Trent Mason v. State

Affirmed and Opinion filed October 31, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00054-CR

TRENT MASON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1203977

OPINION

In six issues, appellant Trent Mason appeals his conviction for capital
murder, complaining of insufficient evidence to sustain his conviction, violation of
his right to confront and cross-examine witnesses, errors during the State’s closing
argument, admission of improperly suggestive photo spread identifications,
erroneous admission of extraneous offense evidence, and jury charge error. We
affirm.
 Background

Shortly after midnight on January 9, 2009, Randi Johnson returned home
from work to his apartment in Humble, Texas. At about 1:00 a.m., Johnson heard a
noise on his balcony, looked out, and saw a man wearing a red shirt and dark hat,
whom Johnson later identified—both in a pretrial photo lineup and in court—as
appellant. Someone then kicked in Johnson’s front door, and Johnson testified at
trial that appellant and two other men entered the apartment. According to
Johnson, appellant had a “.38 snubnose” revolver and yelled at Johnson to “get
facedown.” Johnson testified that appellant and the two other men then robbed him
at gunpoint. Johnson jumped off the second floor balcony of his apartment. During
his escape, he was shot in the leg.

Johnson’s neighbor, Joel Mitchell, was in his own apartment when he heard
two or three gunshots and “peek[ed]” outside of his sliding glass door. Mitchell
saw three men running toward what Mitchell described as a Ford Ranger with
“faded kind of greenish paint.”1 The men saw Mitchell, and one of them fired at
him. The bullet shattered the sliding glass door. Another neighbor, Deidra Mack,
heard gunshots and Johnson’s door being kicked in. She saw two assailants fleeing
who fired shots at her. She testified one assailant was wearing a red shirt and both
were wearing hats—one was wearing a black hat, but she could not say which. The
two assailants got into a truck with a third person who was the driver.

Approximately eight minutes later, Norma Cruz-Ordonez, her husband, and
her cousins returned to their apartment, which was approximately one block away
from Johnson’s apartment, after picking Norma up from work. At the time, Norma
lived in the apartment with her husband, four cousins, three brothers, and two

1
A stolen blue Ford Ranger was recovered later from the parking lot at 412 Bender Street
where the offense for which appellant was convicted occurred.

2
children. Shortly after Norma and her family entered their apartment, an armed
man kicked open their door. Norma identified the man as wearing a red shirt and a
black cap. She “g[ot] a good look at his face.” The man immediately pointed a gun
at her, and two more men entered the apartment.2 They yelled at Norma and her
husband to lie down on the ground and hand over their wallets. One of them tried
to shoot Norma’s brother, Alberto, but the gun would not discharge, so he hit
Alberto in the face with the butt of the gun. Alberto did not see his assailant’s face,
but testified the assailant was wearing a white shirt.

Norma’s other brother Mauricio, who had been upstairs, heard the yelling
and came downstairs. As he was walking down the stairs, he was shot and killed.
Two shots were fired. At trial, Norma identified appellant as the man in the red
shirt who killed Mauricio. Alberto testified that the person who shot at Mauricio
the second time was wearing a red shirt, but Alberto did not see who fired the first
shot. Meanwhile, Norma’s third brother, Javier, ran down the stairs behind
Mauricio, and the man in the red shirt shot Javier in the shoulder. Alberto could not
identify any of the assailants.

Norma’s husband, Eliseo Mendiete, also testified. In both a pretrial photo
lineup and in court, Mendiete identified appellant as the man who entered his home
while wearing a red shirt and a black “handkerchief or rag” on his head. Mendiete
also testified that this man shot and killed Mauricio. Mendiete further identified
appellant’s cousin, Jeremy Wright, as a participant in the robbery.3

Almost an hour after these crimes occurred, a surveillance camera at a Jack
In The Box fast food restaurant recorded a gold Chrysler Concorde at the drive-
2
There is conflicting evidence in the record as to whether the third man entered the
apartment or stayed outside as the “lookout.” Norma testified the third man looked younger than
the others.
3
The man wearing the white shirt matched Wright’s description.

3
through. On the video, three people are in the vehicle. Appellant is driving,
wearing a red shirt, and a woman is in the front passenger seat. One passenger can
be seen in the backseat, but it is unclear whether there are other occupants in the
vehicle.4 The vehicle was registered to Wright’s girlfriend, Jessica Winn. In the
video, the backseat passenger, who is wearing a white shirt, opens the car door and
places a cell phone on the ground. The cell phone had been stolen from Johnson’s
apartment.5 Winn told an officer she thought the backseat passenger was a person
named “Marquis.”6 Winn also identified the female passenger as Toni McClure,
appellant’s girlfriend. Appellant later testified that one backseat passenger was
Joshua Manning.

Winn consented to a search of her vehicle.7 When officers arrived at its
location, Manning was there. He immediately told an officer, “I didn’t kill
anybody.” Manning confessed that he was involved in the two robberies. He told
an officer that his role at Johnson’s apartment was to retrieve items from the
apartment and his role at Mauricio’s apartment was to stand by the door and be the
“lookout.” Fingerprints on the Concorde matched Appellant’s and Wright’s, and
appellant’s DNA could not be excluded from gloves found inside the vehicle.8

Appellant sometimes stayed with Wright and their uncle. The murder
weapon was found in a room in their uncle’s home. Appellant, Wright, and
4
An employee from Jack In The Box testified that there were four people in the vehicle:
a male driver and female front seat passenger and two male backseat passengers.
5
Another patron of Jack In The Box picked the cell phone up and gave it to the employee
who was working the drive-through. He took the phone home, intending to return it to the owner.
Officers later recovered the phone from the Jack In The Box employee.
6
Police investigated two possible suspects named “Marquis,” but eliminated them as
suspects.
7
Winn was in jail when officers contacted her to obtain permission to search the car.
8
The gloves contained a mixture of DNA from three or more people. Neither Wright’s
nor appellant’s DNA could be excluded from those test results.

4
Manning were arrested.

Appellant testified in his defense to another version of events—that he and
McClure were staying at a duplex owned by appellant’s cousin, Calvin Beasley,
when Wright drove to the duplex in Winn’s Concorde. Manning and “Marquis”9
also pulled up in a stolen truck. Appellant asked Wright to take him and McClure
to get something to eat. Wright assented and asked appellant to drive the Concorde.
Appellant followed Manning and Marquis, who were planning to abandon the
stolen truck. After they arrived at an apartment complex, Wright got out of the car
and into the truck. Ten to fifteen minutes after the truck drove off, appellant heard
two shots and saw Wright and Manning running toward him, yelling, “Let’s go!”
They got into the car, and as appellant was driving away, he saw guns in the
backseat next to Wright, who was counting money. Wright told appellant, “I
believe I shot somebody.” Appellant drove straight back to Beasley’s house. After
they arrived at the house, McClure said she still was hungry, so she and appellant
went with Wright and Manning to Jack In The Box.

After trial and several days of deliberations, a jury found appellant guilty of
capital murder, and the trial court sentenced him to life imprisonment without
parole.

Discussion

In six issues, appellant challenges the sufficiency of the evidence to sustain
his conviction and complains of a violation of his right to confront and cross-
examine witnesses, error during the State’s closing argument, admission of
improperly suggestive photo spread identifications, erroneous admission of
extraneous offenses, and jury charge error. We affirm.

9
Appellant did not know Marquis’ last name.

5
 I. Evidence Legally Sufficient to Support Conviction

In his first issue, appellant challenges the legal and factual sufficiency of the
evidence supporting his conviction. We apply only one standard to evaluate
whether the evidence is sufficient to support a criminal conviction beyond a
reasonable doubt: legal sufficiency.10 Temple v. State, 390 S.W.3d 341, 360 (Tex.
Crim. App. 2013); see also Haggerty v. State, 14-12-00461-CR, 2013 WL
3477571, at *2 (Tex. App.—Houston [14th Dist.] July 11, 2013, no. pet.).
Therefore, when reviewing the sufficiency of the evidence, this Court considers all
of the evidence in the light most favorable to the jury’s verdict to determine, based
on that evidence and the reasonable inferences therefrom, if a jury was rationally
justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360
(citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Although we consider
everything presented at trial, we do not reevaluate the weight and credibility of the
evidence or substitute our judgment for that of the factfinder. Williams v. State,

10
Appellant asserts a court of appeals’ refusal to review the factual sufficiency of the
evidence violates the Texas Constitution. See Tex. Const. art. V, § 6 (“[T]he decision of [Texas
Courts of Appeal] shall be conclusive on all questions of fact brought before them on appeal or
error.”); see also Temple v. State, 342 S.W.3d 572, 648 (Tex. App.—Houston [14th Dist.] 2010)
(Seymore, J., dissenting to denial of en banc rehearing), aff’d, 390 S.W.3d 341 (Tex. Crim. App.
2013). Although the Texas Constitution makes intermediate appellate courts’ factual sufficiency
determinations “final and conclusive” on the Court of Criminal Appeals, it does not prohibit the
Court of Criminal Appeals from deciding the proper application of the standard of review.
Temple, 342 S.W.3d at 626-27 (Brown, J., concurring to the denial of en banc rehearing). When
the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a
criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis.
Id. at 628; see also Green v. State, 350 S.W.3d 617, 629 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (Frost, J., concurring) (“Even if the justices of this court were to construe article V,
section 6 of the Texas Constitution to provide for a separate factual-sufficiency review of
[criminal convictions] by the courts of appeals . . . the Texas Constitution provides that the Court
of Criminal [Appeals’] construction of article V, section 6 is final and binding upon this court in
all criminal appeals.” (citing Tex. Const. art. V, § 5(a) (“[T]he Court of Criminal Appeals shall
have final appellate jurisdiction coextensive with the limits of the state, and its determinations
shall be final, in all criminal cases.”))). We thus are bound to follow the Court of Criminal
Appeals’ articulation of the standard of review set forth in Temple. See 390 S.W.3d at 360.

6
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury is the sole judge of
credibility and weight attached to the testimony of witnesses. Temple, 390 S.W.3d
at 360 (citing Jackson, 443 U.S. at 319). Our review includes both properly and
improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). We also consider both direct and circumstantial evidence, as well as
any reasonable inferences that may be drawn from the evidence. Id.

To prove capital murder under the circumstances of this case, the State was
required to prove that appellant intentionally caused Mauricio’s death in the course
of committing robbery. Tex. Penal Code §§ 19.02(b), 19.03(a)(2). A person
commits robbery if, while in the course of committing theft, he intentionally or
knowingly threatens someone or places someone in fear of imminent bodily injury,
or intentionally, knowingly, or recklessly causes bodily injury to someone. Id.
§ 29.02(a). The jury was instructed that it could find appellant guilty as a principal
or under the law of parties. A person may be convicted as a party to an offense if
the offense is committed by his own conduct, by the conduct of another for which
he is criminally responsible, or both. Id. § 7.01(a). As relevant under these
circumstances, a person is criminally responsible for the conduct of another if,
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a). When the court’s charge authorizes the jury to convict on several
different theories, as here, the verdict must be upheld if the evidence is sufficient
as to any one of the theories. See Martinez v. State, 129 S.W.3d 101, 106 (Tex.
Crim. App. 2004).

While appellant argues this is a case of mistaken identity, ample evidence
supports the jury’s verdict. Less than ten minutes before Mauricio was murdered,
Johnson was shot and robbed in his apartment that was one block away from

7
Mauricio’s. Johnson testified that appellant was carrying a “.38 snubnose,” which
was the type of weapon that killed Mauricio. Johnson identified appellant both in a
pretrial photo lineup and later at trial as the man wearing a red shirt and dark hat
who shot him. Johnson’s neighbor, Mack, also identified one of Johnson’s
assailants as a male wearing a red shirt. She also testified one of the assailants was
wearing a black hat, although she could not remember which one.

Norma described her brother’s shooter as wearing a red shirt and black cap.
She “g[ot] a good look at his face” and identified appellant at trial as the man who
killed Mauricio. Alberto testified that the man he saw shoot at Mauricio was
wearing a red shirt. Mendiete likewise identified Mauricio’s shooter as wearing a
red shirt and black “handkerchief or rag” on his head. Mendiete positively
identified appellant as the shooter both in a pretrial photo lineup and in court.
Although appellant’s defense at trial was that the State’s witnesses had mistaken
him for Wright, Mendiete also positively identified Wright in a pretrial photo
lineup as another participant in the robbery.11

Less than an hour after the shooting, appellant was videotaped at Jack In The
Box wearing a red shirt and driving a car with an occupant who abandoned
Johnson’s stolen cell phone. Appellant admitted that he was the driver of the car.
His DNA could not be excluded from gloves that were inside the car, and his
fingerprints were on the car.

Appellant admitted that he was with Wright and Manning and a stolen truck
at Johnson’s apartment complex near where Norma’s family was robbed and
Mauricio was murdered. Mitchell’s testimony describing the truck used as a
“getaway” from Johnson’s robbery resembled the vehicle that was found at

11
An officer testified that Mendiete positively identified Wright in a pretrial photo
lineup.

8
Mauricio’s apartment complex.12 The murder weapon was recovered subsequently
at the home of appellant’s uncle, where appellant and Wright sometimes stayed.

Appellant argues the following facts show the evidence supporting his
conviction is legally insufficient: there were discrepancies between the police
report and witness testimony, Norma could not remember certain details about the
shooter and his weapon, Alberto could not identify any of the assailants and was
confused about certain details of the crime, appellant’s boots were a larger size
than the shoes obtained from the Concorde, and the only DNA evidence linked to
appellant was found in the work gloves in the Concorde. However, any
inconsistencies in the evidence, and specifically in the witnesses’ identification of
defendants, are matters to be weighed by the jury in its determination of guilt and
innocence and do not alone render the evidence insufficient. See Amador v. State,
376 S.W.3d 339, 345 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also
Kesaria v. State, 148 S.W.3d 634, 641 (Tex. App.—Houston [14th Dist.] 2004)
(“[A] decision is not manifestly unjust merely because the jury resolved conflicting
views of the evidence in favor of the State.”), aff’d, 189 S.W.3d 279 (Tex. Crim.
App. 2006). Moreover, we give great weight to the fact that Norma and Mendiete
both positively identified appellant as Mauricio’s killer. Cf. Kesaria, 148 S.W.3d at
641 (noting positive identification by the victim of a crime is “to be given great
weight”).

Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude the evidence is legally sufficient to support the jury’s finding that

12
Mitchell described the vehicle as a “greenish” Ford Ranger when it was actually blue.
An officer testified it is not uncommon for witness statements to vary from the actual color of a
vehicle involved in a crime, so Mitchell’s statement that the truck was “greenish” was not
surprising.

9
appellant committed capital murder. We overrule appellant’s first issue.

II. Admitting Custodial Statement Harmless and Excluding Statement
to Inmate Not Error
In his second issue, appellant complains that the trial court abused its
discretion in (1) allowing the State to elicit testimony from an officer regarding
Manning’s custodial statement about the robbery at Mauricio’s apartment and (2)
preventing appellant from eliciting Manning’s statement to another inmate that
Manning had shot a man. We address each issue in turn.

A. Testimony Regarding Manning’s Custodial Statement

An officer testified that when the search warrant was executed on the
Concorde, which was located at a residential address, Manning was there. When
the officer saw Manning, the officer said, “You’re the kid from the video. I need to
talk to you.” Manning immediately volunteered, “I didn’t kill anybody.”
Appellant’s attorney did not object to this testimony.

The officer subsequently took Manning to the police station where he made
a statement after his Miranda rights were administered to him by a judge.13
Defense counsel objected to the admissibility of Manning’s custodial statement on
the grounds that it violated appellant’s Sixth Amendment right to confront the
witness and is hearsay. Defense counsel articulated his concern that Manning’s
claim that he was not the shooter would incriminate appellant.

The trial court allowed the State to elicit the following testimony regarding
Manning’s custodial statement over defense counsel’s objection:

[State:] Did you ask [Manning] about his involvement in
[robbing Johnson]?
13
A judge was required to administer Manning’s Miranda rights because he was a minor.
See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).

10
 [Officer:] Yes, ma’am.

[State:] What did he say his involvement was . . . ?

[Officer:] His job was to get items out of the apartment.

....

[State:] Did you ask him about his involvement at [Mauricio’s
apartment]?

[Officer:] Yes, ma’am.

[State:] And what did he say?
[Officer:] He told me he was the lookout. He stood by the door.
On appeal, appellant argues that the trial court’s admission of the officer’s
testimony with regard to Manning’s custodial statement violated appellant’s right
under the Sixth Amendment of the United States Constitution to confront Manning
and cross examine him regarding whether he was the shooter.14

Assuming without deciding that the officer’s testimony regarding Manning’s
custodial statement was erroneously admitted, a violation of a defendant’s right to
confrontation is subject to harmless error analysis. Rubio v. State, 241 S.W.3d 1, 3
(Tex. Crim. App. 2007); Wilson v. State, 296 S.W.3d 140, 149 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d). Thus, even if the admission of the testimony
were erroneous, we nevertheless will affirm the conviction if we determine beyond
a reasonable doubt that the alleged error did not contribute to appellant’s

14
Under the Confrontation Clause made applicable to the states through the Fourteenth
Amendment, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013)
(citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). In Crawford v. Washington, the Supreme
Court interpreted this to mean that “testimonial” evidence is inadmissible at trial unless the
witness who made the testimonial statement either takes the stand to be cross-examined or is
unavailable and the defendant had a prior opportunity to cross-examine him. Id. (citing Crawford
v. Washington, 541 U.S. 36, 54 (2004)).

11
conviction. Wilson, 296 S.W.3d at 149; see also Tex. R. App. P. 44.2(a).

In determining whether the admission of the statement was harmless beyond
a reasonable doubt, we consider: (1) the importance of the statement to the State’s
case; (2) whether the statement was cumulative of other evidence; (3) the presence
or absence of evidence corroborating or contradicting the statement on material
points; and (4) the overall strength of the State’s case. Wilson, 296 S.W.3d at 149.
In addition to those factors, we also may consider the source and nature of the
error, the extent of the State’s emphasis on the evidence, and the relative weight
the jury may have assigned to the evidence as compared with the balance of the
remaining evidence relevant to the issue. Scott v. State, 227 S.W.3d 670, 690 (Tex.
Crim. App. 2007); Wilson, 296 S.W.3d at 149. Finally, we consider any other
factor contained in the record that might shed light on the probable impact of the
evidence on the minds of average jurors. Clay v. State, 240 S.W.3d 895, 904 (Tex.
Crim. App. 2007); Wilson, 296 S.W.3d at 149.

We are not simply to decide whether the jury verdict enjoyed evidentiary
support. See Scott, 227 S.W.3d at 690; see also Wilson, 296 S.W.3d at 149.
Instead, the question is whether the alleged constitutional error was actually a
contributing factor in the jury’s deliberations in arriving at a verdict. Scott, 227
S.W.3d at 690; Wilson, 296 S.W.3d at 149. Thus, Confrontation Clause error does
not require reversal unless there is a reasonable possibility that, within the context
of the entire trial, the perceived error “moved the jury from a state of non-
persuasion to one of persuasion on a particular issue.” Scott, 227 S.W.3d at 690;
Wilson, 296 S.W.3d at 149.

After reviewing these considerations, we are persuaded beyond a reasonable
doubt that the jury would have found appellant guilty of capital murder even if the
trial court had not admitted the officer’s testimony about Manning’s custodial

12
statement. See Clay, 240 S.W.3d at 905; see also Wilson, 296 S.W.3d at 149.

Not important to the State’s case. The statement—regarding Manning’s
removing items from Johnson’s apartment and being the “lookout” in the robbery
during which Mauricio was killed—was not particularly important to the State’s
case. The statement did not incriminate appellant because it did not place him at
the crime scene—it merely supported an inference that Manning was not the
shooter. The State did not focus on Manning’s custodial statement during its
closing argument or otherwise throughout the lengthy trial proceedings. See
Wilson, 296 S.W.3d at 149. Instead, the State heavily emphasized the other
witnesses’ testimony identifying appellant as the shooter and the evidence linking
appellant to both robberies, such as his presence in the car with Wright and
Manning when Johnson’s cell phone was abandoned. See Clay, 240 S.W.3d at 905;
see also Wilson, 296 S.W.3d at 149.

Corroborated by and cumulative of other evidence. Manning’s
statements were corroborated by and cumulative of other evidence. First, the
officer testified that Manning said, “I didn’t kill anybody,” and defense counsel did
not object to that statement. Second, Norma and Mendiete both identified appellant
as the shooter. Third, the numerous descriptions of the shooter in the red shirt and
black head covering matched appellant’s description. Fourth, Manning was the
only party to the crime who was not identified by an eyewitness, which
corroborates his story that he did not enter Mauricio’s apartment.

Strength of the State’s case without the Statement. Finally, as set forth
above, overwhelming evidence regarding appellant’s identity and participation in
the robberies supported the jury’s finding that appellant committed capital murder,
whereas Manning’s custodial statements established little, if anything, negative
about appellant that was not also well established by the properly admitted

13
evidence. See Clay, 240 S.W.3d at 905-06; see also Wilson, 296 S.W.3d at 150. In
Clay, the Court of Criminal Appeals stated:

The State’s case establishing appellant’s guilt of aggravated robbery,
either as a principal or as a party, was straightforward and strong—
unshakeable eyewitnesses placing him in the vicinity of the crime and
shortly thereafter at the scene of the crime itself, together with other
circumstances strongly indicating his guilt—and leaves us firmly
convinced that in the absence of the erroneously admitted testimony, a
reasonable jury would not have found the State’s case significantly
less persuasive.

240 S.W.3d at 905. Similarly, here, the State presented a strong case establishing
appellant’s guilt, including eyewitness testimony placing him in the vicinity of the
crime and at the scene of the crime, along with other circumstances strongly
indicating his guilt. Accordingly, the record indicates the jury probably assigned
very little weight, if any, to Mannings’ custodial statement. See Wilson, 296
S.W.3d at 150.

After considering all of the harmless error factors, we find no reasonable
probability that the trial court’s alleged Confrontation Clause error “moved the jury
from a state of non-persuasion to one of persuasion” on the issue of appellant’s
guilt. See id. at 149. We hold the admitted evidence was harmless. We turn to
appellant’s second complaint regarding whether the trial court erred in excluding
evidence of Manning’s statement that he shot a man.

B. Testimony Regarding Manning’s Statement that He Shot a Man

Appellant also complains that the trial court excluded testimony from an
inmate that Manning told the inmate he had chased down and shot a man. At trial,
appellant proffered the following testimony from Jimmi Butler, who was housed in
a cell next to Manning’s:

“[Manning] basically told me that—he said that he had killed
14
 somebody and he signed [a plea bargain]. And the State wanted him
to testify against his codefendant [appellant] that he did it. But he said
that [appellant] didn’t do it.”

“Joshua Manning told me that he had killed a Mexican. He told me he
chased him down . . . [i]nside [a residence].”

“He told me that the State believed that [appellant] had—had
committed the murder or offense or whatever. And the State wanted
him to testify that he did it.”

Manning put teardrop tattoos on his face, which signified that he had
killed someone.

“I cut Josh off . . . when he . . . went to tell me that he was guilty of
this . . . crime . . . because I didn’t want to hear it.”

“[Manning] didn’t say [appellant] was in the house.”15

“I think somebody else was with him, but he didn’t . . . tell me. I don’t
recall him telling me specifically anybody [sic] name. But I believe
somebody else was with him.”

“I can’t give you no timeframe.”

“[Manning] told me he was just robbing the dude. . . . He said he tried
to run. He said he chased him down.”

“[Manning] said [the man he shot] ran inside the house.”

“[Manning] didn’t clarify what type of house [they were in]. I’m
pretty sure it wasn’t no—no trailer though.”

Manning did not tell Butler any other details of the crime. The trial court excluded
the testimony on the ground that it was not corroborated by “circumstances that
clearly indicate the trustworthiness of the statement.”

Appellant argues this evidence was admissible as a statement against interest

15
Appellant misstated the record in his appellate brief in stating, “Manning told Butler
that appellant was not even in the house when the robbery and shooting occurred.”

15
under Texas Rule of Evidence 803(24). A statement against interest in the criminal
context is an exception to the hearsay rule that tends to subject the declarant to
criminal liability. Tex. R. Evid. 803(24); see also Walter v. State, 267 S.W.3d 883,
890 (Tex. Crim. App. 2008). The rule sets out a two-step foundation requirement
for admissibility. Walter, 267 S.W.3d at 890. First, the trial court must determine
whether the statement, considering all the circumstances, subjects the declarant to
criminal liability and whether the declarant realized this when he made the
statement. Id. at 890-91. Second, the court must determine whether there are
sufficient corroborating circumstances that clearly indicate the trustworthiness of
the statement. Id. at 891. Both statements that are directly against the declarant’s
interest and collateral “blame-sharing” statements may be admissible under rule
803(24) if corroborating circumstances clearly indicate their trustworthiness. Id. at
896; see also Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011,
pet. ref’d).

The determination of whether corroborating circumstances clearly indicate
trustworthiness lies within the trial court’s sound discretion. Cunningham v. State,
877 S.W.2d 310, 313 (Tex. Crim. App. 1994). When analyzing the sufficiency of
corroborating circumstances, a number of factors are relevant: (1) whether the guilt
of the declarant is inconsistent with the guilt of the defendant; (2) whether the
declarant was so situated that he might have committed the crime; (3) the timing of
the declaration; (4) the spontaneity of the declaration; (5) the relationship between
the declarant and the party to whom the statement was made; and (6) the existence
of independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex.
Crim. App. 2004). The trial court may consider evidence which undermines the
reliability of the statement as well as evidence corroborating its trustworthiness.
Cunningham, 877 S.W.2d at 312; see also Bingham v. State, 987 S.W.2d 54, 58

16
(Tex. Crim. App. 1999).

Assuming without deciding that the excluded statement subjected Manning
to criminal liability,16 weighing the factors above, we conclude the trial court was
within its discretion to conclude there are not sufficient corroborating
circumstances that clearly indicate the trustworthiness of the statement. First,
Manning’s description of the shooting was not sufficiently detailed to determine
whether he was referring to the same offense for which appellant was charged.
Butler cut off Manning’s story because Butler “didn’t want to hear it.” Manning
did not provide details regarding when or where the shooting purportedly
happened, whether there were witnesses, what type of gun he used, where the
bullet struck the victim, or whether others participated in the crime. This lack of
certainty regarding Manning’s statement does not show whether his guilt is
inconsistent with appellant’s or that Manning was so situated that he might have
committed this crime. See Prince v. State, 192 S.W.3d 49, 59 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) (holding guilt of declarant was inconsistent
with guilt of defendant when, among other things, evidence did not indicate
declarant’s location or situation at the time of murder, declaration was made
several months after the defendant was arrested for murder, and statement did not
indicate declarant had intimate familiarity with the crime, revealing only general
reports of the crime).

Second, the timing and the relationship between Manning and Butler,
another inmate, indicates that Manning could have made the statement to appear
tougher among the other, older inmates. Manning told Butler that he already had

16
Manning apparently pleaded guilty to murder in connection with the robbery. It is
unclear from the record whether he had done so by the time he made the statement to Butler,
although appellant proffered testimony from Butler that Manning already had pleaded guilty
when he made the statement.

17
entered into a plea bargain with the State and was aware that he was facing
significant jail time. Thus, although Manning made the spontaneous statement at a
time when he had no motive to minimize his involvement in the crime, he may
have had a motive to bolster his reputation with the other inmates.

Third, and perhaps most importantly, even if Manning’s statement that he
was the shooter referred to this case, it is not corroborated by the facts presented at
trial. Manning said that he shot a man during the course of a robbery while chasing
him into a house. By contrast, the evidence presented at trial was that Mauricio
was inside an apartment coming down the stairs when he was shot. He was not
“chased down” by his assailant into a house. In addition, Mendiete and Norma both
positively identified appellant as the shooter, and Alberto testified the man in the
white shirt, whose description matched Wright’s, was the person who attacked
him. The murder weapon was found at the house where appellant and Wright—not
Manning—sometimes stayed. Moreover, all three witnesses testified a third
perpetrator served as the lookout, whom Norma testified was “a little younger”
than the others, which pointed to Manning. See Gonzalez v. State, 296 S.W.3d 620,
629 (Tex. App.—El Paso 2009, pet. ref’d) (holding timing of statement combined
with contradictory testimony of two witnesses was not sufficiently convincing to
clearly indicate its trustworthiness).

After carefully weighing the factors and the evidence, we conclude they
support the trial court’s finding that Manning’s statement was unreliable. Because
there were insufficient corroborating circumstances to indicate the trustworthiness
of Manning’s statements, we conclude appellant failed to show the trial court
abused its discretion.17 See Prince, 192 S.W.3d at 59; see also Auston v. State, 892

17
Appellant also argues, “If Manning was [sic] on trial instead of appellant, the State
would have sought to introduce Butler’s testimony against Manning under art. 38.075, which
clearly lowers the burden of ‘corroboration’ found in T.R.E. [sic] 803(24).” Assuming the truth
18
S.W.2d 141, 144 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (“Under such
circumstances where the factors indicating untrustworthiness are at least equal to
or greater than those offered to support the trustworthiness of the alleged
statement, we cannot, as requested, find that corroborating circumstances clearly
indicate trustworthiness.”).

Appellant also argues the trial court abused its discretion in excluding
Manning’s statement to Butler (1) to rebut the State’s evidence of Manning’s
statement to the officer that Manning was not the shooter and (2) in violation of
appellant’s right under the Confrontation Clause of the United States Constitution
to present a complete defense.18 Appellant offered Manning’s statement to Butler
as a statement against interest, but expressly did not offer it to rebut the State’s
evidence of Manning’s statement to the officer.19 Moreover, appellant did not
complain in the trial court that the exclusion of the evidence violated his right to
present a complete defense. Appellant thus has waived these arguments on appeal.
See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing

of appellant’s assertion, it is unclear how it would support a holding that the testimony was
admissible in this case.
18
A defendant’s constitutional right to a meaningful opportunity to present a complete
defense is rooted in the Fourteenth Amendment’s Due Process Clause and the Sixth
Amendment’s Compulsory Process and Confrontation Clauses under the United States
Constitution. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
19
Defense counsel stated,
[A]s to whether or not it’s hearsay, it is. But it clearly is a statement against penal
interest. . . . But our position is . . . that we’re not here to impeach Joshua
Manning, as much as we are offering a defensive theory for . . . [appellant].
....
[W]e’re offering under the 802, the exception to hearsay Rule 24, statement
against penal interests—or statement against interests. Clearly the declarant in this
case, Joshua Manning, has made a statement that exposes him to criminal
liability. And it is sufficiently corroborated by the evidence in this case.
(Emphasis added.)

19
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (noting a defendant
forfeits a claim that he was denied the right to present a defense under the United
States and Texas Constitutions by failing to lodge proper objection at trial)); see
also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (acknowledging
to avoid waiver on appeal, party seeking to introduce evidence must object at trial
to trial court’s exclusion of evidence with an argument stating the “very complaint
that party is now making on appeal”).

For the foregoing reasons, we overrule appellant’s second issue.

III. No Error Regarding Closing Argument

In his third issue, appellant contends the trial court abused its discretion by
allowing the State’s attorney to ask the jurors to place themselves in the shoes of
the victim and to personally attack defense counsel. We conclude the first
complaint and part of the second were not preserved and the trial court did not
abuse its discretion in overruling the remainder of the second complaint.

During closing argument, the State’s attorney asked the jury to “imagine”
what it must have been like for Norma to experience the events that she did.
Appellant argues this was improper jury argument, but concedes defense counsel
did not object to it. Therefore, appellant has waived this complaint.20 See Cockrell
v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“[A] defendant’s failure to
object to a jury argument or . . . to pursue to an adverse ruling his objection to a
jury argument forfeits his right to complain about the argument on appeal.”); see

20
Appellant urges us to follow Boyington v. State, 738 S.W.2d 704 (Tex. App.—Houston
[1st Dist.] 1985, no pet.), in which the court of appeals reversed the defendant’s conviction
despite defense counsel’s failure to object to the State’s argument in which he asked the jurors to
put themselves in the place of the victims. Id. at 710. However, in that case, the court of appeals
held that defense counsel’s failure to object to the prosecutor’s argument constituted ineffective
assistance of counsel. Id. at 709-10. Ineffective assistance of counsel is not at issue here.

20
also Nadal v. State, 348 S.W.3d 304, 319 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d).

Appellant also argues the following statements by defense counsel during
closing argument were improper:

“And that’s another tactic by the defense, to point the finger
somewhere else but at their client”; and

“[D]on’t think about the dog and pony show that they did, to try to
direct you off the evidence that you know to point toward this man.”

Defense counsel objected to the first statement but not the second. Therefore,
appellant did not preserve error regarding the second statement. See Cockrell, 933
S.W.2d at 89; see also Nadal, 348 S.W.3d at 319. We thus only address whether
the trial court abused its discretion in failing to exclude the first statement.21

Jury argument must fall into one of four areas to be permissible:
(1) summation of evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Ayala v. State, 267
S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.] 2008, pet. filed). Even when an
argument exceeds the permissible bounds of these approved areas, an error will not
constitute reversible error unless, in light of the record as a whole, the argument is
extreme or manifestly improper, violative of a mandatory statute, or injects new
facts harmful to the accused into the trial proceeding. Ayala, 267 S.W.3d at 433. A
prosecutor runs the risk of going outside of these permissible areas when her

21
Appellant also argues the State’s argument “presents a [Fourteenth Amendment] due
process claim because it so infected the trial with unfairness that . . . appellant’s conviction
constitutes a denial of protection guaranteed by the United States and Texas Constitutions.”
Appellant did not object to the State’s argument on this basis at trial and thus has waived this
argument on appeal. See Broxton, 909 S.W.2d at 918 (noting complaints, even of constitutional
magnitude, are waived on appeal if not called to trial court’s attention).

21
argument is made in terms of defense counsel personally and when the argument
explicitly impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998). However, we consider counsel’s remarks during final
argument in the context in which they appear. Ayala, 267 S.W.3d at 433.

Here, viewing the State’s argument in its entire context, the statement that
defense counsel’s strategy was a “tactic” to “point the finger somewhere else” was
not an attack on defense counsel. Rather, it was an answer to the argument of
opposing counsel that the witnesses had misidentified appellant as the shooter and
that forensic evidence did not incriminate appellant. See, e.g., Coble v. State, 871
S.W.2d 192, 205 (Tex. Crim. App. 1993) (concluding trial court did not abuse
discretion in overruling objection to prosecutor’s remark that defense counsel was
arguing “something ridiculous” in response to defense counsel’s argument); Pope
v. State, 161 S.W.3d 114, 126-27 (Tex. App.—Fort Worth 2004) (concluding
State’s references to defense counsel’s attacks on DNA evidence as “smoke and
mirrors” and “red herrings or rabbit trails” designed to throw the jury off and
cautioning the jury not to be “hoodwinked, . . . buffaloed, . . . [or] spooked” by the
defense’s arguments were proper responses to arguments of the defense), aff’d, 207
S.W.3d 352 (Tex. Crim. App. 2006); Gonzales v. State, 831 S.W.2d 491, 494 (Tex.
App.—Houston [14th Dist.] 1992, pet. ref’d) (holding prosecutor’s reference to
defense counsel’s argument as “rabbit trails” and “bunny trails” was proper
response to defense counsel’s argument). Thus, the trial court did not abuse its
discretion in overruling appellant’s objection to the statement.

We overrule appellant’s third issue.

IV. No Error in Admitting Evidence Regarding Pretrial Photo
Identifications
In his fourth issue, appellant argues that the trial court abused its discretion

22
in admitting evidence regarding pretrial photo identifications by Norma, Mendiete,
and Johnson. Appellant did not preserve error on his objection to the pretrial
identification by Norma.22 See Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim.
App. 1986) (requiring defendant to complain or object in the trial court to preserve
argument that pretrial identification was suggestive); see also Haq v. State, 01-11-
01057-CR, 2013 WL 1890260, at *6 (Tex. App.—Houston [1st Dist.] May 7,
2013, no pet.); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.—Houston [14th
Dist.] 1996, pet. ref’d). Accordingly, we address only appellant’s complaints
regarding his pretrial identifications by Mendiete and Johnson.

Appellant neither objected at trial to the witnesses’ in-court identifications
nor challenges them on appeal. The failure to complain or object in the trial court
to in-court identifications waives any complaint regarding the in-court
identifications on appeal. See Ballah v. State, No. 14-10-00460-CR, 2012 WL
19653, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet. ref’d) (mem. op.)
(citing Perry v. State, 703 S.W.2d 668, 670, 673 (Tex. Crim. App. 1986)).
Therefore, we consider only appellant’s arguments concerning the pretrial
identification procedures with regard to Mendiete and Johnson. See id.

22
Appellant objected to his pretrial identification by Mendiete by urging an oral motion
to suppress at trial. Appellant objected to his pretrial identification by Johnson during a hearing
in which the State proffered testimonial evidence by an officer regarding that photo lineup.
Norma testified that she viewed a photo lineup at the police station about a month after
the offense and identified someone. Conversely, two officers testified Norma did not identify
appellant in a pretrial photo lineup. According to the officers, Norma only viewed a photo lineup
at the police station on the morning after the offense, which did not include a picture of
appellant.
Appellant’s attorney objected to the admission of Norma’s pretrial identification on the
ground that “the evidence of confusion with [Norma], as to whether or not she was even shown a
photo spread, leads questions to the v[e]racity of the process.” This objection was too late
because it came after Norma’s testimony and one officer’s testimony regarding Norma’s viewing
of the photo lineup had been admitted. See Tex. R. App. P. 33.1 (requiring timely and specific
objection to preserve error).

23
 We review de novo the question of whether a pretrial identification
procedure was impermissibly suggestive. Gamboa v. State, 296 S.W.3d 574, 581
(Tex. Crim. App. 2009); Adams v. State, 397 S.W.3d 760, 764 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). First, we determine if the pretrial
identification procedure was impermissibly suggestive. Gamboa, 296 S.W.3d at
581; Adams, 397 S.W.3d at 764. Second, if we conclude that the procedure was
impermissibly suggestive, we then determine if the impermissibly suggestive
nature of the pretrial lineup gave rise to a substantial likelihood of irreparable
misidentification. Gamboa, 296 S.W.3d at 581-82; Adams, 397 S.W.3d at 764. If
the pretrial procedure is found to be impermissibly suggestive, identification
testimony would nevertheless be admissible where the totality of the circumstances
shows no substantial likelihood of misidentification. Adams, 397 S.W.3d at 764.
Appellant must show by clear and convincing evidence that the identification has
been irreparably tainted before we can reverse his conviction. See Barley v. State,
906 S.W.2d 27, 34 (Tex. Crim. App. 1995); see also Santos v. State, 116 S.W.3d
447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Assuming without deciding that the pretrial identification procedures used in
this case were impermissibly suggestive, appellant has failed to show by clear and
convincing evidence that these procedures gave rise to a substantial likelihood of
irreparable misidentification. The factors we consider when determining this issue
include (1) the witness’s opportunity to view the perpetrator at the time of the
offense, (2) the witness’s degree of attention during the offense, (3) the accuracy of
the witness’s prior description of the perpetrator, (4) the witness’s level of certainty
regarding his identification at the time of confrontation, and (5) the lapse of time
between the offense and the subsequent confrontation. Gamboa, 296 S.W.3d at
582; Adams, 397 S.W.3d at 764. We consider these issues of historical fact in the

24
light most favorable to the trial court’s ruling, then weigh them de novo against the
“corrupting effect” of the suggestive pretrial identification procedure. Adams, 397
S.W.3d at 764.

Here, Mendiete testified in detail regarding the several minutes during which
he was able to observe the suspect at very close range. Mendiete testified he was
lying face up, appellant was within a few feet of him, the lighting was good, and
Mendiete was able to get a good look at appellant’s face and eyes and recognized
appellant at trial.23 Mendiete’s description of appellant—that he was wearing a red
shirt and black head covering—was consistent with other witnesses’ descriptions
and appellant’s appearance on the video less than an hour after the robbery. An
officer testified that Mendiete immediately chose the photograph of appellant and
told the officer he was “[o]ne hundred percent” certain that appellant was the
assailant who shot Mauricio. The identification occurred less than a month after the
offense.

From the context of Johnson’s testimony, it was clear that he got a good look
at the suspect at very close range. Johnson testified he could reach out and touch
his assailants when they came into his apartment, they were approximately four to
five feet away, and he “could clearly make out [appellant’s] face” and had “no
problem seeing his facial features.” Johnson also testified he paid close attention to
his assailant because he was holding a gun. Johnson’s description of appellant also
matched the other witnesses’ descriptions—that he was wearing a red shirt and
dark (black or navy) cap—and appellant’s appearance on the video. Although

23
Appellant argues Mendiete’s testimony was inconsistent with regard to whether
Mendiete was lying face up or face down, whether he saw three men or only two, and who shot
Javier. Appellant also complains that the detail about the red shirt was not included in
Mendiete’s statement to the police. These are credibility issues that we leave to the trial court.
See Adams, 397 S.W.3d at 763.

25
appellant took 15 to 30 seconds to choose between two photographs,24 an officer
testified Johnson reported he was “sure” about his identification of appellant as his
assailant. When Johnson made his choice, he said, “This is the guy.” The
identification occurred only twelve days after the offense.

Based on the foregoing facts, even if the photo lineups were impermissibly
suggestive, the totality of the circumstances shows no substantial likelihood of
misidentification occurred. See Adams, 397 S.W.3d at 764.

We overrule appellant’s fourth issue.

V. No Error in Admitting Evidence of Extraneous Offenses

In his fifth issue, appellant complains that the trial court abused its discretion
in admitting evidence of the following extraneous offenses in violation of Texas
Rules of Evidence 40325 and 404: the aggravated robbery and assault of Johnson
and the aggravated assault of Mitchell, which occurred as the suspects drove away
from Johnson’s apartment complex.

Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Tex. R. Evid. 404(b); Martin v. State, 173 S.W.3d 463, 466 (Tex.
Crim. App. 2005). Rule 403 provides that even relevant evidence may be excluded
if “its probative value is substantially outweighed by the danger of unfair

24
Before choosing the photo of appellant, Johnson told the officer that the suspect in one
photo had a similar chin, nose and mouth and the suspect in the other photo had similar eyebrows
to appellant’s. The officer testified Johnson took an unusually long time to choose between the
two photos.
25
Appellant states that Rule 403 “provides that relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,” see Texas Rule of
Evidence 403, but does not analyze how the probative value of the extraneous offenses was
outweighed by the danger of unfair prejudice. We nonetheless address the issue in conjunction
with appellant’s extraneous offense argument.

26
prejudice,” among other things. Tex. R. Evid. 403; Martin, 173 S.W.3d at 466.
“‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Tex. R. Evid. 401;
Martin, 173 S.W.3d at 466. However, Rule 404(b) also provides that extraneous
offense evidence may “be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident[.]” Martin, 173 S.W.3d at 466 (quoting Rule 404(b)). This list is
illustrative, rather than exhaustive, and extraneous-offense evidence may be
admissible when a defendant raises a defensive issue that negates one of the
elements of the offense. Id. Thus, a party may introduce evidence of other crimes,
wrongs, or acts if such evidence logically serves to make more or less probable an
elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or
defensive evidence that undermines an elemental fact. Id. Whether extraneous
offense evidence has relevance apart from character conformity, as required by
Rule 404(b), is a question for the trial court. Id.

In this case, appellant’s identity as the perpetrator of the crime was hotly
contested. Identity may be placed in dispute by the defendant’s opening statement
or cross-examination, as well as by affirmative evidence offered by the defense.
Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). Cross examination
places identity at issue if it implies the witness’s identification of the defendant is
not trustworthy. See Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004).
Throughout trial, appellant raised the issue of identity as a defense by vigorously
cross-examining witnesses regarding the reliability of their in and out of court
identifications26 and presenting evidence that the witnesses may have mistaken

26
Appellant cross examined the witnesses regarding whether they could identify him
27
appellant for Wright, his cousin who resembled him. Accordingly, appellant placed
his identity as the perpetrator in dispute. But our inquiry does not end with a
defendant’s raising the issue of identity. Page v. State, 213 S.W.3d 332, 336 (Tex.
Crim. App. 2006).

Extraneous offense evidence is admissible under both Rules 404(b) and 403
if that evidence satisfies a two-prong test: whether the evidence is relevant to a fact
of consequence in the case apart from its tendency to prove conduct in conformity
with character and whether the probative value of the evidence is substantially
outweighed by unfair prejudice. Page, 213 S.W.3d at 336; Martin, 173 S.W.3d at
466. We must uphold a trial court’s ruling on the admissibility of evidence “as long
as the trial court’s ruling was at least within the zone of reasonable disagreement.”
Martin, 173 S.W.3d at 467.

When the extraneous offense is introduced to prove identity by comparing
common characteristics, it must be so similar to the charged offense that the
offenses illustrate the defendant’s “distinctive and idiosyncratic manner of
committing criminal acts.” Page, 213 S.W.3d at 336; Martin, 173 S.W.3d at 468.
Such extraneous offense evidence is admissible to prove identity when the
common characteristics of each offense are so unusual as to act as the defendant’s
“signature.” Page, 213 S.W.3d at 336. The signature must be apparent from a
comparison of the circumstances in both cases. Id. To determine the similarity
between the offenses for the purpose of establishing identity, appellate courts
should take into account both the specific characteristics of the offenses and the
time interval between them. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim.
App. 2002). The extraneous offense and the charged offense can be different

because of their ability to see his face, the lighting in their homes at the time of the crimes,
whether they needed—and if so, wore—glasses, their perception of his height and weight, and
their ability to recall his features.

28
offenses, so long as the similarities between the two offenses are such that the
evidence is relevant. Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d).

The extraneous offenses in this case bear striking similarities to the offense
for which appellant was convicted. Both robberies were home invasions where the
front door was kicked in and involved three African American males. One suspect
in each robbery was wearing a red shirt and black hat, and one suspect in each
robbery was wearing a white shirt. The suspect in the red shirt carried a small gun
and appeared to be in charge, and in both robberies, a second suspect carried a gun.
In both cases, someone was shot. The incidents occurred at neighboring apartment
complexes and were reported to 911 eight minutes apart. Appellant was positively
identified in both robberies. The bullets that killed Mauricio and were fired at
Mitchell were fired from the same gun. Mitchell’s description of the vehicle
fleeing the scene of the first robbery matched the vehicle found in the parking lot at
the apartment complex where Mauricio was murdered.

We conclude the evidence of the extraneous offenses admitted at trial was
highly probative of appellant’s identity as the perpetrator and thus relevant to a fact
of consequence in the case apart from its tendency to prove conduct in conformity
with character. See Johnson, 68 S.W.3d at 650-51. We further conclude that the
similarity of the specific characteristics of the offenses, the proximity of the
locations, and the time interval between them show that the probative value of the
extraneous offenses was not substantially outweighed by the danger of unfair
prejudice. See id. at 651; see also Karnes v. State, 127 S.W.3d 184, 191 (Tex.
App.—Fort Worth 2003, pet. ref’d) (“We conclude that the proximity in time and
place of each offense, the common mode in which they were committed, and the
circumstances surrounding the offenses were sufficiently similar to justify

29
admission of the extraneous offense evidence on the issue of identity.”).

Moreover, the facts of the extraneous offenses were interwoven with the
investigation of Mauricio’s murder and necessary because there was no physical
evidence linking appellant to the crime scene. See Johnson, 68 S.W.3d at 651-52
(holding extraneous offense evidence was not unfairly prejudicial even though
State had DNA evidence, fingerprints, and written and oral confessions). The
extraneous offense evidence provided eye witness testimony and ballistic evidence
inferentially linking appellant to the second robbery and murder. See id.
Accordingly, the evidence was not unfairly prejudicial, and the trial court did not
abuse its discretion in admitting the extraneous offense evidence. See id.

We overrule appellant’s fifth issue.

VI. No Jury Charge Error

In his sixth issue, appellant complains of the trial court’s failure to instruct
the jury on the admissibility of the extraneous offenses to rebut appellant’s
defensive theory. See Owens v. State, 827 S.W.2d 911, 917 (Tex. Crim. App.
1992) (holding extraneous offense evidence was not admissible to rebut defensive
theory because the defensive theory was not presented to the jury in the trial
court’s limiting instruction).

Our first duty in analyzing a criminal jury charge issue is to decide whether
error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009);
Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). If error is found, the degree of harm necessary for reversal depends on
whether the appellant preserved the error by objecting to the complained of
instruction. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); see also
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g);

30
Lovings, 376 S.W.3d at 337. If the defendant properly objected to the erroneous
jury charge instruction, reversal is required if we find “some harm” to the
defendant’s rights. Olivas, 202 S.W.3d at 144 n.21; Lovings, 376 S.W.3d at 337. If
the error was not objected to, it must be “fundamental” and requires reversal only
if it was so egregious and created such harm that the defendant “has not had a fair
and impartial trial.” Barrios, 283 S.W.3d at 350; Lovings, 376 S.W.3d at 339.

At trial, defense counsel stated that he had no objections to the court’s
charge. Therefore, appellant was required to show both that the trial court erred by
failing to instruct the jury on the admissibility of extraneous offense evidence to
rebut a defensive theory and that the trial court’s error caused him egregious harm.
See Olivas, 202 S.W.3d at 144; see also Lovings, 376 S.W.3d at 337.

Appellant’s sole defensive theory at trial was that he had been misidentified
by the witnesses. Appellant cites Owens for the proposition that the trial court was
required to submit a limiting instruction on his defensive theory. 827 S.W.2d 911.
In that case, the State argued extraneous offense evidence was admissible to rebut
the defendant’s implied theory of “frame-up.” Id. at 917. The Court of Criminal
Appeals noted, “[E]xtraneous offense evidence of a defendant’s [modus operandi]
is admissible only as proof of some other basis of admissibility [such as] identity
or lack of mistake.” Id. (emphasis added). Assuming the evidence was admissible,
the court held that without a limiting instruction, “there [was] no way for an
appellate court to know whether the jury properly applied the evidence of
appellant’s [modus operandi] to rebut the weight or credibility of [the defendant’s]
‘frame-up’ theory or relied on it for an improper basis such as character
conformity.” Id. There was no dispute in Owens as to identity, motive, intent or
any of the other exceptions listed in rule 404(b). Webb v. State, 36 S.W.3d 164,
180 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Owens, 827 S.W.2d

31
at 916).

Here, the trial court properly instructed the jury to consider the extraneous
offense evidence only for the purposes allowed under Rule of Evidence 404(b),
which included determining identity.27 See Blackwell v. State, 193 S.W.3d 1, 16
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding trial court’s Rule 404(b)
instruction that jury could consider extraneous offense evidence only “in
determining the motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident of the defendant” properly limited the jury’s
reliance on the extraneous offense evidence to defensive issues that the defendant
raised, specifically, his motive and intent to commit the offense). We conclude,
therefore, that the trial court did not err.

We overrule appellant’s sixth issue.

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Boyce, Jamison, and Busby.
Publish — TEX. R. APP. P. 47.2(b).

27
The jury charge reads:
[I]f 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.
(Emphasis added.) See Tex. R. Evid. 404 (b).

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