Opinion
No. 05-16-00706-CR
06-08-2017
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1556643-I
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Brown
Following a jury trial, Robert Erwin Jackson appeals his conviction for aggravated robbery. In a single issue, appellant contends the trial court erred in overruling his objection to the admission of extraneous offense evidence. We affirm the trial court's judgment.
The charged offense occurred at a CVS store. Before jury selection, defense counsel brought a motion in limine regarding extraneous offenses. Counsel stated that the complaining witness, a CVS employee, had recognized appellant and his co-defendant "from before because he suspected that they may have committed a theft in the past." Counsel argued that he did not think identity was an issue in the case and that appellant's having stolen from the store in the past was not relevant. The State responded that the prior incident went to identity, common scheme, and lack of mistake. The trial judge did not make any ruling at that time, stating, "[L]et's hold on that and see how he testifies."
The complained-of testimony actually came in the following day through Dallas Police Officer Ted Beyer. The officer testified that he was dispatched to a CVS on the afternoon of August 2, 2015. The store manager told Beyer that two men had taken items off the shelf and put them in a backpack. According to the officer, the manager further reported, "[T]hey had been there before doing the same thing in previous occurrences." Defense counsel objected and asked to approach the bench. The judge responded that he understood the objection and was going to overrule it.
The CVS manager testified next. He indicated that appellant's role in the crime was to distract store employees while his co-defendant, who wore a backpack, put merchandise in the backpack. As the co-defendant exited the store, the manager tried to convince him to hand over the stolen items. The co-defendant pulled up his shirt to display a gun tucked in his waistband. At that point, the manager backed off. He called the police and gave them a description of the men and the direction in which they were headed. Police apprehended appellant and his co-defendant a short time later and recovered the backpack containing store property.
The prosecutor did not ask the store manager about seeing appellant in the store on previous occasions. In fact, defense counsel asked the manager if he had seen his client in the store before. The manager testified that he believed he had seen him before, but did not recall "any kind of incidents before."
After hearing from three more State's witnesses, other officers involved in the case, the jury found appellant guilty and assessed his punishment at five years' confinement. This appeal followed.
In his sole issue, appellant contends the trial court erred in overruling his objection to Officer Beyer's testimony about extraneous thefts. Evidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion he acted in accordance with the character. TEX. R. EVID. 404(b)(1). Such evidence may be admissible for another purpose, however, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2). Whether extraneous offense evidence has relevance apart from character conformity is a question for the trial court. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). Thus, a trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Id. As long as the ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Id.
The defense's theory of the case was that appellant may have been guilty of theft, but was not guilty of aggravated robbery because the State could not prove he knew his co-defendant had a gun. During voir dire, defense counsel told prospective jurors that sometimes police officers and prosecutors make mistakes and the jury's job was to clean up the mistakes. The trial court could have properly determined that evidence appellant and his co-defendant had been in the store "doing the same thing in previous occurrences" had relevance apart from character conformity. The court could have exercised its discretion to determine the evidence was relevant to show appellant and his co-defendant had planned this aggravated robbery together and to show the absence of mistake.
To the extent appellant argues that the trial court erred in admitting the evidence under rule of evidence 403 because its probative value was outweighed by its prejudicial effect, he has not preserved this complaint for our review. See TEX. R. EVID. 403 (court may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice). Appellant did not object in the trial court on rule 403 grounds; his sole objection to the extraneous offense evidence was that it was not relevant. A specific 403 objection must be raised to preserve error because such an objection is not implicitly contained in relevancy or rule 404(b) objections. Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd); see Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g); TEX. R. APP. P. 33.1(a).
Further, we note that any error in the admission of Officer Beyer's testimony about extraneous offenses was likely harmless. See TEX. R. APP. P. 44.2(b) (error that does not affect substantial rights must be disregarded). The officer made a single reference to the store manager telling him the suspects had done the same thing on previous occurrences. The manager himself testified, however, that while he believed he had seen appellant in his store before, he did not recall any incident. In closing arguments, the prosecutors argued that appellant and his co-defendant had a plan and acted in concert, but did not mention the officer's testimony about previous thefts. We overrule appellant's sole issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160706F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1556643-I.
Opinion delivered by Justice Brown, Justices Francis and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 8th day of June, 2017.