COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00145-CR
WILLIE CHARLES PRICE, JR. APPELLANT
A/K/A WILLIE C. PRICE, JR.
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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A jury convicted appellant Willie Charles Price, Jr. a/k/a Willie C. Price, Jr.
of aggravated robbery.1 At appellant’s trial, victims of three similar robberies
identified him as the man who had robbed them. In a sole point, appellant
contends that the trial court erred by allowing evidence about these extraneous
offenses. We affirm.
1
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
Background Facts
One early morning in the summer of 2009, a man entered a Fort Worth
convenience store carrying a crowbar and wearing black clothing and a towel
over his head. While holding the crowbar in an upright position, the man ordered
the store’s clerk, Ray Kilgore, to give him money from a cash register. Kilgore
gave the man the money, and the man ran away. Kilgore identified appellant as
the robber through a photo lineup.
A grand jury indicted appellant with aggravated robbery. The parties filed
various pretrial documents (including the State’s notice of its intent to introduce
evidence of other crimes, wrongs, or acts that appellant had committed), and
appellant pled not guilty. At trial, Kilgore identified appellant as the man who had
committed the robbery, and Kilgore said that he had also seen appellant in the
store earlier that evening. A manager at the store at the time of the robbery,
Charlene Bradshaw, viewed a recording of the robbery and also identified
appellant at trial as a man she had seen in the store earlier that evening.
In addition to presenting testimony from Kilgore and Bradshaw, the State
called three witnesses who identified appellant as the perpetrator of separate but
similar offenses in each of the convenience stores that they worked in. Defense
counsel objected to this testimony under rules of evidence 403 and 404(b). 2
The trial court overruled the objection and admitted testimony regarding the
2
See Tex. R. Evid. 403, 404(b).
2
extraneous offenses. The court gave the jury a limiting instruction to only
consider the extraneous offenses for identity purposes. The jury returned a
conviction for aggravated robbery and, after hearing evidence concerning
appellant’s punishment, assessed twenty years’ confinement. Appellant filed
notice of this appeal.
The Admission of the Extraneous Offenses
In his sole point, appellant contends that the trial court abused its
discretion by admitting evidence of the extraneous offenses. We review the trial
court’s admission of evidence under an abuse of discretion standard. Allen v.
State, 202 S.W.3d 364, 367 (Tex. App.—Fort Worth 2006, pet. ref’d) (op. on
reh’g); see Montgomery v. State, 810 S.W.2d 372, 390–91 (Tex. Crim. App.
1991) (op. on reh’g). Under this standard, the trial court’s ruling will be upheld as
long as it falls within the ―zone of reasonable disagreement.‖ Alami v. State, 333
S.W.3d 881, 889 (Tex. App.—Fort Worth 2011, no pet.); Karnes v. State, 127
S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref’d), cert. denied, 129 S.
Ct. 2391 (2009).
―Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as . . . identity . . . .‖ Tex. R.
Evid. 404(b); see Montgomery, 810 S.W.2d at 387–88; see also Segundo v.
State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that, generally, the
defendant is to be tried only for the offense charged, not for any other crimes),
3
cert. denied, 130 S. Ct. 53 (2009). The State, as the proponent of extraneous
offense evidence, bears the burden of showing admissibility. Russell v. State,
113 S.W.3d 530, 535 (Tex. App.—Fort Worth 2003, pet. ref’d). ―Whether
extraneous offense evidence has relevance apart from character conformity, as
required by Rule 404(b), is a question for the trial court.‖ Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003).
For an extraneous offense to be admissible to show identity, identity must
be raised as an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex.
Crim. App. 1996) (citing Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App.
1985), cert. denied, 474 U.S. 1113 (1986)). A defendant may raise the issue of
identity during cross-examination of the State’s witnesses. Id.; see Page v.
State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (―Identity can be raised by
defense cross-examination, such as when the identifying witness is impeached
on a material detail of the identification.‖); see also Burton v. State, 230 S.W.3d
846, 849–50 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that the
defendant raised identity as an issue in the case by questioning the certainty of
the victim’s identification). In Page, the court of criminal appeals determined that
the defendant raised the issue of identity because questioning of the State’s
witness called into doubt either ―her capacity to observe (i.e., she was mistaken)
4
or her truthfulness (i.e., she was lying), or both, [and] the questions implied that
the identification of appellant was not trustworthy.‖ 137 S.W.3d at 78.3
Appellant’s trial counsel asked questions during his cross-examination of
the State’s witnesses in a manner that obviously emphasized the issue of
identity.4 Counsel repeatedly asked Kilgore about whether he could clearly see
appellant’s face at the time of the robbery, and counsel also asked Kilgore
several other questions that sought to impugn Kilgore’s identification of appellant:
3
Even when identity is raised as an issue, extraneous offenses are usually
admissible only if the offenses are so similar to the charged offense as to
illustrate the defendant’s distinctive and idiosyncratic manner of committing
criminal acts. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006);
Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992); Karnes, 127
S.W.3d at 190; see also Segundo, 270 S.W.3d at 88 (explaining that the
common characteristics to show a link between the extraneous and charged
offenses may be proximity in time and place, mode of commission of the crimes,
the person’s dress, or any other elements that mark both crimes as having been
committed by the same person). The dissenting opinion, however, fails to
recognize that in appellant’s concise brief, he does not contend that the
extraneous offenses that the trial court admitted are not sufficiently similar to the
offense in this case to show a connection between all of the crimes. We note
that the three witnesses of the extraneous offenses testified that all of the
offenses were committed by a black man and occurred in convenience stores
during early morning hours of dates near the date of the offense at issue here.
All were committed by a man with a towel over his head who was carrying a
weapon (in two of the three extraneous offenses, the weapon was a crow bar or
steel pipe). All three witnesses identified appellant at trial as the perpetrator of
the offenses.
4
As most cross-examinations would, appellant’s cross-examinations of the
State’s witnesses related to factual matters that were similar to those elicited
during direct examination. Appellant’s counsel, however, did not ―only repeat[]
the questions raised by the State.‖ Dissenting Op. at 2. The manner of the
State’s questioning was focused on ultimately producing a positive identification
of appellant as the robber. Appellant’s counsel’s questioning, as described
below, was focused on creating doubt about that identification.
5
Q Okay. And I believe you testified that you were briefly face
to face with the man, and I think that initially the man comes in and
walks directly up to you. Is that when you were face to face with
him?
A Yeah.
Q All right. And then you said that you didn’t want to really
take a look at him because you were afraid that it might turn out
badly for you; is that correct?
A Yes, when he was up close.
Q Okay. So you were -- really you were kind of trying not to
look at him, would that be a fair assessment?
A Yeah, when he was up close.
Q Okay. And then after that you were trying not to look at
him, would that be accurate?
A Yes.
Q All right. So pretty much the time that you got to view him
right up close was that period of time when he walks up right to you
where you’re down there working on the computer, right?
A Yes.
Q Okay. And after that you were really kind of trying not to
look at him; is that right?
A Yes.
....
Q Okay. And, in fact, on this video though that we just saw
that lasted several minutes there were several people within that
brief period of time that had on black clothing other than the robber;
is that correct?
A Yes.
Q Okay. And I believe that also on that video we saw several
African American men that had a bald head; is that right?
6
A Yeah.
Q All right. And so essentially there were lots of people that
came in there wearing black clothing with shaved heads, would that
be accurate to say?
A Not really, it wouldn't.
....
Q Okay. Well, my question is, was what stated on the 911
tape was that I couldn’t see his face? You heard that?
A Yeah.[5] [Emphasis added.]
Counsel also repeatedly asked Bradshaw about how certain her
identification was because while she saw appellant’s face when he entered the
store to ask for water earlier on the evening in question, she only saw the video
of appellant’s second entry in the store (when he committed the aggravated
robbery), and the video did not show appellant’s full face. Counsel also
questioned whether Bradshaw’s identification was based on appellant’s facial
features or simply his clothing. Furthermore, counsel asked the detective who
prepared the photo lineup that Bradshaw and Kilgore viewed whether the lineup
was unduly suggestive and whether Kilgore had initially struggled to identify
appellant in the lineup.
Thus, as in Page, the question of whether defense counsel’s cross-
examinations of these witnesses raised the issue of identity ―may best be
5
In contrast to these questions, the State asked Kilgore whether he had
been able to get a ―clear‖ and ―good‖ look at appellant, and Kilgore testified that
he had.
7
answered with another question: If it was not about identity, what was it about?‖
137 S.W.3d at 79. Finally, we note that appellant’s counsel also made a direct
attack on the identification of appellant in his closing statements. He addressed
identification as his first argument and said, ―Now, we all know people get
misidentified all the time.‖ Later, counsel told the jury, ―I would trust that you
weigh the evidence carefully, and that when you come back, you will have
reasonable doubt as to the identity of the person on this video and the testimony
of those witnesses and find Mr. Price not guilty.‖
For these reasons, we conclude that the trial court did not abuse its
discretion by deciding that the extraneous offenses were admissible to show
appellant’s identity under rule 404(b). See Tex. R. Evid. 404(b); Allen, 202
S.W.3d at 367.
Appellant also asserts (without providing any significant analysis) that the
trial court should have excluded evidence regarding the extraneous offenses
under rule 403.6 See Tex. R. Evid. 403 (―Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.‖). The admission
6
Appellant objected to the evidence under rule 403 at trial. The extent of
appellant’s argument on appeal regarding rule 403 states, ―Under Texas Rule[] of
Evidence 403 . . . , the admission of not one, but three extraneous robberies was
error and effectively, despite the trial Court’s [limiting] instruction, presented
character conformity evidence and substantially prejudiced and harmed
[a]ppellant.‖
8
of extraneous offenses must not be substantially more prejudicial than probative.
See id.; Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).
The probative value of extraneous offenses is low when the offenses support
only noncompelling, undisputed evidence that has already been submitted.
Montgomery, 810 S.W.2d at 390.
As we explained in Alami,
Once appellant makes a rule 403 objection, the trial court must
weigh the probative value of the evidence to determine if it is
substantially outweighed by its potential for unfair prejudice. A rule
403 balancing test includes the following factors: (1) the inherent
probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of
time or merely repeat evidence already admitted. The rules of
evidence favor the admission of relevant evidence and carry a
presumption that relevant evidence is more probative than
prejudicial.
333 S.W.3d at 889 (citations omitted); see Sanders v. State, 255 S.W.3d 754,
760 (Tex. App.—Fort Worth 2008, pet. ref’d) (―Unfair prejudice arises from
evidence that has an undue tendency to suggest that a decision be made on an
improper basis, commonly an emotional one.‖).
At trial, the State presented a surveillance tape of the robbery at issue in
this case, but the towel over appellant’s head hid his face from view. Appellant
challenged Kilgore’s and Bradshaw’s identifications of him as the robber during
9
their testimony and, eventually, in his closing argument. Thus, the testimony of
other victims of the extraneous crimes, who identified appellant as the man who
had also robbed them in a quite similar way to how he robbed Kilgore, had
substantial probative value. The evidence about the extraneous offenses
focused, rather than distracted, the jury on the main issue in the case: whether
appellant was the person who committed the crime against Kilgore. See Alami,
333 S.W.3d at 889. Also, the limiting instruction that the trial court gave with the
testimony helped to ensure that the jury would not be confused by the evidence
or use it for an improper purpose. See Burton, 230 S.W.3d at 851. We hold that
the trial court did not abuse its discretion by following the presumption to admit
relevant evidence and by determining that the evidence of the extraneous
offenses was not substantially more unfairly prejudicial than probative. See Tex.
R. Evid. 403; Allen, 202 S.W.3d at 367.
For all of these reasons, we overrule appellant’s only point.
10
Conclusion
Having overruled appellant’s point, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: August 25, 2011
11
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00145-CR
WILLIE CHARLES PRICE, JR. APPELLANT
A/K/A WILLIE C. PRICE, JR.
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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DISSENTING OPINION
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Respectfully, I write separately because I do not understand the majority
opinion to have addressed the issues raised by Appellant.
Appellant argues that the trial court erred by admitting evidence of
extraneous offenses because Appellant did not place identity in issue beyond the
degree to which the State placed identity in issue. The majority addresses
Appellant’s point by reiterating the questions Appellant asked regarding
witnesses’ ability to view the actor and questions regarding the photo lineup.
Appellant, however, does not argue that he did not mention those matters.
Appellant argues that he did not go beyond the questions raised by the State on
direct examination. That is, Appellant argues that the State cannot raise the
issue of identity in order to make extraneous offenses admissible to prove
identity, and a defendant who only repeats the questions raised by the State
does not open the door to make admissible evidence of extraneous offenses.
The majority does not explain the extent to which the State raised the
issue of identity, nor does the majority explain how Appellant went beyond the
State’s questioning the bases of witnesses’ identification in order to open the
door to extraneous offenses. The majority also does not explain, except for a
mention in a footnote, how the extraneous offense evidence resolved any
questions of identity.
As the Texas Court of Criminal Appeals has discussed,
The general rule is that the defendant is to be tried only for the
offense charged, not for any other crimes or for being a criminal
generally. However, evidence of extraneous acts of misconduct may
be admissible if (1) the uncharged act is relevant to a material issue
in the case, and (2) the probative value of that evidence is not
significantly outweighed by its prejudicial effect. Because the
propensity to commit crimes is not a material fact in a criminal case,
Rule 404(b) explicitly prohibits the admission of uncharged acts to
prove conduct in conformity with a bad character.
One of the main rationales for admitting extraneous-offense
evidence is to prove the identity of the offender. Here, the theory of
relevancy is usually that of modus operandi in which the pattern and
characteristics of the charged crime and the uncharged misconduct
are so distinctively similar that they constitute a ―signature.‖ Usually,
2
it is the accretion of small, sometimes individually insignificant,
details that marks each crime as the handiwork or modus operandi
of a single individual. No rigid rules dictate what constitutes
sufficient similarities; rather, the common characteristics may be
proximity in time and place, mode of commission of the crimes, the
person’s dress, or any other elements which mark both crimes as
having been committed by the same person. But if the similarities
are ―generic,‖ i.e., typical to this type of crime, they will not constitute
a ―signature‖ crime. Sometimes, however, the ―signature‖ is one
unique characteristic. For example, suppose that three bank
robberies are committed over a four-year period in different cities in
which the robber used an antique silver crossbow. This scenario is
so unusual that it is highly likely that each robbery was committed by
the same person using the same antique silver crossbow. This is
―the mark of Zorro‖ mode of proving identity; it is a remarkably
unusual fact, in which a single detail suffices to establish identity.1
The burden of showing admissibility rests upon the proponent of the evidence of
extraneous offenses.2 As the Texas Court of Criminal Appeals has explained,
In Jones, we concluded that, even though the state had the burden
of proving guilty intent and identity, the state could not permissibly
use extraneous offenses as circumstantial evidence on these issues
where the state had uncontroverted direct evidence on the issue of
identity and guilty intent could be inferred from the act itself. In that
type of situation, the prejudicial effect of the evidence far outweighs
its relevance to any issue in the case; and the evidence of the
extraneous offense serves only to establish the accused’s bad
character.3
Here, Appellant argues that the State delved into the witnesses’ ability to observe
the actor and the degree to which their testimony regarding identification had
1
Segundo v. State, 270 S.W.3d 79, 87–88 (Tex. Crim. App. 2008)
(footnotes omitted), cert. denied, 130 S. Ct. 53 (2009).
2
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op.
on reh’g).
3
Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972).
3
been influenced. This is what a good lawyer does. If the defense did nothing but
repeat what the State had already proved, how did Appellant challenge the
witnesses’ identification and thereby open the door for proof of extraneous
offenses? I do not understand how the majority opinion explains the answer to
this question. If Appellant did so challenge and undermine the validity of the
witnesses’ identification, how did the State as proponent of the evidence of the
extraneous offenses satisfy its burden to show admissibility?
True, the majority mentions in a footnote that the offenses at trial and the
extraneous offenses were all committed by a black man. 4 They were committed
in convenience stores during early morning hours of ―dates near the date of the
offense at issue here.‖5 So far, it is difficult to perceive how the majority
construes this evidence as a signature motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. The majority
mentions a towel on Appellant’s head6 and on the man’s head in the extraneous
offenses but does not provide any discussion.7 Additionally, Appellant carried a
crowbar. The majority mentions in the footnote that the man or men in the
4
Majority op. at 5 n.3.
5
Id.
6
Id. at 2.
7
Id. at 5–6 n.3.
4
extraneous offenses carried a weapon.8 In one offense, the perpetrator carried a
knife, in one, he carried a steel pipe, and in one, he carried a crowbar.
―Faced with an objection, the proponent of such evidence must satisfy the
trial court that the extraneous act has relevance apart from its tendency to prove
character conformity.‖9 Except for the aside in the footnote, I do not understand
how the majority opinion addresses whether the State satisfied this obligation.
For these reasons, I cannot join the majority opinion.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 25, 2011
8
Id.
9
Feldman v. State, 71 S.W.3d 738, 754 (Tex. Crim. App. 2002) (citing
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997), and McFarland
v. State, 845 S.W.2d 824, 837–38 (Tex. Crim. App. 1992), cert. denied, 508 U.S.
963 (1993), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex.
Crim. App. 1994)).
5