Opinion
No. 14-07-00037-CR
January 22, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1061358.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
A jury found appellant, Jimmie Keith Evans, guilty of the felony offense of robbery. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). The trial court sentenced appellant to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues on appeal, appellant contends his conviction must be reversed because (1) the evidence is legally and factually insufficient, and (2) the trial court erred when it admitted evidence of appellant's alleged involvement in a similar robbery. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 11:30 a.m., on February 28, 2006, the complainant, Carol Dominy, drove into a Kroger parking lot in Channelview, Texas. After parking her vehicle, Ms. Dominy exited her vehicle. Immediately after she exited her vehicle and while she was standing beside the vehicle, a small SUV pulled up close to Ms. Dominy and the driver said "Hi." Thinking the driver was speaking to her, Ms. Dominy turned and looked right into the eyes of the driver. The driver then reached out of the SUV and grabbed Ms. Dominy's purse. Ms. Dominy resisted the driver's efforts to pull the purse off her shoulder, even after the driver began driving away. Ms. Dominy finally released her purse only when she was pulled to the ground by the force of the SUV pulling away. Shortly after her purse had been stolen, a deputy with the Harris County Sheriff's Department arrived and interviewed Ms. Dominy. Later that same day, Ms. Dominy went to the emergency room and was treated for her injuries sustained during the robbery, including abrasions of the right hand, left knee pain, and swelling to the left foot. On March 14, 2006, Ms. Dominy met with Detective Shane McCoy at the sheriff's office. Ms. Dominy told Detective McCoy, and later testified at trial, that there were four men in the small SUV when she was robbed. She described the driver as a black male and the front seat passenger as a white male. Following Ms. Dominy's description of what happened, Detective McCoy showed her two photospreads, one of white males of similar characteristics and one of black males of similar characteristics. Ms. Dominy positively identified appellant in the second photospread. During trial, Ms. Dominy identified appellant as the driver who took her purse. In addition, although her only encounter with appellant had been brief, Ms. Dominy testified that she would never forget looking at appellant right in the face and eyes. During the defense portion of the trial, appellant presented two witnesses: appellant's mother and stepfather, who reside in Humble. Appellant's stepfather, Robert Blow, testified that appellant had come to his house to visit with appellant's mother about her health the morning Ms. Dominy was robbed. Mr. Blow further testified that appellant helped with yardwork and was still at the house when he left for work at approximately 3 p.m. Appellant's mother, Eleanor Jean Evans, testified that appellant, along with her other children, had come to her house about nine or ten in the morning of February 28, 2006 to discuss her health and recent diagnosis of an unspecified illness. Ms. Evans initially testified that her husband, Mr. Blow, was the first to leave the house when he departed for work about 3 p.m. She later testified that all of her children, with the exception of appellant, left the house prior to her husband's departure for work. Ms. Evans testified she did not know exactly when appellant left but it was probably about four or five in the afternoon. Ms. Evans also admitted the possibility that appellant may have left the house during the day to go to the corner store. Finally, Ms. Evans testified she called the Humble Police Department about her son's alibi but could not recall the names of any officers she spoke to or any details about the call. In rebuttal, the State introduced the call records for the Humble Police Department. Those call records do not reflect that Ms. Evans had contacted the police department. The Humble Police Department's records manager admitted that calls to the police department are not always recorded for cases that are immediately referred to another agency. Appellant had initially surfaced as a suspect in the robbery of Ms. Dominy after he was arrested for a similar incident which occurred a week after, and approximately three miles away from, the location where Ms. Dominy had been robbed. At about 11 a.m. on March 6, 2006, Richard Sathe and a co-worker were driving through a retail center parking lot when they saw a white male steal a purse from a lone woman walking to her parked car. The suspect pushed his victim to the ground, ran a short distance, jumped into a car, which immediately drove off. Mr. Sathe wrote down the license plate number of the getaway car and then followed the suspect's car. After a 45-minute pursuit, the witnesses managed to detain the driver and alert a nearby police officer to the matter. By the time the getaway car was stopped, only the driver, a black male, was still in the car. Mr. Sathe had seen the other three occupants exit the vehicle during the chase. At trial, Mr. Sathe identified appellant as the driver of the getaway vehicle in the second theft. Appellant was charged with burglary of a motor vehicle for his involvement in the March 6 incident. Investigators soon connected appellant with the February 28 robbery because of the similarities between the cases, such as the closeness in time between the incidents, the locale of the incidents, the manner in which they were committed, and, according to Detective McCoy, the unusual occurrence of white and black males participating in criminal activity together. The trial court admitted the testimony regarding appellant's involvement in the extraneous robbery over appellant's relevance and Rule 403 objections. During the examination of the witnesses regarding the extraneous offense, the trial court instructed the jury that the testimony was not being offered for the truth of the matter asserted, "but to show [the jury] the context in which all of this occurred and came together and for that purpose." In addition, in the jury charge, the trial court instructed the jury that it was to only consider the evidence for the limited purpose of determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the appellant in connection with the charged offense. Appellant was found guilty of robbery by the jury. Appellant waived a punishment hearing and the trial court sentenced appellant to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.DISCUSSION
In his first issue on appeal, appellant contends the evidence is legally and factually insufficient to support his conviction. In his second issue, appellant contends the trial court reversibly erred when it admitted evidence of the extraneous robbery into evidence. Because it could impact our handling of the challenges to the sufficiency of the evidence, we address appellant's second issue first.A. Evidence of the Extraneous Robbery is Relevant Under Rule 404(b)
In his second issue, appellant initially contends the evidence of appellant's alleged involvement in the extraneous robbery is not admissible under Rule 404(b) because the two offenses are not sufficiently similar.1. Standard of Review
Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith. Tex. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Id., Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (op. on reh'g). Illustrative of the permissible purposes to which evidence of other crimes, wrongs, or acts may be put are proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. These exceptions are neither exclusive nor exhaustive. Pondexter v. State, 942 S.W.2d 577, 583-84 (Tex.Crim.App. 1996). Extraneous offense evidence that logically serves any of these purposes is relevant beyond its tendency to prove the character of a person to show that he acted in conformity therewith. Montgomery, 810 S.W.2d at 387. It is therefore admissible, subject only to the trial court's discretion nevertheless to exclude it if its probative value is substantially outweighed by the danger of unfair prejudice. Id. citing Tex. R. Evid. 403. However, if the extraneous offense evidence is not relevant apart from supporting an inference of character conformity, it is absolutely inadmissible under Rule 404(b). Id. Questions of relevancy should be left largely to the trial court, relying on its own observations and experience. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). If the trial court determines the evidence has relevance apart from character conformity, the evidence should be admitted absent a further objection from the opponent of the evidence. Montgomery, 810 S.W.2d at 389. The trial court's decision whether to admit evidence under Rule 404(b) will be upheld on appeal absent an abuse of discretion. Id. at 391. In other words, an appellate court will not intercede as long as the trial court's decision is within the zone of reasonable disagreement. Id. 2. The Trial Court Did Not Abuse Its Discretion When it Admitted Evidence of the Extraneous Robbery In order to be deemed relevant and therefore admissible to prove identity, any extraneous offenses must be sufficiently similar so as to mark them as the defendant's handiwork. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002); Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996). In assessing similarity, courts may take into account the specific characteristics of offenses, as well as the time interval between them. Johnson, 68 S.W.3d at 651. Similarity may be shown by proximity in time and place, or by a common mode of committing the offenses. Lane, 933 S.W.2d at 519; Ransom v. State, 503 S.W.2d 810, 813 (Tex.Crim.App. 1974). Here, despite appellant's contention otherwise, the record demonstrates numerous similarities between the two offenses. The offenses occurred within three miles of one another and within a six-day time period. Both took place late in the morning and in large retail parking lots on major streets. Both acts were perpetrated quickly, snatching purses from unaccompanied females walking or standing in the parking lots. Both offenses were carried out without the use of a deadly weapon or verbal threats. Both offenses involved white and black participants, which Detective McCoy testified was a rare occurrence. Finally, appellant was the driver of the getaway vehicle during both offenses. We hold that the two offenses were sufficiently similar thus making the testimony regarding the extraneous offense relevant on the issue of identity.B. The Prejudicial Effect of the Extraneous Offense Evidence Did Not Outweigh the Probative Value
In his second issue, appellant also contends the trial court abused its discretion when it allowed the State to present the extraneous offense evidence because it was unfairly prejudicial and should have been excluded under Rule 403 of the Texas Rules of Evidence. Tex. R. Evid. 403.1. The Standard of Review
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Therefore, upon further objection from the opponent of the evidence based on Rule 403, the trial court must weigh the probativeness of the evidence against the potential for unfair prejudice. Montgomery, 810 S.W.2d at 389. A trial court's ruling on a Rule 403 objection will not be overturned absent an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439-40 (Tex.Crim.App. 2005). The rationale for this broad discretion is twofold. First, Rule 403's language that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice displays the drafters' intent to vest the trial court with substantial discretion. Id. at 439. Second, the trial court is in a superior position to evaluate the impact of the evidence than an appellate court reviewing only a transcript. Id.; Montgomery, 810 S.W.2d at 378-79. Unlike the trial court, an appellate court cannot weigh on appeal the intonation and the demeanor of the witnesses preceding the testimony in issue, nor can an appellate court determine the emotional reaction of the jury to other pieces of evidence or judge the success of impeachment by cross-examination through observation of the jurors. Montgomery, 810 S.W.3d at 379. The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable, and we must uphold the admissibility decision when it is within the zone of reasonable disagreement. Mechler, 153 S.W.3d at 439-40. The opponent of the evidence has the burden to demonstrate that the prejudicial effect substantially outweighs the probative value of the evidence. Montgomery, 810 S.W.2d at 377. 2. Application of Rule 403 Under Texas Rule of Evidence 401, evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. There is a presumption of admissibility of relevant evidence. See Tex. R. Evid. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex.Crim.App. 2004). Relevant evidence may still be excluded by the trial court under Rule 403 "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." Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman v. State, 71 S.W.3d 738, 754-55 (Tex.Crim.App. 2002). The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence to prove a fact of consequence. Mechler, 153 S.W.3d at 440. If the record reveals one or more of these considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude the trial court abused its discretion in admitting the evidence. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). a. Probative Value We start with an examination of the probative value of the evidence. The State asserts the extraneous offense evidence was introduced to rebut appellant's alibi witnesses, thus bolstering the State's evidence identifying appellant as the person who snatched Ms. Dominy's purse. Extraneous offense evidence may be admitted to rebut a defensive theory. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003) (stating that rebuttal of a defensive theory is one of the permissible purposes for which relevant evidence may be admitted under Texas Rule of Evidence 404(b)). In addition, extraneous offense evidence may be admissible to show identity when identity is an issue in a case. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002). Because identity was an issue in this case and appellant produced two witnesses testifying to an alibi, we agree with the State that the extraneous offense evidence is highly probative. b. Indelible Impression The second criteria used to determine whether the prejudice of admitting the evidence substantially outweighed the probative value is whether the evidence has the potential to impress the jury in an irrational but nevertheless indelible way. Rule 403 does not exclude all prejudicial evidence, if it did, all of the State's evidence would be excluded as that is the purpose behind all of the State's evidence. Instead, Rule 403 focuses only on the danger of unfair prejudice and the tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440. While the testimony was certainly prejudicial to appellant, it rebutted appellant's defensive theories of alibi and that Ms. Dominy's brief opportunity to view the perpetrator led to a mistaken identification of appellant as that perpetrator. The trial court gave a limiting instruction to the jury while the extraneous offense evidence was being introduced during the trial as well as a limiting instruction in the jury charge. Accordingly, we find that the extraneous offense evidence does not have a great potential to impress the jury in an irrational way and would not tempt the jury into a finding of guilt on improper grounds. c. Time to Develop The third criteria used to determine whether the prejudice of admitting evidence substantially outweighs the probative value is the amount of time needed to develop the contested evidence, during which the jury will be distracted from the indicted offense. Id. at 441. The State admits the disputed extraneous offense evidence encompassed approximately one-third of the State's total testimony. The testimony covers only 23 pages out of the reporter's record, the evidence portions of which total 158 pages. Because it was relatively brief, we hold that the extraneous offense evidence was unlikely to distract the jury from considering the charged offense and thus does not weigh against admitting the evidence. d. The Need for the Evidence The last factor used to determine whether the prejudice in admitting the evidence substantially outweighs the probative value focuses on the proponent's need for the evidence to prove a fact of consequence. This factor encompasses whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Id. The contested testimony was certainly related to a disputed issue: the identity of the appellant as the perpetrator of the robbery. The State also demonstrated a need for the evidence: to rebut appellant's alibi evidence and mistaken identification theory. We hold that the State needed the extraneous offense evidence to rebut appellant's alibi witnesses. Evaluating the above four factors and balancing the prejudicial nature of the evidence against its probative value, we conclude the probative value of the evidence is not substantially outweighed by its prejudicial effect. Accordingly, the trial court did not abuse its discretion when it admitted the extraneous offense evidence. Therefore, we overrule appellant's second issue on appeal.C. Legal Sufficiency of the Evidence
1. Standard of Review To evaluate appellant's legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). 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); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd).2. The Evidence is Legally SufficientAppellant was charged with the offense of robbery. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, the person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). Appellant challenges the legal sufficiency of the evidence by pointing out (1) the short amount of time which Ms. Dominy had to see the person who robbed her; (2) the fact that in her written statement, Ms. Dominy did not mention looking directly into appellant's eyes and face; and (3) the alibi testimony of appellant's mother and stepfather. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Westbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Even in the face of the contrary evidence pointed out by appellant, when viewed in the light most favorable to the verdict, a rational jury could have concluded Ms. Dominy's testimony identifying appellant as the person who stole her purse on February 28, 2006 established, beyond a reasonable doubt, all of the essential elements of the robbery charge. We hold the evidence is legally sufficient to support the jury's verdict.
D. Factual Sufficiency of the Evidence
In his factual sufficiency challenge appellant contends the evidence contrary to the jury's verdict overwhelmingly outweighs the evidence supporting the verdict. Here, in addition to the contrary evidence appellant emphasized in his legal sufficiency challenge, appellant points out (1) the robbery occurred very quickly; (2) Ms. Dominy admitted she had never seen the robber before the robbery; (3) Ms. Dominy incorrectly testified that she gave her written statement to the police days after the offense rather than two weeks afterward as Detective McCoy testified; and (4) the evidence from the extraneous robbery testimony showed that appellant only drove the getaway car and did not actually take the purse from the victim.1. Standard of ReviewIn a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). As an appellate court, we may not reverse a criminal conviction because the evidence is factually insufficient unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's finding. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).