Kevin Washington v. State

Opinion issued May 21, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00615-CR
———————————
KEVIN WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1235382

MEMORANDUM OPINION

A jury convicted Kevin Washington of aggravated robbery. 1 The trial court

assessed punishment at seventy-five years’ confinement. In two issues,

Washington contends that the trial court erred in (1) denying his motion to

1
See TEX. PENAL CODE ANN. § 29.03 (West 2011).
suppress identification and (2) allowing trial testimony about a contemporaneous

sexual assault. We affirm the trial court’s judgment.

Background

At approximately 5:30 a.m. on September 18, 2009, three men with guns

approached Mr. Stubblefield in the garage of his apartment. Two of the men, later

identified as Darius Cooper and Marcus Smith, wore bandanas over their faces and

black clothing. The third man, later identified by Mr. Stubblefield as Washington,

wore a white towel over his face, a light blue or turquoise shirt, and blue jean

shorts or pants. Washington asked Mr. Stubblefield who else was in the apartment

and told him that, if he did everything he was told, he would not be killed. The

three men forced Mr. Stubblefield into the apartment where his wife was asleep in

the bedroom.

Mr. Stubblefield was told to lie on the bed in the bedroom. He got up from

the bed twice—once when asked for his debit card and PIN number and again

when Washington asked for help in disconnecting a satellite receiver. At one of

these times, Mr. Stubblefield saw Washington’s face when the white towel

dropped for two to three seconds. Mr. Stubblefield’s wife was on the bed the entire

time the men were in the apartment. She heard one of them speak with a Louisiana

accent, and saw the intruder with the blue shirt and white towel on his face (the

2
intruder her husband identified as Washington), 2 and another intruder in all black

with something over his face, but did not see the faces of any of the intruders. At

least one man stayed in the bedroom while the others gathered the Stubblefields’

belongings throughout the apartment and garage.

Immediately before they left the apartment, all three men were in the

bedroom with the Stubblefields. One tied Mr. Stubblefield’s hands and tied his feet

to the bed with electrical cords. The intruder with the white towel on his face

(Washington) tied his wife’s hands and feet with electrical cords, touched her

hand, and asked her how long she had been married. He then pulled down her

pajama bottoms, rubbed her buttocks, spread her legs apart, and inserted his fingers

or hands inside her vagina. Mr. Stubblefield felt the bed shaking and suspected that

his wife was being assaulted. When he lifted his head to look, another of the

intruders put a gun to Mr. Stubblefield’s head and told him to lie down.

The intruders were at the Stubblefields’ home for approximately thirty

minutes. When they left, they took Mr. Stubblefield’s truck and personal property

valued at approximately $15,000 to $18,000. The property included electronic

equipment, handguns, purses, jewelry, musical instruments, and debit cards with

the card PIN numbers.

2
Evidence at trial showed that DNA from the white towel could not be matched to
Washington, but could be matched to Cooper.
3
 Shortly after the intruders left, Mr. Stubblefield untied himself and his wife.

They ran to a neighbor’s home and called the police. That same day, the

Stubblefields provided their statements to the police, which included descriptions

of Cooper, Smith and Washington. The Stubblefields described the men as three

black males between the ages of seventeen and twenty-five, “[o]ne tall, one short,

spoke with a Louisiana accent”; and “[o]ne they thought was a little bit older guy

that was in charge.” The older one, later identified as Washington, was described

as 5’9” or 5’10”, 190 to 200 pounds, twenty to twenty-five years old, and with

short hair. Mr. Stubblefield stated that the older man wore a turquoise shirt, had a

white towel over his face, and had a gold tooth.

At Harris County Sheriff Detective Simmons’s request, Mr. Stubblefield

checked his bank account for any activity. Shortly after the robbery, approximately

$500 had been taken from his account, using the stolen debit cards in three ATM

transactions at two different gas stations. Simmons obtained surveillance video

tapes from the gas stations and, from one of the tapes, took two still photos—one

of a man entering the gas station where the ATM was used and one of the same

man with a black vehicle at that station.

The next day, Detective Simmons showed the two photos to the

Stubblefields. He asked each if the man in the photos was one of the robbers at

their apartment. Mr. Stubblefield positively identified the man as the person who

4
first approached him in the garage the previous day. He identified the man based

on the blue shirt and facial features, and his resemblance to a childhood

acquaintance.

Mr. Stubblefield’s wife did not recognize the man’s face, but she identified

him as one of the intruders because she recognized the light blue shirt. She testified

that her father, a retired police chief, told her that if she were in a bad situation to

pick something out to stick with her, and that she picked out the light blue shirt.

She remembered the shirt because it had writing and she thought it odd that

someone would wear a light-colored shirt to rob someone. At the time, Simmons

did not know the identity of the man in the photos.

The police soon located items belonging to the Stubblefields at a pawn shop

near their home. By talking with the pawn shop manager, police identified Cooper

and Smith as the persons who pawned the items on the day of the robbery. The

manager, however, did not know the name of a third black male who was with

them that day. When arrested, Cooper and Smith each admitted involvement in the

robbery. Smith named Washington as the third man at the Stubblefields’

apartment; Cooper confirmed that identification. 3

3
Smith, Washington’s cousin, testified at trial. Smith testified that he committed the
robbery with Cooper and another individual named Deundre. According to Smith,
he borrowed Washington’s vehicle before committing the robbery and, when he
returned it, gave Washington some of the stolen goods, including the debit card.
5
 Once he had Washington’s name, Detective Simmons created a computer-

generated photo array that included Washington’s photo and the photos of five

other African-American males. Simmons showed the photo array to the pawn shop

manager who positively identified Washington as the individual at the shop on two

occasions connected with the goods taken from the Stubblefields: first, with

Cooper and Smith when they pawned the Stubblefields’ electronic equipment and,

second, several days later when he sold Ms. Stubblefield’s purses to the pawn

shop.

Several days after the robbery and after showing the Stubblefields the

photographs from the gas station, Detective Simmons showed the photo array to

the Stubblefields. Simmons gave each of the Stubblefields written instructions,

which stated that they should not conclude or guess that the photographs contained

a picture of the person who committed the crime and that they were not obligated

to identify anyone. Mr. Stubblefield immediately and positively identified

Washington. Simmons testified that Mr. Stubblefield became upset when shown

the photo array and remembered Washington as the man who stayed in their

bedroom for most of the robbery. His wife could not identify anyone in the photo

array.

Washington filed a motion to suppress his identification, contending that it

was obtained by impermissibly suggestive procedures that gave rise to an

6
irreparable identification. According to Washington, (1) the Stubblefields’

descriptions did not match his appearance, except for his race; and (2) they were

shown his photograph from the gas station and told he was involved in the

incident. At the suppression hearing, Washington also contended that the photo

array was suggestive because only two other individuals in the array had skin tones

similar to his and those two individuals were younger than he.

Washington and Mr. Stubblefield testified at the pretrial suppression

hearing, which occurred in two parts. After Washington’s testimony, the trial court

found the photo array was “impermissibly suggestive,” but withheld a ruling

pending further testimony about the totality of the circumstances. The case

proceeded to trial. Early in the trial, the court granted Washington’s motion for a

mistrial after one of the State’s witnesses mentioned the alleged sexual assault in

violation of the court’s ruling on Washington’s motion in limine.

After the mistrial, the court resumed the hearing on Washington’s motion to

suppress. Mr. Stubblefield testified about the events on September 18 and his

identification of Washington in the photo array. Mr. Stubblefield also positively

identified Washington based on his memory from the day of the robbery. After

additional evidence, the court denied the motion to suppress based on the totality

of the circumstances surrounding the identification. 4

4
A different judge presided over the second trial.
7
 During the second trial, Mr. Stubblefield again positively identified

Washington in court as the person who committed the robbery over Washington’s

objection. The court also admitted the photo array into evidence over

Washington’s objections. Although objecting to the in-court identification and the

photo array based on an allegedly improper procedure, Washington did not object

to admission of the surveillance videos from the two gas stations, the two

photographs taken from the videos, or testimony about the identification of the

individual in the photos.

A jury found Washington guilty of aggravated robbery. Following a

punishment hearing, the trial court sentenced Washington to seventy-five years’

confinement. This appeal followed.

Pretrial Identification

Washington argues that the identification should have been suppressed based

on “the initial one photo identification and the overly-suggestive photo spread.”

“[T]he police showed the two complainants one photograph of Mr. Washington

and told the two eye witnesses that he was the man that had used their debit cards

at a gas station” and later showed a photo array with “only two [photos] matching

the general description given by the complainants.” He argues that “the totality of

the circumstances and inappropriate use” of a single photo required suppression of

the identification.

8
A. Standard of review

A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny

the accused due process of law. See Simmons v. United States, 390 U.S. 377, 384,

88 S. Ct. 967, 971 (1968); Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App.

1995). When challenging the admissibility of a pretrial identification, a defendant

has the burden to show that (1) the out-of-court identification procedure was

impermissibly suggestive, and (2) the suggestive procedure gave rise to a

substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33.

In reviewing a trial court’s decision on the admissibility of a pretrial

identification, we defer to the trial court’s rulings on mixed questions of law and

fact if they turn on the credibility and demeanor of witnesses. The question of

whether a pretrial identification procedure was impermissibly suggestive is a

mixed question of law and fact that does not turn on an evaluation of credibility

and demeanor; therefore, we apply a de novo standard of review. Loserth v. State,

963 S.W.2d 770, 773 (Tex. Crim. App. 1998). If a pretrial identification procedure

was impermissibly suggestive, the court must consider whether the suggestive

procedure gave rise to a substantial likelihood of irreparable misidentification. Neil

v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381–82 (1972). The factors

considered in this analysis are issues of historical fact and are considered

9
deferentially in a light most favorable to the trial court. Loserth, 963 S.W.2d at

773–74. Viewed in this way, the factors are weighed de novo against “the

corrupting effect” of the suggestive pretrial procedure. Ibarra v. State, 11 S.W.3d

189, 195–96 (Tex. Crim. App. 1999).

Appellate courts are not limited to reviewing only the evidence adduced at

the admissibility hearing when considering the identification. Webb v. State, 760

S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988). An appellate court may review both

the hearing testimony and evidence adduced at trial when determining the

admissibility of a pretrial identification. Id.

B. Impermissibly suggestive

Suggestiveness may arise from the manner in which a pretrial identification

procedure was conducted. Barley, 906 S.W.2d at 33. For example, a police officer

might point out the suspect or suggest that the suspect’s photograph was included

in the specific array. Id. In addition, the content of the photo array itself may be

suggestive if the suspect is the only individual who resembles the witness’s

description. Id. An identification may be suggestive based upon a single procedure

or the cumulative effect of multiple procedures. Id.

In determining the suggestiveness of an out-of-court identification, a court

examines the manner in which the pretrial procedure was conducted, as well as the

content of the line-up or photo array. See Burns v. State, 923 S.W.2d 233, 237–38

10
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (considering content of video

line-up and manner in which it was conducted). Even if a pretrial identification

procedure may have been suggestive, the defendant must establish by clear and

convincing evidence that the procedure was impermissibly suggestive. Barley, 906

S.W.2d at 33–34. To be impermissibly suggestive, the identification procedure

must in some way be so defective as to indicate or suggest the individual in the

photograph that the witness is to identify. Ward v. State, 474 S.W.2d 471, 475

(Tex. Crim. App. 1971).

1. The photo array

Washington argues that the photo array was compiled to lead to him because

it was one-sided—only two of the other five African-American individuals in the

array had light skin tones and those two individuals were younger than

Washington.5 The photo array, however, does not indicate or suggest the

photograph the Stubblefields were to identify.

The six individuals in the photo array fit the general description the

Stubblefields provided about the individual in their home. Detective Simmons

testified that the Stubblefields described the three perpetrators as black males,

between seventeen and twenty-five years old, “[o]ne tall, one short, spoke with like

5
Washington testified that he was thirty-one at the time of the robbery. It appears
from the photo array that the other two individuals with lighter complexions were
between 20 and 25 years old.

11
a Louisiana accent they thought.” They described the two younger, thinner males

as 6’0” to 6’2” tall and 150 pounds, and 5’6 to 5’8” tall and 140 to 160 pounds,

and “17 to 20.” The description of the older male was 5’9” to 5’10” tall, 190 to 200

pounds, and “[s]tocky. Short hair . . . 20 to 25” and with a gold tooth. Simmons did

not recall that the Stubblefields described Washington as having a light

complexion.

Although every photographic array must contain photographs of individuals

who fit the rough description of the suspect, it is not essential that all individuals

be identical in appearance. Buxton v. State, 699 S.W. 2d 212, 216 (Tex. Crim. App.

1985). Neither due process nor common sense requires that the features of

individuals in a lineup exhibit match those of the accused. Colgin v. State, 132

S.W.3d 526, 532 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Turner

v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980)). Additionally, a photo array

is not impermissibly suggestive even if it includes photographs of individuals of

varying skin tones or varying ages. See Buxton, 699 S.W.2d at 216 (concluding

that pretrial line-up of black males with varying skin tones was not unduly

suggestive although subjects differed by range of five inches in height and thirty-

five pounds in weight); Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App.

1984) (holding that line up was not impermissibly suggestive when appellant was

only one of two men who appeared to match age in witness’s description and

12
others looked younger); Page v. State, 125 S.W.3d 640, 647 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d) (holding that photographic array was not impermissibly

suggestive because all men were African-American, wore civilian clothes, had

short black hair and appeared to be similar in age).

We have reviewed the color photo array, which was admitted at trial. The

men in the photo array fit the Stubblefields’ descriptions. All six men were

African-Americans with similar haircuts and similar facial features. The men

appear to be within a similar age range and have similar skin tones. All wore white

shirts. All six individuals in the photo array are close-lipped with no teeth showing.

We conclude that the photo array was not impermissibly suggestive.

2. The two still photos

Washington also contends that the procedure of the photo array combined

with the two still photos taken from the videotapes and shown to the Stubblefields

resulted in a significant chance of misidentification. Use of a single photograph as

a photo array can be impermissibly suggestive. See, e.g., Delk v. State, 855 S.W.2d

700, 706 (Tex. Crim. App. 1993) (holding that showing complainant’s wife single

photograph after she asked to see picture of man arrested for her husband’s murder

was impermissibly suggestive); Bond v. State, 29 S.W.3d 169, 172 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d) (concluding that pretrial identification was

impermissibly suggestive when police officer showed complainant single

13
photograph faxed from police department while officer was at complainant’s home

investigating crime less than one hour after incident). Use of a single photograph,

without any of the traditional safeguards of a lineup or a photographic array, may

suggest to a witness that the person in the photograph was the person whom the

witness saw. See Simmons, 390 U.S. at 383–84, 88 S. Ct. at 971 (noting that “the

witness thereafter is apt to retain in his memory the image of the photograph rather

than that of the person actually seen.”).

In this case, the Stubblefields first viewed the two photos from the gas

station the day after the robbery. Detective Simmons told the Stubblefields that the

individual in the photos had used their debit card at a gas station ATM. Simmons

then asked if the photographed individual robbed them, was one of the robbers, or

was at their house. After showing the Stubblefields the two still photos, he

prepared the photo array that he showed to the Stubblefields.

Despite having seen the two still photos from the gas station, Mrs.

Stubblefield could not identify anyone in the photo array prepared by Detective

Simmons. Mr. Stubblefield testified that he identified Washington based on what

he saw on the day of the robbery, not based on the gas station photos. Simmons

testified that the gas station photos of Washington were not “that good,” were

taken from a distance, and were not “a positive identification” of him. One of the

14
photos shows Washington at a distance. In the other photo, Washington’s head is

pointed down and turned at an angle.

Although the pretrial identification procedure may have been suggestive,

Washington did not meet his burden to present clear and convincing evidence that

the pretrial identification was impermissibly suggestive. 6

C. Substantial likelihood of misidentification

Even assuming without deciding that the pretrial identification procedure

was impermissibly suggestive, it did not create a substantial likelihood of

irreparable misidentification. See Barley, 906 S.W.2d at 34. “The test is whether

considering the totality of the circumstances, ‘the photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.’” Ibarra, 11 S.W.3d at 195 (quoting

Simmons, 390 U.S. at 384, 88 S. Ct. at 971).

6
Washington also argues that the pretrial identification procedures in this case are
improper under article 38.20 of the Texas Code of Criminal Procedure, entitled
“Photograph and Live Lineup Identification Procedures.” TEX. CODE CRIM. PROC.
ANN. art. 38.20 (West Supp. 2012). Article 38.20 requires law enforcement
agencies to adopt and implement written policies for administration of photograph
identification procedures. Id. at § 3(b). Any policy adopted must address
procedures for assigning an administrator capable of “administering a photograph
array in a blind manner or in a manner consistent with other proven or best
supported practices designed to prevent opportunities to influence the witness.” Id.
at § 3(c)(2)(F). The statute applies only to a photograph identification procedure
conducted on or after September 1, 2012. Act of May 18, 2011, 82nd Leg., R.S.,
ch. 219, § 2(c), 2011 TEX. GEN. LAWS 792, 794.

15
 In assessing reliability, five non-exclusive factors should be weighed against

the corrupting effect of a suggestive identification procedure: “(1) the opportunity

of the witness to view the criminal at the time of the crime; (2) the witness’ degree

of attention; (3) the accuracy of the witness’ prior description of the criminal; (4)

the level of certainty demonstrated by the witness at the confrontation, and (5) the

length of time between the crime and the confrontation.” Luna v. State, 268

S.W.3d 594, 605 (Tex. Crim. App. 2008). If the totality of the circumstances

reveals no substantial likelihood of misidentification then, despite a suggestive

pretrial procedure, the pretrial identification and subsequent in-court identification

will be deemed reliable. Webb, 760 S.W.2d at 269. “Reliability is the linchpin in

determining the admissibility of identification testimony.” Luna, 268 S.W.3d at

605.

The Stubblefields had adequate opportunity to view Washington at the time

of the robbery. Mr. Stubblefield first saw Washington, although with the white

towel over his face, in the lighted garage for twenty to twenty-five seconds. The

garage lighting was adequate for Mr. Stubblefield to see the types and colors of the

guns and Washington’s clothing. Mr. Stubblefield also testified that he saw

Washington’s face for long enough to get a good look at it. When Mr. Stubblefield

was unhooking the satellite receiver or getting his debit card and PIN, he saw

Washington’s face for two to three seconds when the towel dropped and

16
Washington bent down, picked it up, and put it back on his face. Although the

bedroom light was off, the lights in the house and in the hallway directly in front of

the bedroom were on. Washington stood in the doorway between the hallway and

the bedroom. The hallway light shined into the bedroom so that Mr. Stubblefield

could see Washington’s face.

Mr. Stubblefield’s testimony shows that he was attentive when he saw

Washington. Mr. Stubblefield is African-American and is a United States Air

Force veteran who served for nearly five years. When the three men approached

him in the garage, Mr. Stubblefield assessed their height and weight. When the

towel dropped from Washington’s face, Mr. Stubblefield intentionally looked at

Washington because he wanted to be able to identify him and remember his face.

Mr. Stubblefield noticed that Washington resembled or favored someone whom he

knew growing up.

Mr. Stubblefield’s wife also was attentive. She testified that her father, a

retired police chief, advised her to pick out one thing that she could remember later

if she were ever in a bad situation. As to Washington, she picked out the “light

blue turquoise shirt” that had “a little writing on it”; “the blue stuck out.” She also

testified that Washington was the one who touched her and asked her how long she

had been married.

17
 The Stubblefields’ descriptions of Washington were sufficiently accurate.

See Bond, 29 S.W.3d at 173 (stating that descriptions do not have to be identical in

all respects to be accurate). Their descriptions of Washington’s height and weight

were within the range of Washington’s actual height and weight. The Stubblefields

described him as a black male, who had short hair and was approximately twenty

to twenty-five years old, 5’9” or 5’10 in height, and 190 to 200 pounds in weight.

The arresting officer estimated Washington’s height and weight at 5’11” and 200

pounds. At trial, the pawn shop manager described Washington as a black male,

about 5’10” and 225 pounds, and twenty-eight or twenty-nine years old. At the

pretrial hearing, Washington testified that he is 6 foot, weighed 242 pounds, and

was thirty-one at the time of the robbery. Although Mr. Stubblefield may have

inaccurately described Washington as having a gold tooth because he did not have

one at trial, Mr. Stubblefield’s general description was sufficiently accurate.

The Stubblefields demonstrated a high degree of certainty about the details

of the event. Mr. Stubblefield testified consistently about the details of the event in

his statement to the police, his pretrial testimony, and his trial testimony. He

positively identified Washington in the still photos from the gas station the day

after the robbery, the photo array several days after the robbery, and in court at the

pretrial hearing and trial. He twice testified that he based his photo array and in-

court identifications on what he saw the morning of the robbery, not on the gas

18
station photos. He immediately knew the man in the photographs was Washington

because “it was the person that I saw” and remembered him from the day of the

robbery. Mr. Stubblefield testified that he was certain that the person he identified

was the same person who committed the robbery and “held a gun to me and told

me they were going to kill me.” Detective Simmons testified that, when shown the

photo array, Mr. Stubblefield became upset and remembered Washington as the

man who stayed in the bedroom with his wife and him during most of the time that

they were tied up. Ms. Stubblefield immediately identified the man in the still

photos based on his shirt.

The time between the offense and the identification does not create an issue

on the accuracy of the identification. The Stubblefields identified the man in the

still gas station photos the day after the robbery. Mr. Stubblefield identified

Washington in the photo array only days after seeing the still photos. He identified

Washington twice in court less than two years later.

Weighing these factors against the suggestiveness of the pretrial

identification procedures, we conclude that the identification procedure did not

give rise to a substantial likelihood of irreparable misidentification. We overrule

Washington’s first issue.

19
 Admission of Extraneous Offense Evidence

In his second issue, Washington contends that evidence of the alleged sexual

assault should have been excluded because the evidence was not necessary to

establish the charged offense and was prejudicial. Washington contends that the

sexual assault was not inextricably intertwined with the charged offense, the

aggravated robbery. He states that the evidence was used “to show generally that

[he] had a bad character.”

A. Standard of review

We review the trial court’s evidentiary ruling for an abuse of discretion.

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,

321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d as untimely

filed). Unless the court’s decision was outside “the zone of reasonable

disagreement,” we will uphold the ruling. Oprean, 201 S.W.3d at 726; Walker, 321

S.W.3d at 22.

B. Admissibility of sexual assault evidence

Before trial, the State gave notice of its intent to use evidence of the sexual

assault. See TEX. R. EVID. 404(b) (conditioning admissibility of extraneous offense

evidence on reasonable notice before trial). Under Rule 404, evidence of other

crimes or acts is not admissible to show that a defendant committed the charged

offense in conformity with a bad character. See id.; Devoe v. State, 354 S.W.3d

20
457, 469 (Tex. Crim. App. 2011). Extraneous offense evidence, however, may be

admissible when it has relevance apart from character conformity. Moses v. State,

105 S.W.3d 622, 626 (Tex. Crim. App. 2003). It may be admissible to show proof

of motive, opportunity, intent, preparation, identity, or absence of mistake or

accident. Id.

Evidence of another crime also may be admissible as same-transaction

contextual evidence when “several crimes are intermixed, or blended with one

another, or connected so that they form an indivisible criminal transaction, and full

proof by testimony . . . of any one of them cannot be given without showing the

others.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). Same-

transaction contextual evidence is admitted because events do not occur in a

vacuum and a jury is entitled to know all relevant surrounding facts and

circumstances of the charged offense. Devoe, 354 S.W.3d at 469; Moreno v. State,

721 S.W.2d 295, 301 (Tex. Crim. App. 1986). Same-transaction contextual

evidence is admissible only when the offense would make little or no sense without

also bringing in that evidence and only to the extent it is necessary to the jury’s

understanding of the offense. McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim.

App. 2005) (quoting Wyatt, 23 S.W.3d at 25). “That is, it is admissible when

several offenses are ‘so intermixed or connected as to form a single, indivisible

criminal transaction, such that in narrating the one, it is impracticable to avoid

21
describing the other.’” Id. (quoting Rogers v. State, 843 S.W.2d 29, 33–34 (Tex.

Crim. App. 1993)).

In this case, the trial court concluded that the jury was entitled to know all of

the facts and circumstances surrounding the commission of the offense because

“[i]t all seems to be one continuing episode,” and the sexual assault allegation

“seems closely interwoven with the offense.” Washington contends that the trial

court’s decision was erroneous, relying on Pondexter v. State, 942 S.W.2d 577

(Tex. Crim. App. 1996).

In Pondexter, the Court concluded that evidence of the defendant’s

purported gang affiliations and activities, including conversations about gang

activity, was inadmissible as same transaction evidence in defendant’s murder trial.

Id. at 584. The gang-related evidence was not necessary to place the events of the

murder in context but “was introduced simply as an attempt to connect [the

defendant] to gangs in order to show his bad character.” Id.

That is not the case here; the evidence provided understanding and context

of the circumstances of the robbery and Mr. Stubblefield’s identification. The

alleged sexual assault occurred during the approximately thirty minutes that

Washington was in the Stubblefields’ home and committed aggravated robbery.

The evidence describes Washington’s conduct and activities while in the

Stubblefields’ bedroom. The evidence also explained Mr. Stubblefield’s and his

22
wife’s focus on Washington as one of the three intruders and provides context for

their description of Washington. We conclude that the assault is part of the

surrounding facts and circumstances of the charged offense of aggravated robbery.

See Moreno, 721 S.W.2d at 301. The evidence allowed the jury to consider the

charged offense in the context in which it actually occurred.

We reject Washington’s contention that the sexual assault evidence was

admitted to show bad character. The court gave the jury a limiting instruction on

evidence of extraneous offenses:

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.

This instruction cured any error in admission of the sexual assault evidence. See

Gamez v. State, 737 S.W.2d 315, 324 (Tex. Crim. App. 1987) (stating that

presumption exists that juries will follow court’s instructions).

We conclude that the trial court did not abuse its discretion. It was within the

zone of reasonable disagreement to find the sexual assault to be contextual

evidence. We overrule Washington’s second issue.

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 Conclusion

Having overruled each of Washington’s issues on appeal, we affirm the

judgment of the trial court.

Harvey Brown
Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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