Opinion
NO. 01-16-00595-CR
05-25-2017
MICHAEL R. HILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1485038
MEMORANDUM OPINION
Appellant, Michael R. Hill, was found guilty by a jury of the offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011). After he pleaded true to an enhancement paragraph, the jury assessed Appellant's sentence at life in prison. In two issues, Appellant contends that the trial court erred in admitting extraneous-offense evidence.
We affirm.
Background
Appellant lived in a Houston apartment with his girlfriend, A. Davis. Appellant's friend, Keylin O'Neil, also lived in the same apartment complex. On October 2, 2015, Appellant texted O'Neil, asking O'Neil if he "wanted some money." O'Neil knew that Appellant was asking if he wanted to commit a robbery. O'Neil responded that he did.
Appellant and O'Neil left the apartment complex in a gray Infiniti that belonged to Davis's mother. Appellant was driving the car. They drove to a Chevron convenience store and gas station in Pasadena, Texas, planning to rob it. When they arrived, Appellant parked the Infiniti in a far corner of the convenience store's parking lot. O'Neil went into the Chevron convenience store to determine if the cashiers were standing behind a protective glass window, which they were not. Before leaving, O'Neil purchased a drink.
The convenience store had numerous security cameras, covering many areas both inside and outside the store. O'Neil's face was captured clearly on the video. After leaving the store, O'Neil returned to the gray Infiniti where Appellant was waiting.
After O'Neil returned to the car, Appellant went into the store. He was wearing a black and gray brindled hoodie sweatshirt and red and white tennis shoes. He was also wearing a red baseball cap, which had "Boston" in white letters on the front. The cap had a white bill with a round sticker in the middle of the bill. Appellant kept his head low with the bill of the hat hiding his face from the security cameras.
Appellant walked directly to the back of the store and entered the restroom. A short time later, the security video shows Appellant exiting the bathroom. While in the restroom, Appellant had pulled the hood on his sweatshirt up over his baseball cap so only the bill was showing, and put on a mask to cover his face. Appellant also had put on one glove. The color of the glove was neon green on top but appeared to be black in the palm area. Appellant was holding what appeared to be a black handgun.
Appellant moved quickly up the aisle in a crouched position toward the counter where store employees, S. Duguro and M. Ali, were working at the cash registers. Appellant jumped over the counter, knocking Duguro to the floor. Brandishing the handgun, he demanded that the employees give him money, and they gave him $800 to $1,000. Appellant left the store and returned to the Infinity where O'Neil was waiting. They drove back to the apartment complex where they both lived.
Several days later, Detective D. Wright of the Pasadena Police Department was assigned to the case. She learned that the robber's face could not be identified from the security video because he had worn a mask. The video had no audio so the robber's voice also could not be identified. However, Detective Wright learned that the video showed that O'Neil had been in the same car as the robber and that O'Neil's face had been captured on the store's video. She took screen shots of O'Neil's face and published them in the media. Soon, O'Neil's identity was known.
After determining O'Neil's address, surveillance was set up on the Houston apartment complex where O'Neil and Appellant lived. Detective Wright took part in the surveillance. She was looking for the gray Infiniti involved in the Chevron robbery and also for a green Pontiac in which O'Neil had been seen as a passenger. While on surveillance, Detective Wright saw a gray Infiniti pass by her. Also knowing that there had been a similar robbery in Houston involving a gray Infiniti, Detective Wright contacted the Houston Police Department, requesting HPD to initiate a traffic stop of the car.
When HPD stopped the Infiniti, Appellant was driving and his girlfriend, Davis, was a passenger. After the traffic stop, Appellant was taken to a HPD substation. There, he was interviewed by HPD Detective Varela, who was investigating the Houston robbery involving a gray Infiniti.
After the stop, the police had Davis's gray Infiniti towed. Davis agreed to go to the same substation where Appellant was taken, and she voluntarily spoke with Detective Varela.
Although they were in the same substation, Davis and Appellant were initially interviewed separately. Detective Varela showed Davis a video of a robbery that had occurred at a Valero convenience store and gas station in Houston on October 3, one day after the Chevron robbery in Pasadena. The robber in the Valero video was dressed similarly to the robber in the Chevron robbery. Like the Chevron robber, his face was concealed by a mask. The Valero robber wore a gray and black hoodie with the hood pulled over his baseball cap. The baseball cap had a white bill with a round sticker in the middle. The Valero robber was also wearing light-colored gloves and wielding a black handgun.
Unlike the Chevron video, the Valero video had audio. During the robbery, the masked robber can be heard on the video yelling at the two female Valero cashiers and a female customer, using obscenities and demanding that they give him money. As he leaves the store, the robber fired his gun, shattering a window but not physically harming the three women.
When she heard the voice of the robber on the Valero video, Davis became physically upset. Davis began shaking uncontrollably and crying, indicating to the Detective Varela that she recognized the voice of the Valero robber.
During the first part of his interview at the substation, Appellant denied any involvement in the Chevron robbery. Detective Varela then brought Davis into the interview room with Appellant. Appellant continued to deny his involvement in the Chevron robbery until Davis indicated to him that she had watched the video of the Valero robbery. She told Appellant that she had recognized the voice of the robber. Appellant then admitted that he was the masked robber who had robbed the Chevron convenience store in Pasadena. Appellant mentioned using a .45 caliber pistol, and he told the detective that he had thrown the gun in a lake.
Davis, who shared an apartment with Appellant, gave her consent for police to search their apartment. In the apartment, police recovered items of clothing that looked similar to those worn by the robber during the Chevron robbery, as seen in the security video. These items included the following: (1) a red baseball cap that had "Boston" written in white letters on the cap's front, a white bill, and a round sticker in the middle of the bill; (2) a pair of neon green gloves with black palms, (3) a pair of red and white tennis shoes, (4) a black and gray brindled hoodie sweatshirt; and (5) and a black ski mask. In addition, the police recovered a gun cartridge and bullets for a .45 caliber gun, but they did not recover a gun from the apartment. However, when the gray Infiniti was inventoried a BB gun pistol was recovered from the car.
The same day that Appellant and Davis were interviewed, O'Neil was also taken in by police for questioning. O'Neil admitted his involvement in the robbery, and identified Appellant as the robber at the Chevron store.
Appellant was charged with the offense of aggravated robbery with regard to the robbery at the Chevron convenience store in Pasadena. The case was tried to a jury. During opening statements, Appellant's attorney told the jury, "[T]here's not going to be one witness that's going to be able to say this person, Michael Hill, was in that Chevron on that day. Not one person identifies him. And at the conclusion of this case I'm going to ask that you find him not guilty."
During the guilt-innocence phase, the State sought to offer evidence of the robbery at the Valero gas station, which had occurred the day after the Chevron robbery. Because Davis would not be testifying at trial, the State sought to offer evidence showing (1) that Davis had indicated to Detective Varela that she recognized the voice of the robber in the Valero video and (2) that Appellant confessed to committing the Chevron robbery when Davis indicated to him that she had heard the Valero robber's voice in the video and knew his identity.
The State also sought to introduce the testimony of the cashier from the Valero robbery and the security video of the robbery. The State averred that it was entitled to introduce evidence of the extraneous Valero robbery to show Appellant's identity in the Chevron robbery. To support admission of the evidence, the State pointed to the similarities between the two robberies, particularly the similarity in the clothing worn by the robber during each offense.
Appellant objected to the admission of evidence of the extraneous Valero robbery. He asserted (1) the similarities between the Chevron robbery and the Valero robbery were not great; (2) the evidence was not relevant; and (3) the probative value of the extraneous-offense evidence was outweighed by the danger of unfair prejudice to him.
After considering the parties' arguments, the trial court overruled Appellant's objections, and the following extraneous-offense evidence was admitted: (1) Detective Varela's testimony regarding Davis's reaction to hearing the robber's voice on the Valero security video; (2) the detective's testimony that Appellant confessed to the Chevron robbery when he learned that Davis recognized the robber's voice in the Valero robbery; (3) Appellant's video-taped statement in which he admitted to being the Chevron robber; (4) the testimony of the store clerk from the Valero robbery, describing the robber and the robbery; and (5) the video of the Valero robbery.
Ultimately, the jury found Appellant guilty of the offense of aggravated robbery at the Chevron store. At the end of the punishment phase, the jury assessed Appellant's punishment at life in prison.
During the punishment phase, Appellant pleaded true to an enhancement paragraph for a previous burglary conviction. The jury also heard evidence that Appellant had been involved in other aggravated robberies near in time to the Chevron and Valero robberies, he had a previous conviction for indecent exposure, and he had received deferred adjudication for arson.
This appeal followed. In two issues, Appellant complains that the trial court abused its discretion in admitting evidence of the extraneous Valero robbery during the guilt-innocence phase. More particularly, Appellant asserts that the extraneous-offense evidence was inadmissible under Rules of Evidence 404(b) and 403.
Extraneous-Offense Evidence
A. Standard of Review
We review a trial court's rulings on the admissibility of evidence for abuse of discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court does not abuse its discretion if its decision is within "the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
B. Rule 404(b)
In his first issue, Appellant asserts that the trial court erred by admitting evidence of the extraneous Valero robbery for purposes of identification.
Rule of Evidence 404(b) prohibits the admission of extraneous offenses to prove a person's character or to show that the person acted in conformity with that character. See TEX. R. EVID. 404(b). "'Rule 404(b) is a rule of inclusion rather than exclusion.'" De La Paz v. State, 279 S.W.3d 343, 336 (Tex. Crim. App. 2009) (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). "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." Id. (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). Extraneous-offense evidence may be admissible when it has relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Extraneous offenses may be admissible for some other purpose such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990). An extraneous offense may be admissible to prove identity only if the identity of the perpetrator is at issue in the case. McGregor v. State, 394 S.W.3d 90, 118 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citing Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004)).
It is undisputed that identity was a contested material issue in this case. Defense counsel raised the issue of identity in his opening statement. He also emphasized, through cross-examination of the State's witnesses, that the robber's identity was concealed by a mask. And, during closing argument, defense counsel averred, "Each one of those people [the convenience store clerks] told you they couldn't identify him. They couldn't identify whoever that person was. So the State doesn't have a witness who was at the scene who can identify him."
Raising the issue of identity, however, "does not automatically render evidence of an extraneous offense admissible." Jabari v. State, 273 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006)). Extraneous offenses are admissible to show identity only if the charged offense and the extraneous offense are so similar "that the offenses illustrate the defendant's 'distinctive and idiosyncratic manner of committing criminal acts.'" Page, 213 S.W.3d at 336 (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)). The common characteristics must be so unusual as to act as the defendant's "signature" or "handiwork." See id.; Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002) (citing Lane, 933 S.W.2d at 519); Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (considering specific characteristics and time interval between extraneous and charged offenses). "We must compare the circumstances of the charged offense and the extraneous offenses to determine if they are sufficiently similar to make the extraneous offenses relevant to the issue of identity." Burton v. State, 230 S.W.3d 846, 850 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Page, 213 S.W.3d at 336; Lane, 933 S.W.2d at 519)).
Here, a comparison between the charged offense—the Chevron robbery—and the extraneous offense—the Valero robbery, shows numerous similarities. The robberies were committed close in time to one another. The Chevron robbery was committed on October 2, and the Valero robbery was committed the next day on October 3. Even though the Chevron robbery was committed in Pasadena and the Valero robbery was committed in Houston, the robberies were both committed in Harris County in the Houston metropolitan area.
In addition, a similar mode and method was used in each robbery. Both robberies occurred at a gas station with a convenience store. In each robbery, a man wearing a black mask went to the check-out counters inside the stores and demanded money at gunpoint from the cashiers. The robber in the Valero robbery used a black handgun, and the robber in the Chevron robbery also used what appeared to be a black handgun. See Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (holding sufficient similarities between extraneous offense and charged offense when both offenses were (1) robberies (2) committed at gunpoint (3) in Dallas (4) three days apart and when (5) defendant was aided by a confederate); Sharper v. State, 485 S.W.3d 612, 621 (Tex. App.—Texarkana 2016, no pet.) (sustaining admission of extraneous robbery when evidence showed both offenses arose from (1) robberies (2) committed at gunpoint and (3) at night (4) in nearby communities only (5) three weeks apart and when (6) defendant was aided by another).
In addition, the robbers shown in each video have similar appearances. Significantly, each wore a number of the same unique items of clothing. Each robber wore a baseball cap that had a white bill. On the white bill, in the same place in the middle of the bill, was a round sticker. Each robber also wore a black and gray brindled hoodie sweatshirt with the hood pulled up over the hat so that only the white bill with the sticker can be seen. And each robber wore a black mask over his face.
Evidence was also presented showing that the robber in the Chevron robbery wore one neon green glove on the hand holding the gun and the perpetrator in the Valero robbery wore a neon green glove on each hand. The Chevron video, which is of clearer quality than the Valero video, shows the neon green color of the glove. The Chevron store clerk confirmed that the color was neon green.
In her testimony, the Valero store clerk also confirmed, on direct examination, that the gloves were neon green, but, on cross-examination, the Valero clerk acknowledged that, in the video, the gloves appeared white. In the Valero video, the gloves do, for the most part, appear white; however, as the robber moves around the store there are flashes of neon green on the gloves, giving it the appearance that the video quality is affecting the appearance of the color.
On appeal, Appellant points to a number of dissimilarities between the two offenses. He points out that the robber in the Chevron robbery wore red and white shoes while the robber in the Valero robbery wore black shoes. Appellant also asserts that "a hat, a mask and a dark hoodie" are "hardly idiosyncratic attire for a robber." However, Appellant does not recognize that the hat, worn in each robbery, was unique and distinctive with its white bill and round sticker in the middle of the bill. In addition, a close look at the hoodie sweatshirt worn by the robber in each video, and in the photograph of the hoodie sweatshirt seized from Appellant's apartment, show that it is a distinctive black and gray brindled hoodie sweatshirt. The robber in each robbery wore the combination of the sweatshirt, the baseball cap with the white bill and sticker, and a black mask. During both robberies, the robber pulled the hood on the sweatshirt up over his cap so that only the bill was showing. In short, the clothing items were unique and were worn in a distinct manner. And, there is evidence in the record to support that the robber wore neon green gloves in the Valero robbery similar to the neon green glove worn in the Chevron robbery. As recognized by the Court of Criminal Appeals, "Usually, it is the accretion of small, sometimes individually insignificant details that marks each crime as the handiwork or modus operandi of a single individual." Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008).
Appellant further points out that the robber in the Valero robbery fired his gun after he was given the money by the store clerks while the robber in the Chevron robbery never discharged his weapon. Appellant asserts that it is possible that the robber's weapon in the Chevron robbery was not an actual firearm but was instead a BB gun pistol. A BB gun pistol was recovered from the gray Infiniti when the vehicle was inventoried by the police. Regardless of whether the weapon used in the Chevron robbery was an actual firearm, the weapon had the appearance of a firearm. In the videos, both weapons appear to be black handguns. And, importantly, the robber in each offense used the weapons in the same manner to threaten the clerks in order to rob them of money.
Lastly, Appellant points out that the Chevron robbery was committed in Pasadena while the Valero robbery was committed in Houston. However, both robberies occurred in Harris County in the Houston metropolitan area. In addition, the robberies were at the same type of business: a gas station with a convenience store.
Although there are some differences between the two robberies, these differences do not necessarily outweigh the similarities and destroy the probative value of the extraneous offense in proving identity. See Page, 213 S.W.3d at 338 (stating that Texas law "does not require extraneous-offense evidence to be completely identical to the charged offense to be admissible to prove identity" and noting that, despite some differences, the similarities showed distinctive manner of committing a crime); see also Burton, 230 S.W.3d at 850-51 (indicating that dissimilarities between the offenses, including variations in clothing worn and use of toy gun in one of the extraneous offenses compared to defendant's use of a threatening note in the charged offense, did not defeat similarity of offenses). "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. Given the proximity in time and place of the robberies, the common mode of committing the offenses, and the common items of clothing worn by the robber in each offense, we conclude that the trial court could have reasonably determined that the similarities between the charged offense and the extraneous offense were sufficient to show Appellant's idiosyncratic or signature style of robbery. See Davis v. State, 180 S.W.3d 277, 285 (Tex. App.—Texarkana 2005, no pet.) (determining that extraneous-offense evidence was relevant to proving identity of assailant when attacks occurred at same time of night and within blocks of one another, and assailant wore same clothing in both attacks). Because identity was an issue in the case, we hold that the trial court did not abuse its discretion in overruling Appellant's objection that the extraneous-offense evidence was not admissible under Rule 404(b).
We overrule Appellant's first issue.
C. Rule 403
In his second issue, Appellant asserts that the extraneous-offense evidence of the Valero robbery was inadmissible under Rule of Evidence 403.
Rule 403 permits the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. When undertaking a Rule 403 analysis, a trial court must balance 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 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, 641-42 (Tex. Crim. App. 2006).
Rule 403 favors the admission of relevant evidence, and it carries the presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Martinez, 327 S.W.3d at 737. Further, Rule 403 does not require exclusion of evidence because it creates prejudice; rather, it must be shown that the prejudice is "unfair." Martinez, 327 S.W.3d at 737; Mechler, 153 S.W.3d at 440. Rule 403 contemplates the exclusion of evidence only when a clear disparity exists between the degree of prejudice of the offered evidence and its probative value. Davis, 329 S.W.3d at 806; Gayton v. State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref'd) (citing Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)).
Applying the first two factors, we examine the probative value of the evidence and the State's need for it. The term "probative value" refers to "the inherent probative force of an item of evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent's need for that item of evidence." Davis, 329 S.W.3d at 806 (citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
As discussed, the charged Chevron robbery and extraneous Valero robbery were similar in several key respects; thus, the Valero robbery was highly probative on the issue of identity. See Lane, 933 S.W.2d at 520 (concluding that many similarities between charged and extraneous offenses made extraneous-offense evidence highly probative under Rule 403); Burton, 230 S.W.3d at 851 (same). The extraneous-offense evidence indicated that Davis identified Appellant by his voice in the video as the masked robber in the Valero robbery. It was then necessary to link the Valero robbery and the Chevron robbery by demonstrating the strong similarities between the two offenses in order to identify Appellant as the robber in the charged offense, the Chevron robbery. To show the similarities, it was necessary to play the video of the Valero robbery and to hear the testimony of the Valero clerk, describing the robbery.
With respect to the need for the evidence, we note that there was other evidence identifying Appellant as the Chevron robber, but this evidence was challenged by Appellant. O'Neil testified at the trial for the State, implicating Appellant in the Chevron robbery. However, Appellant attacked O'Neil's credibility, asserting that O'Neil was testifying against Appellant in exchange for a reduced sentence for his participation in the robbery. O'Neil admitted on cross- examination that he had pleaded guilty to the robbery offense and was awaiting sentencing. He stated that he hoped, by testifying against Appellant, he would receive a lower sentence.
Appellant's video-taped confession was also admitted into evidence; however, the defense claimed that Appellant had not given the confession freely. Appellant averred that he had confessed to committing the robbery only because he feared his girlfriend, Davis, would be charged with the robbery if he did not confess.
In addition, the admission of the extraneous-offense evidence assisted the State in showing why Appellant had confessed to the robbery during his interview with Detective Varela. The evidence showed that Appellant confessed when he was confronted with the knowledge that Davis had recognized the voice of the robber in the Valero video.
Given the record, the trial court could have reasonably determined that the State needed the extraneous Valero robbery evidence to assist in establishing Appellant's identity as the robber in the Chevron robbery. See Johnson, 68 S.W.3d at 651-52 (determining strong need for extraneous offenses to establish identity, even though State had many types of other identity evidence, when defendant challenged the probative value of that evidence). Thus, there was sufficient evidence for the trial court to determine that the first two factors weighed in favor of admitting the extraneous-offense evidence.
Regarding the third factor—any tendency of the evidence to suggest a decision on an improper basis—we recognize that there is a tendency for evidence to suggest a decision on an improper basis when the subject matter is prior criminal conduct, particularly when the offenses are similar. Here, the extraneous-offense evidence, particularly the video of the Valero robbery and the testimony of the Valero store clerk, may have had a tendency to suggest a verdict on an improper basis because of its inherently inflammatory and prejudicial nature. The Valero video shows the robber yelling and swearing at the two female store clerks and one female customer, demanding money and pointing a gun at them. Then, after he was given the money, the robber fires his gun, shattering the store window. Two of the women become visibly and audibly distraught after realizing that the robber had shot the gun in their direction.
The State introduced the Valero video during the testimony of the Valero clerk, who discussed the robbery and described some of what was seen in the video. The clerk also testified that, during the robbery, she was afraid for her life, and she stated that the robbery was traumatic. There is also some indication in the record that the clerk was upset while she was testifying.
Likewise, with respect to the fourth factor—confusion of the issues—a slight possibility existed that the jury would focus on the Valero robbery rather than focusing on the charged offense, given the more disturbing nature of the extraneous-offense evidence as compared to the evidence of the charged offense. However, during cross-examination, defense counsel elicited the following testimony from Detective Varela, clarifying for the jury that Appellant was not on trial for the extraneous offense:
Q. [by Defense counsel:] [J]ust to be clear, that [the Valero robbery] was a separate robbery. I don't want to have any confusion. The shooting with the lady where [the Valero clerk] is horrified and screaming [in the video], that's a separate robbery from the October 2nd robbery?
A. That's correct, sir.
Q. And [Appellant's] not being tried for that today. He's being tried for an October 2nd robbery in Pasadena, right?
A. That's correct, sir.
In addition, the following limiting instruction, given by the trial court in the jury charge, mitigated the risk that the jury considered the extraneous offense for an improper purpose and minimized any confusion regarding what purpose the extraneous-offense evidence served:
You are further instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.See Burton, 230 S.W.3d at 851 (holding that trial court's repeated limiting instruction minimized risk that jury could have considered extraneous offenses for an improper purpose). Because the record shows that the jury was informed that it was not to find Appellant guilty based on the extraneous offense, the third and fourth factors weigh only slightly in favor of exclusion of the extraneous-offense evidence.
Under the fifth factor, a court weighs any tendency of the evidence to be given undue weight by a jury that has not been properly equipped to evaluate the probative force of the evidence. This factor concerns "a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. "For example, 'scientific' evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence." Gigliobianco, 210 S.W.3d at 641. Here, the complained-of evidence was not prone to this tendency, as it concerned matters easily comprehensible by the average person. This factor weighs in favor of admissibility.
The final factor concerns whether the presentation of the extraneous-offense evidence consumed an inordinate amount of time. See id. at 641-42. This factor focuses on the time needed "to develop the evidence, during which the jury [is] distracted from consideration of the indicted offense." Mechler, 153 S.W.3d at 441.
Appellant correctly points out that evidence of the extraneous robbery was admitted at different points during trial. Evidence of the Valero robbery was admitted during Detective Wright's testimony, and during publication of Appellant's video-taped statement. In addition, the jury saw the video of the Valero robbery and heard the testimony of the Valero store clerk. However, each witness and piece of evidence offered a different aspect of the extraneous offense necessary to fully develop the details of the robbery so that the jury could understand how the Valero robbery aided in identifying Appellant as the robber in the Chevron robbery.
The record reflects that it was made clear to the jury that the extraneous-offense evidence was being offered for the limited purpose of identification. The extraneous offense evidence was not a distraction but was offered to prove a necessary element of the charge offense: the robber's identity. And, when considered in the context of the entire guilt-innocence phase, evidence of the Valero robbery did not consume an inordinate amount of time.
To summarize, four factors weigh in favor of admission of the extraneous-offense evidence and two factors weigh only slightly in favor of exclusion. After reviewing the record and weighing the necessary factors, we hold that the trial court did not abuse its discretion under Rule of Evidence 403 in admitting the extraneous-offense evidence.
We overrule Appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).