Affirmed and Opinion filed May 25, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00334-CR
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MARION ROBINSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 994239
O P I N I O N
A jury found appellant Marion Robinson, Jr. guilty of aggravated robbery and assessed a punishment of life imprisonment in the Texas Department of Criminal JusticeCInstitutional Division. In his sole point of error, appellant contends that the trial court erred in admitting an extraneous robbery offense. We affirm.
Background
On Friday, June 18, 2004, complainant Margaret Meremikwu was robbed at gunpoint in the parking garage of Riverside Hospital, where she worked as a nurse. During the robbery, the perpetrator shot Meremikwu in the face, causing extensive permanent injuries.
Meremikwu testified that around 6:00 p.m. on June 18, she drove her maroon van to the bank with fellow nurse Bernadine Ike to cash their paychecks. When she returned to the parking garage, Meremikwu noticed two men on the sidewalk wearing Ajacketed hood[s]@; Meremikwu thought this was strange because the coats were thick and it was summer. According to Meremikwu, the taller man held a long object in his hand, which Meremikwu soon realized was a gun, while the shorter man carried a shorter gun. Meremikwu testified that she saw the men=s faces when they approached the passenger=s side of her van. The men tried to open the van doors, but they were locked. Meremikwu testified that the taller man with the long gun then fired at the rear sliding door, shooting her in the mouth, face, neck, and shoulder. Before she lost consciousness, Meremikwu heard the men demanding: AGive me the money.@ While she was in the hospital, Meremikwu picked appellant out of a photo spread and also identified him in court as the shooter. Although Meremikwu could not remember whether appellant, who was wearing glasses at trial, was wearing glasses on June 18, she testified that she was Aa hundred percent@ sure that appellant was the shooter because she had clearly seen the men=s faces. On cross-examination, Meremikwu testified that she had hired a civil attorney and planned to sue the hospital and possibly appellant for her injuries.
Bernadine Ike, who corroborated Meremikwu=s account of the robbery, explained that the nurses routinely cashed their paychecks every other Friday. Ike testified that as she and Meremikwu returned from the bank on June 18, she saw two men wearing dark winter coats with the hoods pulled up. Ike also noticed that one man was taller than the other. Ike testified that as Meremikwu was repositioning her van in the parking space, the two men rushed up to the passenger=s side of the vehicle. According to Ike, each man carried a gun, and one gun was black. Ike fell to the floor of the van when the shot was fired and testified that she did not get a good look at the men=s faces. On cross-examination, Ike testified that the police never asked her to pick suspects from a photo line-up.
Jennifer Jones, whose husband was a patient at the hospital, was parked next to Meremikwu=s van on June 18. Jones testified that as she was getting into her car, she heard voices yelling that they would shoot a woman if she locked the door. Jones testified that she saw two men at the van and that the taller man was wielding a long, exaggerated pistol. Jones described the man with the gun as Aa black male with a hood over a shirt@ wearing shorts and white tennis shoes or socks. Jones dropped to the ground when she heard the gunshot and testified on cross-examination that she was unsure which man fired the gun. She was also unsure whether one or both men had worn hoods but stated that they were African-American when defense counsel asked about their complexions. Jones further testified that the police never asked her to pick out suspects from a lineup or photos and that the hospital was in a high-crime area.
Ellis Henderson, who used to work at the hospital, was also in the parking garage on June 18. Henderson testified that he heard a gunshot and saw two men near a maroon van. According to Henderson, the shorter man wore dark shorts and carried a handgun. Henderson stated that the taller man wore a jacket with the hood pulled up and carried an object that resembled an umbrella or a weapon larger than a handgun. Henderson testified that he saw the men only Avaguely@ and did not see their faces. On cross-examination, Henderson testified that the shorter man was wearing a dark shirt and shorts but no hood.
Patricia Merritt, who also worked at the hospital, testified that it was common knowledge that the hospital employees routinely took their paychecks to a nearby bank on paydays. Merritt testified that on June 18, she was returning from the bank when she saw two men on the sidewalk. Merritt thought that the taller man was carrying an umbrella, but one of the other nurses with Merritt thought the object was a gun. Merritt also testified that the Aumbrella@ had a black handle like a gun. Merritt testified that the taller man wore Aa hooded jacket and shorts.@ Merritt testified that the men pulled the hoods up and that she did not get a good look at their faces before she heard a gunshot. On cross-examination, Merritt admitted that she could not identify the men=s eye or hair color or their weight. She also stated that the police had never asked her to identify suspects in a line-up or photo spread and was unsure if one of those men actually had fired the shot.
Appellant=s ex-girlfriend Tandra Gross, who also worked at the hospital, testified that she received a phone call from appellant around the time of the shooting. She also identified appellant as her ex-boyfriend in a photo array and in court but stated that she had not witnessed the robbery. On cross-examination, Gross testified that she could not say anything bad about appellant.
Officer Michael Dunn of the Houston Police Department, who had secured the crime the scene on June 18, testified that he had guarded evidence at the scene but had not spoken to any witnesses. On cross-examination, Dunn acknowledged that he neither saw nor obtained a description of any possible suspects. He also testified that he had never met appellant.
Officer Jonathan Halliday of the Houston Police Department testified that he arrived at the scene to protect a jacket found near the hospital until the Crime Scene Unit could collect it. On cross-examination, Halliday testified that he did not know who owned the jacket or who had discarded it. He also stated that he had not conducted DNA testing on the jacket.
Officer Patrick Hernandez of the Houston Police Department testified that when he arrived at the scene, police had discovered a shotgun hidden in a tree. After securing the surrounding area, Hernandez placed his jacket over the gun to protect it from the rain and preserve any fingerprints. On cross-examination, Hernandez testified that he did not investigate any suspects.
Officer James Kay, a crime scene investigator for the Houston Police Department, photographed and collected evidence from the robbery scene, including the jacket and the shotgun found near the hospital. Kay also collected a second sweatshirt, an umbrella, a stocking, and a pair of sunglasses. He testified that it was very rare to retrieve identifiable fingerprints. On cross-examination, Kay acknowledged that fingerprints were found on the sunglasses, but he did not know if they matched appellant=s. He stated that he did not know who the evidence belonged to or whether the stocking had been used in the robbery to conceal the perpetrator=s face. Kay admitted that officers often find fingerprints that solve crimes and that he had not seen any suspects in the case. On redirect examination, Kay explained the difficulties in obtaining quality fingerprints, especially from a gun trigger. On re-cross-examination, Kay testified that he found nothing at the scene that could have been used to conceal fingerprints, except perhaps the stocking. He stated that a person carrying a gun while fleeing a crime scene could leave a fingerprint.
Officer Norman Kiesewetter of the Houston Police Department inspected Meremikwu=s minivan and lifted two latent fingerprints. On cross-examination, Kiesewetter testified that he did not process the van until seven days after the robbery and did not know how many people had been in the van in the interim. He also did not know how many suspects were under investigation.
Officer Raphael Saldivar of the Houston Police Department conducted the fingerprint analysis. Saldivar testified that the fingerprint found on the sunglasses did not belong to appellant. The fingerprints lifted from the other pieces of evidence were not identifiable. On cross-examination, Saldivar admitted that Aif there was any way . . . to connect these prints to Mr. Robinson, [he] would have done that.@ He stated that he was one-hundred percent sure that the fingerprint found on the sunglasses did not belong to appellant. Saldivar stated that because the fingerprints lifted from the van door were not identifiable, they could not be connected to anyone. Saldivar testified that he compared the fingerprints only to appellant=s but explained that if he had other suspects= fingerprints, he could attempt to compare them with those found on the evidence.
Darryl Stein, a firearms inspector with the Houston Police Department, inspected the gun found at the scene. On cross-examination, Stein confirmed that the gun was not loaded and admitted that he did not know how long the gun had been nonoperational.
Over defense counsel=s objection, and for the sole purpose of proving identity, the trial court allowed the State to present evidence that appellant had committed an aggravated robbery two weeks before Meremikwu was robbed. Psychiatric nurse Donna Edwards, who also used to work at Riverside Hospital, testified that on Friday, June 4, 2004, appellant robbed her in the same area of the parking garage where Meremikwu was shot. Edwards stated that she was leaving the hospital about 11:00 p.m. with a security guard when she noticed a man following her. When she turned around, the man pointed a silver, squarish pistol at her and demanded that she give him her purse. Edwards testified that the man was wearing a blue hooded sweatshirt with the hood down, jeans, and a wool cap. She also stated that she saw the man=s face clearly, particularly his eyes, and that he was not wearing glasses. According to Edwards, the man was screaming AWhere is the money?@ and was waving the gun in a crazed manner. Edwards also stated that when the security guard tried to approach, the man threatened to shoot him; however, when Edwards gave the man her purse, he grew calm and then ran down the street. Edwards identified appellant in a photo spread and in court as the man who had robbed her that night and stated that she was positive about her identification.
Appellant argues that the trial court erred in admitting evidence of the extraneous offense on the basis of showing identity because identity was not an issue in the case. He also argues that the offenses are not sufficiently similar to constitute Ahandiwork@ and that the prejudice outweighs the probative value.
Identity Was An Issue
Texas Rule of Evidence 404(b) prohibits the introduction of extraneous bad acts to show character conformity but provides that such evidence may be admissible to show Amotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.@ Tex. R. Evid. 404(b); Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). An extraneous offense may be admissible to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). Cross-examination of State=s witnesses can raise the issue of identity, such as when the identifying witness is impeached on a material detail of the identification or about the conditions surrounding the offense charged and the witness=s identification of the defendant in that situation. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). A material detail is one that is Arelevant to the reliability of the identification.@ Page, 137 S.W.3d. at 79. That the impeachment was not particularly damaging or effective in light of all the evidence presented is not the question; the question is simply whether impeachment occurred that raised the issue of identity. Id.
We review a trial court=s decision to admit evidence under Rule 404(b) under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Appellant first contends that the trial court erred in admitting Edward=s testimony because identity was not an issue in the case. We disagree. Defense counsel=s cross-examination of Merritt, Jones, and Ike revealed that police had never asked them to look at a line-up or photo spread because they could not provide detailed information about the two men. Additionally, Merritt admitted that she could not identify the men=s eye or hair color or weight, and neither she nor Jones was sure if one of the men actually had fired the shot. Furthermore, while Henderson testified on cross-examination that the shorter man was not wearing a hood, Jones was unsure whether one or both men had worn hoods. She also testified that the hospital was located in a high-crime area. Defense counsel=s cross-examination of Meremikwu suggests that Meremikwu had an ulterior motive to positively identify appellant as the perpetrator because she had hired a civil attorney and was contemplating suing appellant individually. Finally, the cross-examination testimony of nearly all of the officers involved in the investigation reveals the lack of fingerprint or other physical evidence linking appellant to the robbery.
The discrepancies about whether the perpetrator wore a hood, the eyewitnesses= inability, with the exception of Meremikwu, to positively identify appellant, the fact that the hospital was in a high-crime neighborhood, the lack of incriminating physical evidence, and defense counsel=s attempt to establish Meremikwu=s ulterior motive to lie illustrate counsel=s efforts to show that someone other than appellant could have committed the robbery. Furthermore, counsel did not offer an alternative explanation for these lines of questioning, and none is apparent. See Page, 137 S.W.3d at 78 (stating that the question of whether cross-examination raised the issue of identity may best be answered by asking: AIf it was not about identity, what was it about?@). In light of these specific facts, we hold that identity was an issue and limit our holding to appellant=s case. See id. (noting that cross-examination suggesting that 265-pound defendant was not victim=s 200-pound assailant raised issue of identity when counsel offered no alternative reason for such questioning and simply denied making identity an issue); Lane, 933 S.W.2d 504 at 519 (stating that Athe issue of identity was also raised by the evidence that the DNA test results could be interpreted as excluding appellant@); Carter v. State, 145 S.W.3d 702, 709 (Tex. App.CDallas 2004, pet. ref=d) (noting that defense strategy aimed at undermining a witness=s identification raises the issue of identity).
Offenses Are Sufficiently Similar To Constitute Appellant=s Handiwork
Appellant also contends that the offenses are not sufficiently similar to constitute his handiwork. To be admissible to show identity, an extraneous offense must also be so similar to the charged offense that the offenses are marked as the defendant=s handiwork. Lane, 933 S.W.2d at 519. Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Id. Appellate courts should consider both the specific characteristics of the various offenses and the time interval between them. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002).
We believe that the two offenses are sufficiently similar to constitute appellant=s handiwork. Both Edwards and Meremikwu identified appellant as the robber. Although the robberies occurred at different times of dayCone at 6:00 p.m. and one at 11:00 p.mCthey occurred on consecutive paydays in the same area of the parking garage and both victims were nurses who worked at the hospital. Furthermore, in both instances, the robber wore a hooded sweatshirt, wielded a gun, and demanded: AGive me the money@ or AWhere is the money?@ The fact that the robber may have used different guns, may not have been wearing glasses, and was alone when he attacked Edwards but had an accomplice when he attacked Meremikwu do not necessarily outweigh the similarities between the two offenses. See Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (commenting that Athe mere fact that [the accused] was wearing a green sweater and blue jeans and a mustache during the primary offense and a red sweater and black slacks and had no mustache during the subsequent extraneous offense cannot be all that important standing alone@); see also Thomas v. State, 126 S.W.3d 138, 146 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (commenting that Athe extraneous offense and the charged offense . . . can be different offenses, so long as the similarities . . . are such that the evidence is relevant@ and upholding the trial court=s admission of an extraneous offense that occurred eleven months before the charged offense when an intruder used different methods to break into the victims= homes and sexually assaulted the first victim but left pornographic photographs on the second victim=s porch). Therefore, because its decision does not lie outside the zone of reasonable disagreement, the trial court did not abuse its discretion by admitting the extraneous offense.
Waiver of 403 Argument
Appellant also argues that the trial court erred because the prejudicial effect of the extraneous offense outweighs its probative value. However, appellant has failed to preserve this issue for appellate review. According to the Court of Criminal Appeals= decision in Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990):
Once the trial court rules that the evidence has relevance apart from character conformity, [it] has ruled on the full extent of the opponent=s objection. Error is preserved as to whether the evidence was admissible under Rule 404(b) . . . . [A]n objection that proffered evidence amounts to proof of an >extraneous offense= will no longer suffice, by itself, to invoke a ruling from the trial court whether the evidence, assuming it has relevance apart from character conformity, is nevertheless subject to exclusion on the ground of unfair prejudice. Further objection based on Rule 403 is now required.
Defense counsel failed to object on Rule 403 grounds, insisting only that identity was not an issue in appellant=s case. Accordingly, appellant has waived this argument. Tex. R. App. P. 33.1(a)(1)(A).
In conclusion, the trial court did not err by admitting Edward=s testimony. Because we hold that the trial court did not err, we need not address whether appellant was harmed. We overrule appellant=s sole point of error and affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed May 25, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).