gun still to her head, and
took the keys. The man then ordered Cabrera-Lopez out of the car. Cabrera-Lopez
took off and the man ran after him. The man kept Hurwitz’s car keys. Hurwitz was
unable to identify the man. After Hurwitz got out of her car, she saw the other vehicle
was gone. Hurwitz called the police but did not tell the officer about Cabrera-Lopez.
Cabrera-Lopez testified that Guajardo called and asked him for two ounces of
marijuana. Cabrera-Lopez put the marijuana in his backpack and left the apartment
with Ashley, Nubia and Hurwitz. Cabrera-Lopez approached a vehicle, which he
described as a dark green SUV, in the parking lot while the others entered Hurwitz’s
vehicle. Cabrera-Lopez saw Guajardo in the middle of the back seat with a gun to
his head. Two men exited the vehicle — one from the driver’s side and one from the
passenger’s side. The third man remained in the backseat with Guajardo. The men
told Cabrera-Lopez that he was under arrest and to get on the ground. Both men had
guns and Cabrera-Lopez suspected they were not police. Cabrera-Lopez ran to
Hurwitz’s car, dropping the backpack as he ran, and entered the vehicle on the
passenger’s side. Cabrera-Lopez told Hurwitz to put the vehicle in reverse but before
she could, a man was next to her door and there was a gun in her face. The man said
he was a police officer, to get out of the car, and she was under arrest. The man told
4
Hurwitz to park the car and take the keys out of the ignition. He reached across her,
gun still to her head, and took the keys. The other man opened Cabrera-Lopez’s car
and pointed a gun at him. The men told Cabrera-Lopez to get out and get on the
ground. Cabrera-Lopez looked at Hurwitz, she nodded, he got out, put his hands up,
and ran. The man on Hurwitz’s side of the vehicle ran after Cabrera-Lopez. Cabrera-
Lopez continued running and “didn’t look back.” Cabrera-Lopez called the police
and reported seeing “a car with some girls” and “some guys with guns pointed at
them.” Cabrera-Lopez did not disclose his involvement. When the police called
Cabrera-Lopez three or four days after the incident, he denied there had been a drug
deal. Cabrera-Lopez testified the two men were wearing hoodies and were African-
American with dark complexions but he was unable to make an identification.
Officer Michael Ybanez of the Houston Police Department investigated both
the aggravated kidnapping of Guajardo and the aggravated robbery of Hurwitz.
Guajardo said he was there to meet Smith and Cabrera-Lopez and admitted the
meeting was for a narcotics transaction. Guajardo said two other men were involved.
When Ybanez showed a photospread to Guajardo, he tentatively identified appellant.
In court, Guajardo positively identified appellant as the person who held him at
gunpoint. A suspect for the third man was developed, Jeffery Jenkins, nicknamed
Fifi. No other suspects were developed in this case.
Ybanez spoke with Smith and kept his cell phone as possible evidence.
Ybanez obtained a search warrant for Smith’s phone and was able to review it. Some
of the text messages retrieved from Smith’s phone were admitted into evidence.
EXTRANEOUS-OFFENSE EVIDENCE
Approximately seven weeks later, on March 24, 2013, another drug dealer,
Deandre Blacklock, was robbed. Blacklock testified that Smith called him wanting
to buy a large quantity of marijuana. Blacklock went to meet Smith in the parking
5
lot and saw a small black SUV. When Blacklock approached, he saw three males.
The driver, Smith, said to get in the back and Blacklock got in the passenger seat
behind the driver. Smith and appellant pulled out a gun. Appellant said to kill
Blacklock and Smith agreed and began driving away. When Blacklock saw appellant
look away for a second, Blacklock hit him and reached for the gun. They struggled
for the gun. Blacklock tried to get out but the door would not open; he concluded the
child-safety lock was on. The gun went off in the struggle. Appellant told Smith to
stop the car and he did. Blacklock was able to open appellant’s door and fell out of
the vehicle, directly on the back of his head. When Blacklock was out of the car, he
let go of the gun, got up, and ran around the back of the vehicle. Smith began firing
at Blacklock, hitting him in the shoulder. Blacklock got away.
Blacklock was shown a photographic lineup after leaving the hospital and
identified appellant. In court, Blacklock identified the man in the back seat with him
as appellant. Blacklock testified that appellant had gained weight but Blacklock
remembered his eyes.
Sergeant Mohamad Khan of the Houston Police Department investigated the
Blacklock case. It occurred on Creekbend, within six miles of the robbery and
kidnapping on Woodchase. The first suspect developed in the Blacklock case was
Smith. Khan spoke with Ybanez, who had developed appellant and Jenkins as
suspects in the Woodchase case. Khan identified appellant in court as one of
Ybanez’s suspects. Khan also was looking for two men in addition to Smith. Khan
arranged for Blacklock to be shown a photographic lineup and Blacklock identified
appellant.
Khan interviewed appellant about the Creekbend robbery. Appellant said he
was not there but was in the back of a vehicle that was fired at in a drive-by shooting.
Khan confronted appellant with the fact that a gun went off inside the vehicle and
6
appellant changed his story to agree that the shot was fired inside the vehicle.
Appellant eventually admitted that he was at the scene of the offense on Creekbend.
Appellant said another man got in the vehicle with him, a black male that Khan
assumed to be Blacklock, but appellant did not know his name. According to
appellant, they were engaged in a drug transaction. Appellant identified the driver
as “Fifi,” whose real name was Jeffery Jenkins. Jenkins told Blacklock to get in the
vehicle and Blacklock did, in the seat behind Smith and next to appellant. According
to appellant, Blacklock pulled a weapon on appellant, put it to appellant’s right side,
and attempted to rob appellant, Smith, and Jenkins.
Having set forth the evidence pertinent to appellant’s claims, we now
determine appellant’s complaints on appeal. We address the sufficiency of the
evidence before turning to the admission of evidence.
SUFFICIENCY OF THE EVIDENCE
We initially consider appellant’s third issue claiming the evidence is legally
insufficient to support his conviction for aggravated robbery because, if sustained, it
would afford the greatest relief. See Tex. R. App. P. 43.3; Campbell v. State, 125
S.W.3d 1, 4 n.1 (Tex. App.–Houston [14th Dist.] 2002, no pet.) (stating reviewing
court should first address complaints that would afford the greatest relief). When
reviewing the sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011); see also Jackson v. Virginia, 443 U.S. 307, 318–19, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The jury is the exclusive judge of the credibility
of the witnesses and the weight to be given to the evidence. See Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the jury’s
7
responsibility to fairly resolve conflicts in testimony, weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Id. This standard
applies to both circumstantial and direct evidence. Id. We do not engage in a second
evaluation of the weight and credibility of the evidence, but only ensure the jury
reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.
1993).
A person commits robbery if, in the course of committing theft and with the
intent to obtain or maintain control of property, he intentionally, knowingly, or
recklessly causes bodily injury to another or intentionally or knowingly threatens or
places another in fear of imminent bodily injury or death. Tex. Penal Code
§ 29.02(a). A person commits aggravated robbery if he uses or exhibits a deadly
weapon during a robbery. Tex. Penal Code § 29.03(a)(2).
The only element of the offense of aggravated robbery that appellant
challenges is that the theft was committed with the intent to obtain or maintain
control of property. Appellant argues the State failed to prove appellant, either as a
principal or a party,4 acted with that intent5 because the evidence shows the intent
was to prevent Cabrera-Lopez from leaving, not to steal Hurwitz’s property. The
jury may infer the requisite intent from a defendant’s acts or conduct. See Guevara
v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Modarresi v. State, 488 S.W.3d
455, 463 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The jury heard testimony
4
A person is criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, the person solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal
Code § 7.02(a)(2).
5
A person acts intentionally or with intent, with respect to a result of his conduct when it
is his conscious objective or desire to cause the result. Tex. Penal Code § 6.03(a). A person acts
knowingly, or with knowledge, when he is aware of the nature of his conduct, that the
circumstances exist, or that his conduct is reasonably certain to cause the result. Tex. Penal Code
§ 6.03(b).
8
that one of the men pointed a gun at Hurwitz and ordered her to put the car in park
and take the keys from the ignition. The man then took the keys to Hurwitz’s car and
kept them. Clearly, the keys were taken to obtain control over them. The reason why,
ostensibly to prevent Hurwitz from driving away and thereby stop Cabrera-Lopez
from escaping, does not preclude the jury from finding the keys were taken
intentionally or knowingly. We overrule appellant’s third issue.
ADMISSION OF EVIDENCE
In his remaining issues, appellant complains of the admission of evidence. We
address, in turn, the admission of (1) the text messages from Smith’s cell phone;
(2) the pre-trial and in-court identification of appellant by Guajardo; and (3) the
extraneous offense committed against Blacklock.
Text Messages
Appellant’s first issue contends the trial court abused its discretion in
admitting into evidence text messages from Smith’s cell phone that purported to
incriminate appellant in the planning of the offense. Appellant makes two arguments
in support of his contention. First, appellant claims the text messages were not
authenticated. Second, appellant asserts the text messages were hearsay and not
admissible under any exception to the hearsay rule.
Standard of Review
We review a trial court’s decision on the admissibility of evidence under an
abuse-of-discretion standard and will affirm if the decision is within the zone of
reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). A trial court does not abuse its discretion unless its decision is outside the
zone of reasonable disagreement. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.
App. 2012). There is no abuse of discretion if the trial court “reasonably believes
9
that a reasonable juror could find that the evidence has been authenticated or
identified.” Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).
Authentication
Appellant argues the State failed to authenticate the messages, which were
sent by someone listed as “Monke” in Smith’s cell phone. Appellant asserts there
was no evidence “Monke” is appellant, other than Ybanez’s supposition, and no
other evidence linked appellant to the messages.
At a hearing held outside the jury’s presence, Ybanez testified that Smith did
not identify appellant as being involved with this case but said he was with a man
named “Gorilla.” When Ybanez reviewed the data on Smith’s phone, he saw text
messages between Smith and other people that Ybanez believed were co-
conspirators. The names Ybanez believed were involved were “Monke,” “Desmo,”
and “Big Sis.”6 There were no numbers in Smith’s phone for a person known as
“Gorilla” but Ybanez believed “Monke” was short for “monkey” and that Smith was
lying and trying to mislead him by using “the same monikers.” Ybanez stated that
when he called appellant “Monke,” appellant responded as if that was his name.
Ybanez identified appellant in-court as the person he called “Monke.” Also, the
number appellant gave Ybanez as his cell phone number was 832-881-0993, the
same number attributed to “Monke” in Smith’s phone.
Appellant contends there was no evidence that “Monke” referred to him and
the number listed in Smith’s phone was not the same number associated with
appellant. Appellant claims the only evidence linking him to the text messages is his
own statement that his phone number is 832-881-0993. The first text message
admitted into evidence that was sent to “Monke” is from Smith and was sent to 832-
6
Ybanez was unable to determine the identify of “Big Sis” or “Desmo.”
10
881-0903. There was no reply from that number. The next message Smith sent to
“Monke” was to 832-881-0993. There was an immediate reply to that message and
an exchange of several messages between Smith and “Monke” at the number
appellant told Ybanez was his phone number.
Authentication is a condition precedent to admissibility. Tex. R. Evid. 901(a).
A proponent of evidence satisfies its burden to establish the authenticity of the
evidence if the proponent produces “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Id. Rule 901(b) provides a list of
non-exclusive methods for authenticating evidence, one of which is “testimony of a
witness with knowledge” that the item in question is what it is claimed to be. Id.
901(b). The trial court’s function as gate-keeper is to decide simply whether the
proponent has supplied sufficient facts to support a reasonable determination by the
jury that the proffered evidence is what the proponent claims. Tienda v. State, 358
S.W.3d 633, 638 (Tex. Crim. App. 2012). In this case, then, the question is whether
the State supplied sufficient facts from which a jury could reasonably determine the
text messages on Smith’s phone to and from the number 832-881-0993 were to and
from appellant.
We agree with appellant that more is required to authenticate the text
messages than a mere association between the phone number and the purported
author and/or recipient of text messages. See Butler v. State, 459 S.W.3d 595, 601
(Tex. Crim. App. 2015). Here, however, appellant responded to the same nickname
assigned to that phone number in Smith’s phone and gave Ybanez that number when
asked for his phone number. Also, contrary to appellant’s claim that there was no
evidence other than Ybanez’s theory that appellant was known as “Monke,” a friend
of appellant’s, Kierre Maxwell, testified that “Monke” was appellant’s nickname.
Further, the text messages between Smith and “Monke” reflect a robbery was
11
planned for that day, February 4, 2013. Later that same day, Smith exchanged
messages with Guajardo, arranging to meet. Guajardo was then held at gunpoint
when Smith and two other men, one of whom Guajardo identified as appellant, tried
to rob Cabrera-Lopez. Following the robbery, there are text messages on Smith’s
phone reflecting they did not get any money. The evidence adduced at trial reflects
the only property stolen was Hurwitz’s car keys.
A proponent must only produce sufficient evidence from which a reasonable
fact-finder could properly find genuineness and need not prove beyond any doubt
that the evidence is what it purports to be. Campbell v. State, 382 S.W.3d 545, 549
(Tex. App.—Austin 2012, no pet.); see also Cook v. State, 460 S.W.3d 703, 712
(Tex. App.—Eastland 2015, no pet.); Manuel v. State, 357 S.W.3d 66, 74 (Tex.
App.—Tyler 2011, pet. ref’d). Maxwell and Ybanez’s testimony and the events
surrounding the text messages indicate circumstantially that appellant was the author
of the text messages from “Monke” and the intended recipient of the text messages
from Smith to “Monke.” Thus the “peculiar facts” of this case provide a sufficient
to support a reasonable determination that the text messages were authentic. See
Tienda, 358 S.W.3d at 641.
Hearsay
Appellant claims that even if the text messages were authenticated, they are
inadmissible because they are hearsay. Appellant asserts there is no exception to the
hearsay rule that would allow admission of the messages.
Hearsay is a statement, other than one made by the defendant while testifying
at trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.
R. Evid. 801(d). At trial the State argued the statements were admissible because
they were made by a co-conspirator to others in the conspiracy and statements by
any co-conspirator are admissible at trial of any other co-conspirator. Appellant
12
contends there is no hearsay exception that would support admission of the text
messages and again asserts there was no reliable evidence that he was the receiver
and sender of the texts. On appeal, the State re-urges its’ argument that the text
messages were admissible under the co-conspirator rule. Appellant makes no
argument to the contrary.
Under rule of evidence 801(e)(2)(E), a statement is not hearsay if it is offered
against a party and is a statement made by a co-conspirator “during the course and
in furtherance of the conspiracy.” Tex. R. Evid. 801(e)(2)(E). Under the co-
conspirator rule, a trial court has discretion to determine the admissibility of
statements. Legate v. State, 52 S.W.3d 797, 803 (Tex. App.—San Antonio 2001, pet.
ref’d). Statements are made in furtherance of a conspiracy if they are made (1) with
intent to induce another to deal with co-conspirators or in any other way to cooperate
with or assist co-conspirators, (2) with intent to induce another to join the
conspiracy, (3) in formulating future strategies of concealment to benefit the
conspiracy, (4) with intent to induce continued involvement in the conspiracy, or (5)
for the purpose of identifying the role of one conspirator to another. Lee v. State, 21
S.W.3d 532, 538 (Tex. App.—Tyler 2000, pet. ref’d) (citing Fairow v. State, 920
S.W.2d 357, 362 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 943 S.W.2d 895
(Tex. Crim. App. 1997)).
The text messages in question were clearly made by co-conspirators with
intent to cooperate with or assist in furtherance of their plan to commit robbery.
Accordingly, they are not hearsay. See King v. State, 189 S.W.3d 347, 359–60 (Tex.
App.—Fort Worth 2006, no pet.). We therefore conclude that the trial court did not
abuse its discretion by admitting the text messages. Appellant’s first issue is
overruled.
13
Pre-trial and In-court Identification
Appellant’s second issue contends the trial court abused its discretion in
failing to suppress Guajardo’s pre-trial and in-court identification of appellant.
Appellant claims the pre-trial identification procedure was unduly suggestive and
thereby impermissibly tainted Guajardo’s in-court identification. The State first
argues the complaint on appeal was not preserved for our review. We agree.
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion stating the specific grounds for the ruling
desired. Tex. R. App. P. 33.1(a). The appellate complaint must comport with the
specific objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002); Williams v. State, 402 S.W.3d 425, 437 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d). An objection stating one legal theory may not be used to
support a different legal theory on appeal. Williams, 402 S.W.3d at 437; see also
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
In a hearing outside the jury’s presence, Ybanez testified that he handed
Guajardo a sealed manila envelope that had been prepared by another officer and he
was unaware of the location of the suspect in the photospread. “After a short time,
complainant, Guajardo, stated he chose the person in the No. 3 position.” Guajardo
also told Ybanez that it “might be the guy.” Ybanez explained to Guajardo that his
choices were “negative, positive, or tentative” and that with respect to tentative,
“there is a strong tentative and weak tentative.” According to Ybanez, those are the
guidelines “in HPD Robbery Division files.” Written on the photospread are the
phrases “strong tentative” and “maybe the man with the gun.”
Ybanez testified that when he handed Guajardo the photospread he did not see
who was in position No. 3, he did not suggest to Guajardo that the person who may
have been involved was in position No. 3, and he did not point to position No. 3.
14
According to Ybanez, it was only after Guajardo made the identification that Ybanez
saw it was appellant.
When Guajardo testified in front of the jury, he stated that it was his
handwriting on the photospread. Guajardo identified appellant, without objection, as
the person who held him at gunpoint.
Appellant’s written motion to suppress claimed the pre-trial identification
procedure was impermissibly suggestive. On appeal, appellant argues that Ybanez’s
explanations that Guajardo’s choices were “negative, positive, or tentative” and that
“there is a strong tentative and weak tentative” rendered the pre-trial identification
procedure unduly suggestive. Appellant’s brief claims that after Guajardo indicated
appellant may be one of the men in the photo array, his identification became a
“strong tentative” following “coaching” from Ybanez. Appellant contends “Ybanez’
actions clearly conveyed to [Guajardo] that the person they were looking for was
portrayed in the array.”
There is no evidence that Ybanez coached Guajardo to identify appellant or
even indicated that the suspect was one of the people in the array. At trial, defense
counsel agreed Ybanez used a blind procedure. In fact, defense counsel stated “there
is no objection to the fact that Russell Guajardo chose the person in Position No. 3.”
It was the explanation to Guajardo and the inclusion of the phrase “strong tentative”
on the array that counsel complained of at trial. Defense counsel even agreed to leave
the word “tentative” on the array if “strong” was redacted. The State agreed to redact
the entire phrase, “strong tentative,” but not just “strong.” The trial court agreed with
the State that both words should be redacted or there should be no redaction at all.
Defense counsel stated his objection “was allowing the jury to hear it was strong
tentative.”
15
Accordingly, the only complaint preserved for appeal was whether the trial
court erred in admitting the photospread without redacting the phrase “strong
tentative.” That is not the argument presented on appeal. The failure of appellant’s
complaint on appeal to comport with his objection at trial presents nothing for our
review. See Segovia v. State, 543 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.]
2018, no pet.); Tex. R. App. P. 33.1(a). Appellant’s second issue is overruled.
Extraneous Offense
In his fourth issue appellant asserts the trial court abused its discretion by
admitting into evidence an extraneous offense, the aggravated robbery of Blacklock,
because it did not have the similarity to the charged offense required to rebut a
defense of mistaken identity. See Tex. R. Evid. 404(b). Appellant’s fifth issue claims
the trial court abused its discretion in finding the probative value of the extraneous
offense was not substantially outweighed by its’ prejudicial effect. See Tex. R. Evid.
403.
Standard of Review
We review a trial court’s ruling under the Rules of Evidence for an abuse of
discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009) (citing
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). “We consider the
ruling in light of what was before the trial court at the time the ruling was made and
uphold the trial court’s judgment if it lies within the zone of reasonable
disagreement.” Id. (citing Rodgers v. State, 205 S.W.3d 525, 529 (Tex. Crim. App.
2006)); see also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).7
7
We reject appellant’s suggestion that we review de novo the trial court’s ruling in
accordance with our opinion in State v. Stukes, 490 S.W.3d 571, 574 (Tex. App.—Houston [14th
Dist.] 2016, no pet.), which concerned a motion to quash. In addition to our reasoning in Stukes,
we cited State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004), wherein the Texas Court of
Criminal Appeals expressly held, pursuant to Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.
16
Applicable Law
Texas Rule of Evidence 404(b) provides evidence of a crime, wrong, or other
act is not admissible to prove a person’s character to show that on a particular
occasion the person acted in accordance with the character. Tex. R. Evid. 404(b)(1).
However, such evidence may be admissible for other purposes, such as proving
identity. Tex. R. Evid. 404(b)(2).
Texas Rule of Evidence 403 provides that even relevant evidence may be
excluded if its probative value is substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence Tex. R. Evid. 403. Evidence is relevant if it has any
tendency to make a fact of consequence in determining the action more or less
probable than it would be without that evidence. Tex. R. Evid. 401.
It is a question for the trial court whether extraneous-offense evidence has
relevance apart from character conformity. Page v. State, 213 S.W.3d 332, 335–36
(Tex. Crim. App. 2006) (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.
App. 2003)). “Merely raising the issue of identity does not automatically render the
1997), the standard of review on a motion to quash is de novo. See Moff, 154 S.W.3d at 601. In
Sauceda, 129 S.W.3d at 120, decided the same year as Moff, the Texas Court of Criminal Appeals
cited their post-Guzman opinion in Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App.1998),
and reiterated the standard of review for a trial court’s ruling under the Rules of Evidence is abuse
of discretion. Since Sauceda, the Texas Court of Criminal Appeals has continued to review a trial
court’s evidentiary rulings for an abuse of discretion. See Sanchez v. State, 444 S.W.3d 215, 220
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (citing Tillman v. State, 354 S.W.3d 425, 435
(Tex. Crim. App. 2011)).
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extraneous evidence admissible.” Id. at 336. For evidence of an extraneous offense
to be admissible for the purpose of establishing identity, an extraneous offense must
be so similar to the charged offense as to mark the offenses as the defendant’s
handiwork. Johnson v. State, 68 S.W.3d 644, 650–51 (Tex. Crim. App. 2002); see
also Ransom v. State, 503 S.W.2d 810, 812 (Tex. Crim. App. 1974) (holding that to
be admissible to prove identity, there must be some distinguishing characteristic
common to the extraneous offense and the charged offense). In determining
similarity of the offenses to prove identity, we consider both the specific
characteristics of the various offenses and the time interval between them. Johnson,
68 S.W.3d at 651; see also Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim. App.
1972) (“A common distinguishing characteristic may be the proximity in time and
place or the common mode of the commission of the offense.”). The common
characteristics of the two offenses must be so unusual and distinctive as to be like a
“signature.” Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996). This
requires much more than the mere repeated commission of crimes of the same class,
such as repeated burglaries or thefts. Collazo v. State, 623 S.W.2d 647, 648 (Tex.
Crim. App. 1981). If there is no sufficiently distinctive characteristic, then the
relevancy of the evidence cannot outweigh its prejudicial potential. Id. Each case
inevitably will turn on its unique facts. Id.
It is presumed that relevant evidence is more probative than prejudicial.
Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007).
The opponent of the evidence has the burden of demonstrating that the prejudicial
effect of the evidence substantially outweighed its probative value. See Montgomery
v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990). If the opponent objects under
Rule 403, the trial court must weigh the probative value of the evidence against the
potential for unfair prejudice or confusing or misleading the jury. See Andrade, 246
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S.W.3d at 227; see also Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.
2006). The following factors are considered relevant to the analysis under Rule 403:
(1) the strength of the evidence in making a fact more or less probable; (2) the
potential of the extraneous-offense evidence to impress the jury in some irrational
but indelible way; (3) the amount of time the proponent needed to develop the
evidence; and (4) the strength of the proponent’s need for the evidence to prove a
fact of consequence. Grant v. State, 475 S.W.3d 409, 420–21 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). The trial court is not required to perform the balancing
test on the record, and when the record is silent, we must presume that the trial court
performed the appropriate balancing test. Kappel v. State, 402 S.W.3d 490, 494
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Williams v. State, 958
S.W.2d 186, 195–96 (Tex. Crim. App. 1997)).
The Extraneous-Offense Evidence
In a hearing outside the jury’s presence, the trial court heard testimony
regarding the similarity of the Blacklock robbery and the incident in this case.
Blacklock received a call from “Josh,” whom he did not know. Josh said that he and
his sister wanted a large amount of marijuana. Blacklock did not have it but knew
someone who did and was planning to charge Josh for the information. Blacklock
was waiting for Josh and his sister at the Creekbend apartments. Blacklock was on
the phone with Josh when he, Blacklock, walked outside to meet them but “that’s
not who was outside.” Josh directed Blacklock to a small black SUV that was already
parked at the apartment complex. Blacklock saw the driver and was about to get in
when he saw that “it was three guys instead of a guy and a girl.” Josh was sitting in
the front passenger’s seat. Blacklock got in the backseat, behind the driver. At this
time, Blacklock was on the phone with the person who had the marijuana. When
Blacklock disconnected the call, the other two males—not Josh—pulled out guns.
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Blacklock identified appellant as the person sitting in the backseat next to him who
had a gun. Appellant said, “you know what this is . . . I want everything.” Blacklock
gave Josh his wallet, phone and money. When Josh opened Blacklock’s wallet, he
found several credit cards and suggested they empty Blacklock’s bank account.
Appellant then said, “He ain’t got no money. Let’s just kill [him].” Josh agreed and
they switched guns. Josh had a .45, which he gave to appellant, and took appellant’s
smaller gun. Blacklock tried to open the door but the child-safety lock was on. The
driver began to drive off and when appellant looked away for a second, Blacklock
hit him and tried to get the gun. The gun went off, hitting Josh. After the car stopped,
Blacklock was able to get out through appellant’s door.
Khan testified that he was investigating the homicide of Smith on March 24,
2013. At the time of his death, Smith was actively robbing Blacklock at 7600
Creekbend, a location that is five to six miles from the Woodchase apartments. The
other two suspects identified as robbing Blacklock were appellant and Jenkins. Khan
identified appellant in court. Khan testified that when he interviewed Blacklock,
there was nothing peculiar about the case that led him to believe it was connected to
the Woodchase robbery six weeks earlier. Khan agreed that “drug rips” are common
enough in Houston that “just because it’s a drug rip” would not mean they are
connected. Khan stated that he would have to look at the details of the cases to
determine if it is “their MO.”
Analysis
The record reflects the extraneous offense and the charged offenses had the
following similarities:
1. Smith arranged a drug transaction;
2. Smith had two other men working with him;
3. Smith and his two accomplices arrived at the location first;
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4. The vehicle was a small dark-colored SUV;
5. Two of the three men had guns;
6. The person Smith dealt directly with—Blacklock and Guajardo—was
directed into the backseat and held at gunpoint;
7. One of the men with Smith threatened to kill Blacklock and Guajardo;
and
8. The backdoor of the SUV was locked and would not open from the
inside, as if the child-safety lock was on.
Although there were some differences, such as the two men apart from Smith
claiming to be police, Texas law does not require extraneous-offense evidence to be
completely identical to the charged offense to be admissible to prove identity. Page,
213 S.W.3d at 337–38. Here, a comparison of the charged offense and the extraneous
offense shows at least eight similarities. These likenesses between the charged
offenses and the extraneous offense show a pattern of conduct sufficiently distinctive
to constitute a “signature,” and thereby qualify as an exception to the general rule
precluding the admission of extraneous-offense evidence.
Turning to whether the evidence was more prejudicial than probative, the first
factor weighs strongly in favor of admissibility because the evidence was relevant
to prove identity and rebut appellant’s defensive theory that he was not a party to
either of the charged offenses. See Bargas v. State, 252 S.W.3d 876, 893 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (determining first factor weighs strongly
in favor of admissibility where extraneous-offense evidence rebutted defensive
theory). The second and third factors also weigh in favor of admissibility. The
extraneous offenses were no more inflammatory than the crimes for which appellant
was indicted, so the testimony 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 Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App.
1996). Any danger the testimony may have impressed the jury in a prejudicial way
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is overshadowed by its probative value. See Bargas, 252 S.W.3d at 893 (viewing
prejudicial tendencies of extraneous-offense testimony in sexual assault case as
outweighed by its probative value when it was used to rebut a defensive issue).
Furthermore, the complained-of testimony was adduced from two of the State’s eight
witnesses in the course of the four-day guilt-innocence proceedings. Thus, the
amount of time spent developing the testimony about the extraneous offense was not
lengthy. See id. The State’s need for this testimony was also significant, favoring
admissibility under the fourth factor. See id. As noted above, this evidence discredits
appellant’s theory that he was not party to the robbery of Hurwitz or the kidnapping
of Guajardo.
We conclude the extraneous-offense evidence was sufficiently similar to the
charged offense to be probative in proving appellant’s identity. Considering the
above factors, the trial court was within its’ discretion in determining that the danger
of unfair prejudice did not substantially outweigh the probative value of the
evidence. See Kappel, 402 S.W.3d at 495 (citing Tienda, 358 S.W.3d at 638).
Because the trial court’s decision to admit the extraneous-offense evidence is within
the zone of reasonable disagreement, we determine the trial court’s ruling does not
constitute an abuse of discretion. Appellant’s fourth and fifth issues are overruled.
CONCLUSION
Having overruled all of appellant’s issues, we affirm the judgment of the trial
court in each case.
/s/ John Donovan
Justice
Panel consists of Justices Boyce, Donovan and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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