Marquis Deshawn Clark Jr. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00083-CR
__________________

MARQUIS DESHAWN CLARK JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 18-09-12648-CR
__________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Marquis Deshawn Clark Jr. for aggravated

robbery by using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal

Code Ann. § 29.03(a)(2). Clark pleaded “not guilty,” but a jury found him guilty of

the offense charged and assessed punishment at imprisonment for life. Clark appeals

his conviction, raising six issues. Finding no reversible error, we affirm.

1
 Evidence at Trial

Testimony of Law Enforcement Officers

Corey Cooke, a deputy with the Montgomery County Sheriff’s Office testified

that he responded to a call at about 2:45 a.m. on August 23, 2018, for an aggravated

robbery at a Circle K convenience store in Porter, Texas. Cooke testified that the

surveillance video showed that the suspects arrived in a black Dodge Ram truck and

left in the same vehicle. According to Cooke, four men arrived in the truck and

entered the store, and two of the men had handguns. The suspects held a man in the

parking lot at gunpoint and forced the man into the store, one suspect jumped over

the counter and put a gun in the cashier’s face, took $50 from the register, about ten

packs of cigarettes, and two cell phones. One of the suspects was not wearing a mask

and he was later identified as Lacharles Craige and as the man who put a gun in the

cashier’s face.

The surveillance video from the Circle K was admitted into evidence and

published to the jury. Cooke identified Trenton Jackson and Lacharles Craige in the

video. Cooke also identified a third suspect wearing all black, a mask, and red

gloves, and a fourth suspect wearing a University of Houston hoodie and mask.

Craige had a black and silver semi-automatic handgun, Jackson also had a pistol

pointed at the cashier, and the third suspect who was wearing the red gloves had a

black semi-automatic handgun. According to Cooke, the suspects also held two

2
people in the parking lot at gunpoint and stole their cell phones so they could not

notify law enforcement. Cooke characterized the robbery as “extremely violent and

extremely reckless[.]”

The following day, Cooke learned of a robbery at an adult bookstore in

Houston that was also committed by four men about thirty minutes after the robbery

at the Circle K. Cooke contacted Detective Nealy with the Houston Police

Department who provided a photograph of one of the suspects from the adult

bookstore robbery and that photograph was of Craige. Craige was the only suspect

in the Circle K robbery who was not wearing a mask. Cooke learned that Nealy had

already interviewed Craige, and Craige had admitted to the Circle K robbery. Cooke

testified that he spoke with a victim whom the suspects pulled into the store from

the parking lot, and the victim recalled that someone held a pistol to the back of his

head. On cross-examination Cooke testified that Lacharles Craige and the third

suspect, who wore red gloves, held guns to the victims’ heads. Cooke agreed that

the third suspect seemed to be a “lookout” for a while and then he went behind the

counter.

Detective Brad Curtis, with the homicide and violent crimes unit of the

Montgomery County Sheriff’s Office, testified that he was assigned to the Circle K

robbery that occurred on August 23, 2018, in Porter. He had reviewed videos of the

Circle K robbery and of the robbery committed about thirty minutes later. Curtis

3
agreed he verified that four people were involved in both robberies. According to

Curtis, the deputies who responded to the robbery quickly learned of another similar

crime that occurred not far away that seemed to involve the same vehicle and people.

Curtis testified that the responding deputies at the Circle K identified that a Dodge

pickup truck was involved in the Circle K store robbery, and later a wrecked Dodge

pickup truck was located at the scene of the second robbery. Curtis identified certain

exhibits as photos of Clark, Craige, Jackson, and Cameron Lucas. Curtis agreed that

Craige had entered a guilty plea and received a fifty-year sentence, Jackson pleaded

guilty and received a forty-year sentence, and Lucas pleaded guilty and received a

thirty-year sentence—all for their involvement in the Circle K robbery. On cross-

examination, Curtis agreed that based solely on the video from the Circle K, he could

not say that Clark was in the store that night.

Officer Bobby Carlyle, with the Houston Police Department, testified that on

August 23, 2018, he responded to a “hold-up panic alarm” from an adult bookstore.

Carlyle testified that when he arrived and entered the store, he encountered a man

wearing a hoodie and a mask who was holding a gun, and the man ran toward the

back of the store where he got into a black four-door sedan and drove to the front of

the store. When Carlyle’s backup arrived, the officers pursued the vehicle south

toward Houston, they lost the vehicle for a while, but other police units caught the

vehicle when it crashed. According to Carlyle, the police matched one of the suspects

4
to video from the store’s surveillance cameras. Carlyle also testified that he talked

with the store’s cashier shortly after the robbery, and she told them, “they [] made

her…get naked and then made her perform oral sex on [two] of them.”

Officer Joshua Vincent, with the Houston Police Department, testified that on

the night of August 23, 2018, dispatch put out a priority call for service on a hold-

up panic alarm at an adult bookstore. Before he could get to the location, he heard

over the radio that the suspects’ vehicle had crashed, and the suspects were running

on foot. He and his superior officer stopped the vehicle to help set up a perimeter,

and a Black male who was bloody and sweaty approached the vehicle and said he

was in a crash and was hurt. Vincent testified that he later identified the man as

Lacharles Craige.

Special Agent Curtis Williams, with the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”), testified that he is a digital media collections

specialist trained to extract information stored on electronic devices, including from

cell phones. Williams agreed he was contacted by another special agent to complete

a “cell phone dump” in this case pursuant to a warrant, and he identified Clark’s cell

phone, which was admitted into evidence. He was unable to unlock the cell phone,

but ATF was able to extract information from the phone and store it on two USB

drives, and Williams generated a report on the phone’s contents, which was admitted

into evidence.

5
 Special Agent Dominic Rosamilia, a special agent with ATF assigned to

violent crimes, testified that he was brought into this case by a Houston Police

Department robbery task force officer. According to Rosamilia, ATF became

involved because the crimes were in two jurisdictions and initial investigation

discovered that robberies had been committed in three counties. Rosamilia testified

that the suspects would use stolen vehicles and often wore the same clothing,

including a skull mask. Rosamilia characterized the robberies as “a string of

violence.”

Rosamilia stated he served as a case manager, and he took over the search

warrant for the phones. Rosamilia testified that he received a report of the “cell

phone dump” of Clark’s phone, and he examined the timeline of calls, messages,

and pictures from the phone. According to Rosamilia, the timeline from Clark’s cell

phone showed no data, messages, or pictures during at least a two-hour window on

the dates of the robberies except for one Facetime call. Based on his experience and

training, this indicated the cell phone user was likely turning the phone off during

that window, and he was unable to identify the phone’s location from pings off cell

towers during that window. Rosamilia testified that the report from Clark’s phone

showed more than twenty Google searches between August 27 and September 4 for

news updates on robbery, update on adult bookstore robbery, “adult bookstore

employee raped in takeover robbery[,]” and suspects caught after sexual assault.

6
Rosamilia also testified that in the days prior to August 24, 2018, the report showed

searches for “Shipley Donuts robbery[,]” a drive-through robbery at McDonald’s,

and robberies in northwest Houston. According to Rosamilia, one message from the

phone dated August 23, 2018 stated “I lost my stuff on the lick last night[.]”

Rosamilia testified that he identified other messages from the phone dated August

29 indicating that people were “snitching” or “telling[]” and at that time, arrests had

been made in the robbery. Rosamilia also identified a message from the phone

identifying the sender as “Marquis.” Rosamilia also identified a photo from the

phone that depicted Clark with a semi-automatic firearm with an extended magazine

that holds thirty rounds of ammunition, and he agreed that a gun similar to this had

been used in at least one of the robberies in this case.

Detective Jeremy Curtis, with the Houston Police Department, testified that

he is assigned to the robbery division, violent offender task force, and the ATF crime

strike force in Houston. Curtis agreed that, with the assistance of ATF, he was able

to link numerous aggravated robberies that took place in and around Houston based

on common factors, including the clothing and faces of the individuals involved in

the series of robberies, their guns, and their propensity for violence with firearms.

He agreed that there were instances where robberies were committed “within

minutes of each other [and] [i]n close proximity to each other[.]” Curtis testified that

he and Detective Nealy interviewed Lacharles Craige after he was caught fleeing

7
from the adult bookstore robbery. According to Curtis, after interviewing Craige,

Trenton Jackson, Cameron Lucas, and Marquis Clark were identified as suspects.

Curtis testified that a warrant for Clark’s arrest was obtained, he was apprehended

with the assistance of the SWAT team, and Curtis interviewed Clark when he was

in police custody. Curtis agreed that in interviewing Cameron Lucas and Trenton

Jackson, he learned some corroborating information about the numerous aggravated

robberies that were committed by them and by Clark. A video exhibit of Curtis’s

interview with Clark was admitted into evidence.

Detective Ken Nealy, with the Houston Police Department, testified that he

was a task force officer assigned to ATF. Nealy testified that when he is involved in

investigating “crews,” he looks “at those as individuals, at least two to three people,

that have the same common goal, that sometimes they are organized and sometimes

unorganized. But the purpose and the design [of the crew] is to go in and commit a

robbery or aggravated robbery.” Nealy also testified that suspects will often use a

stolen car when committing a crime and abandon it after committing the crime.

Nealy agreed on cross-examination that no DNA evidence linked Clark to the

robberies at the Circle K or the adult bookstore.

Nealy testified that he responded to the robbery at the adult bookstore on

August 23, 2018. Upon arrival at the scene, he saw a truck parked in front of the

business and a wrecked Toyota Corolla that had been returned to the store by a tow

8
truck. Nealy testified that he entered the store, found it “in total disarray,” and spoke

with the security guard, who told him he had been forced to the ground, had a gun

held on him, and had his weapon taken. Nealy also testified that he spoke to the store

clerk, who reported that the suspects “basically took over[]” when they entered the

store, held a gun to her head, and forced her to perform oral sex on two of the

suspects. According to Nealy, the store clerk had triggered the hold-up alarm during

a time when the men left her alone in a back room. Nealy testified that the store clerk

made an identification from photo spreads that was corroborated by the similarity of

other cases, with what he observed from surveillance video, by the gloves and skull

mask worn by Clark at the numerous robberies, and from what Craige, Jackson, and

Lucas told him. Nealy also testified that the surveillance video from the adult

bookstore was “[p]robably the best ever[]” that he had seen because it was clear and

digital.

Nealy testified that he interviewed Lacharles Craige, who was the first suspect

to be arrested. According to Nealy, Craige provided Trenton Jackson’s name, and

after Nealy matched a photo of Jackson from a law enforcement database to the

video from the store, an arrest warrant for Jackson issued. Nealy testified that the

investigation expanded based on statements from Craige and Jackson, and after

receiving a call from a Detective Curtis in Montgomery County about the Circle K

robbery, they determined that the vehicle the suspects used in Montgomery County

9
was the same one the suspects drove to the adult bookstore. According to Nealy, he

was able to “reconcile the video[s]” from both the Circle K and the adult bookstore,

both of which depicted the same crew, including Clark, wearing the same clothes,

behaving in the same manner, and displaying the same make and model firearms.

Nealy agreed that this group of defendants also “had a very keen affinity for Newport

cigarettes[.]”

Nealy agreed that he and Detective Curtis, along with the prosecutor,

interviewed Cameron Lucas in prison, who was forthcoming with information that

linked Clark to the Circle K and adult bookstore robberies. Nealy testified that after

reviewing video footage of robberies at a Denny’s off of FM 1960 and McDonald’s

on FM 1960, robberies in Sugar Land and Missouri City, and at the Shipley’s Donut

store, he noted “they were very similar in the fact that they would basically do a

takeover. They would actually enter the business swiftly armed. They would produce

weapons and actually make demands of the people inside that were in the business.”

After “putting the pieces of the puzzle together[,]” an arrest warrant for Clark was

obtained. Nealy testified that Clark was arrested with the assistance of undercover

officers. Nealy also testified that in a search of Clark’s residence, 1 officers found a

long-sleeved black hoodie that resembled what Nealy had observed on surveillance

The search of the residence was conducted pursuant to consent by the owner,
1

who was Clark’s stepfather, and Clark also signed a consent to search his room.
10
videos of the Circle K and the adult bookstore. Nealy stated that a detective who

specializes in social media had located Clark’s social media accounts, and she

identified a picture posted by Clark about a wreck he had been in that was posted on

August 26, 2018. Nealy also stated that information from Clark’s cell phone

supported the fact that Clark was involved in the Circle K robbery including Google

searches and text messages. Nealy verified that the cell phone obtained was Clark’s

by having Clark use his fingerprint to unlock it. According to Nealy, Clark

consistently denied his involvement. Nealy agreed that a backpack found in the

Dodge truck that was left at the adult bookstore contained Clark’s Texas ID card, a

pair of “working hands gloves[,]” and six unopened packages of Newport cigarettes.

Nealy also agreed that two cartons of Newport cigarettes were recovered from the

Dodge truck. On cross-examination, Nealy agreed that the store clerk at the adult

bookstore had stated there was a mole on Clark’s genitals, but Nealy was unable to

identify any distinguishing marks on Clark in a photograph taken after Clark was

arrested.

The State also called eleven additional law enforcement officers from the

Harris County Sheriff’s Office, the Houston Police Department, the Pasadena Police

Department, the Missouri City Police Department, and the Sugar Land Police

Department to testify. The officers testified about their involvement investigating

the following takeover-style robberies: America’s Inn on July 12, 2018; Shipley’s

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Donuts on July 16, 2018; Subway restaurant on July 20, 2018; Shipley’s Donuts on

July 23, 2018; Denny’s on August 8, 2018; McDonald’s on August 12, 2018; Stripes

gas station and McDonald’s on August 14, 2018; and Pappa’s Son donut shop and

Timewise gas station on August 18, 2018.

Testimony of Victims 2

Tom testified that he and his fiancé Allie stopped at the Circle K store one

night, and there was a four-door Dodge vehicle with all doors open in the parking

lot. Tom testified that a person wearing black clothes, red gloves, and a red bandana

on his face approached their vehicle and demanded that they give him their phones.

Timothy and his fiancé went home and called 911 to report the incident. Timothy

was unable to identify anyone in the courtroom as the person who took their phones.

Allie testified that on August 23, 2018, Tom picked her up after her work shift

ended in the early morning hours, and they stopped at a store to get something to

drink. According to Allie, a man with a gun approached their car and asked for their

phones, and they complied. Allie testified that the man wore all black, red gloves,

and had a red bandana covering his face. Allie testified that the police arrived within

a few minutes, and she gave a statement to the police.

2
We use pseudonyms to refer to the alleged victims. See Tex. Const. art. I,
§ 30(a)(1) (granting crime victims “the right to be treated with fairness and with
respect for the victim’s dignity and privacy throughout the criminal justice
process[]”).
12
 Donald testified that he was working the night shift by himself at the Circle K

on the day of the robbery. The surveillance video from the store was admitted into

evidence and published to the jury. Donald testified that he saw a black Dodge truck

circling around the parking lot before the robbery occurred. According to Donald,

when the men first entered the store, one man jumped over the counter, knocked

over cigarettes, and opened the register. Donald testified that two other men walked

behind the counter, and one put a gun to his head and told him to open the safe.

Donald testified that he was present in court when Craige pleaded guilty to the

robbery, and he recognized Craige as the man who told him to open the register. In

reviewing the surveillance video from the store, Donald identified a man wearing

red gloves who told him to open the safe. Donald agreed that at one point, the man

wearing red gloves tried to open the safe. Donald also agreed that during the robbery,

a customer who was getting gasoline entered the store, and the man in the red gloves

said, “shoot him and let’s go[.]”

Donald testified that the store’s property loss report showed a loss of $172

from the cash box and 64 packs of Newport cigarettes valued at $441. After the men

left the store, Donald called his wife and then called 911. On cross-examination,

Donald agreed he originally told the police that five or six people were involved in

the robbery, but in his estimation, it was “an honest mistake[.]” He agreed that two

13
of the men showed their faces and two did not, but he could tell that one man wearing

a mask was Black because he could see the area around his eyes.

Nathaniel testified that he worked for a security company and on August 23,

2018, he was working the night shift at an adult bookstore in Houston. According to

Nathaniel, at about 3 a.m., four Black men entered the store and held the cashier at

gunpoint. A man wearing red gloves told him to lie on the floor, pointed a gun at

him, kicked him, and took his gun, wallet, and cell phones. Nathaniel testified that

when the men left, they took his car—a black Toyota Corolla—which they wrecked

when the police followed them. Nathaniel recognized his vehicle in the photo

admitted as Exhibit 2-A-1. Nathaniel agreed he watched surveillance video from the

store the night of the robbery, which was admitted into evidence and published to

the jury. He testified that the video showed four men enter the store, and two of the

men had guns, including a man wearing red gloves.

Connie testified that she works at an adult bookstore on US 59, and she agreed

that on August 23, 2018, the store was robbed in the early morning hours. According

to Connie, she and the security guard were at the store at about 2 a.m. when the door

opened, and she saw the reflection of a gun. Connie testified that four men came in,

she saw that two of the men had guns, and one man asked her to take him to the

money. Connie testified that she opened the register that held cash, some of the men

disarmed the security guard, but she was unable to open the safe as the men asked.

14
According to Connie, when the men realized she “was no good to them,” they threw

her in the break room, she was held at gunpoint, a man who was not wearing a mask

made her take off her clothes and perform oral sex on him, and then a man with a

gun who was wearing red gloves also made her perform oral sex on him. Eventually

Connie pressed the panic button in the break room. Connie testified that she heard

the men say “laws[,]” which she understood as their cue to leave, the men left

through the back door of the store, and after they had gone, she used the store phone

to call the police. Connie testified that after the men left, she discovered her cell

phone and backpack were gone as well as two or three hundred items from the store.

Connie testified that she went to Ben Taub for a rape kit exam. According to Connie,

she later identified Craige and Jackson to the police, and she was 80% certain of her

identification of Clark to the police. She also told police that one of the men who

sexually assaulted her had a mole on his genitals.

Amy testified that she was a department manager at a McDonald’s where

several men committed a robbery on August 8, 2018, while she was working.

According to Amy, one of the men fired his gun inside the restaurant, and she hit

one of the men on the head with a coffee pot.

Codefendants Craige, Lucas and Jackson

Lacharles Craige, Cameron Lucas, and Trenton Jackson were charged in

Montgomery County for the aggravated robbery that occurred on or about August

15
23, 2018, and all three men entered guilty pleas, and judgments were entered for all

three. Craige was sentenced to fifty years’ imprisonment, Lucas was sentenced to

thirty years, and Jackson was sentenced to forty years.

Jackson testified at Clark’s trial and told the jury that on the night of August

23, 2018, he, Clark, Craige, and Lucas drove in a black truck to an area north of

Houston. According to Jackson, the four men robbed a convenience store where

Jackson took Newport cigarettes. Jackson testified that the four men entered the

store, they laid the store clerk on the ground, Jackson grabbed Newport cigarettes,

and then asked the clerk to open the safe. According to Jackson, they left in the truck,

and after about twenty minutes, they stopped at another store where they held the

security guard hostage and took his gun, phone, and credit cards, and they also took

store merchandise and about two thousand dollars. Jackson identified himself, Clark,

Craige, and Lucas in photos taken from the convenience store surveillance video and

the adult bookstore surveillance video, and he agreed that Clark was the man

pictured wearing red gloves. Jackson agreed the men left in the security guard’s

vehicle, which they wrecked when the police were chasing them. Jackson testified

that Clark told him he had checked the internet to see if the robbery made the news.

Cameron Lucas testified that he was an inmate at the Gibb Lewis Unit, he had

pleaded guilty to an aggravated robbery that occurred on or about August 23, 2018,

and he had agreed to testify against Clark in exchange for certain charges not being

16
prosecuted against him. Lucas testified that he, Clark, Craige, and Jackson were

together in a black truck on August 23, 2018, they planned to “hit a lick[,]” they had

masks and gloves, they found a store that was open, but they did not get much money

there. Lucas looked at photos from the store’s surveillance video, and he identified

himself wearing a hoodie and yellow gloves, Jackson with something pink over his

face, and he identified Clark. Lucas testified that the clerk was unable to open the

safe, and Lucas’s role was to get Newport cigarettes and get money out of the

register. Lucas testified that they decided to “hit another lick[]” because they did not

get much money, and they went to another store within about an hour. Lucas

identified Jackson, Craige, Clark, and himself in photos taken from the surveillance

cameras at the second store, including Clark who was wearing red gloves. According

to Lucas, they were supposed to get money and whatever they could sell from the

store and then leave. According to Lucas, Clark made the cashier perform oral sex.

Lucas testified that when a police officer entered the store at the front door, they left

from the back door and took the security guard’s car, leaving whatever they had

taken from the other store in the black truck. Lucas recalled that, at some point, Clark

asked Lucas where his phone and ID were, and they concluded he left his ID in the

backpack in the truck. Lucas testified that, after a chase, they crashed, and when they

split up, he jumped off the freeway.

17
 Lucas testified that he saw on the news that Craige had been caught, and Lucas

was caught about a week later after Craige informed on him. According to Lucas,

Clark always used a skull mask when they robbed stores, and they always checked

the internet after a robbery to see if the police had any leads. Lucas identified a skull

mask as one that Clark had worn in a robbery at a McDonald’s in Missouri City.

Lucas testified that he did “licks” with the other men over a period of months in

2018 including: a McDonald’s and a gas station in Missouri City about twenty

minutes apart, a Cambodian donut shop, a Dollar Store, a 99 Cent store, an

America’s Inn, a Shipley’s Donuts store, a Shell station, a McDonald’s and a

Subway in Pasadena, a McDonald’s and Denny’s in the FM 1960 area, a Stripes gas

station and a McDonalds in Missouri City near US 59, and a Timewise Shell station

in Sugar Land—although Lucas did not recall that Clark was involved in the

robberies at the Shipley’s Donuts or the Shell station. Lucas also identified a mask

he stole from Academy and sold to Clark that Clark liked to wear during “licks[.]”

After the State rested, the defense did not call any witnesses. The jury charge

included instructions on the law of parties, accomplice-witness testimony, and

extraneous offense evidence.3 The jury found Clark guilty as charged. After a

hearing on punishment, the jury assessed punishment at life imprisonment. Clark

timely appealed.

3
Clark does not raise a challenge to the jury charge in this appeal.
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 Issues

Appellant raises the following issues on appeal:

1. Appellant was denied his constitutional due process right to be
tried solely on the case for which he was indicted.
2. Appellant was denied his constitutional due process right to a fair
trial by the Trial Court’s failure to understand and apply the law
applicable to his case.
3. The Trial court failed to conduct the probative v. prejudicial
balancing test required by T.R.E. Rule 403.
4. The State’s attorney failed in his constitutional and statutory duty
to see solely that justice is done in putting inadmissible evidence
before the jury.
5. Defense counsel was ineffective in failing to object to the
extraneous offenses as being non-contextual.
6. Defense counsel was ineffective in failing to raise a T.R.E. Rule
404(b) objection to the extraneous offense evidence at
guilt/innocence.

Each of Appellant’s issues relates to the admission of evidence of extraneous

offenses for which he was not indicted or prosecuted in this case.

Preservation of Error

In this case, the trial court initially allowed the State to introduce evidence of

the aggravated robbery at the adult bookstore but required the State to omit facts

about the alleged sexual assault. The court explained:

I think you are able to talk about that there was another aggravated
robbery and that he became a suspect, that’s how they honed in on him,
and the links to him in order to show that -- because I think the car at
the other place and the car at the first place, I think that that to me is
part and parcel of the first offense, our offense.

19
Defense counsel stated, “We are not going to object to that.…We are not going to

make an objection at that point.” In addition, the State put on testimony by law

enforcement officers and by codefendants and other evidence of other aggravated

robberies during its case in chief. Later during trial, the defense agreed to the

admission of an alleged sexual assault at the adult bookstore because the defense

believed the evidence included “exculpatory material[.]” Specifically, the victim of

the sexual assault described one of her assailants as having a mole on his genitals.

To preserve error for appellate review, the record must show that the objection

“stated the grounds for the ruling that the complaining party sought from the trial

court with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context[.]” Tex. R. App. P.

33.1(a)(1)(A). The point of error on appeal must comport with the objection made

at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Thomas

v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). Therefore, even when a

party fails to properly object to alleged constitutional errors at trial, the errors can be

forfeited. Id. (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)).

In his first issue on appeal, Appellant argues that because of the admission of

extraneous offense evidence—that is, other aggravated robberies—he was

prosecuted for a “criminal episode” under sections 3.01 and 3.02 of the Penal Code,

which denied him the “constitutional right to be tried solely for the offense for which

20
he was indicted.” Appellant did not make these objections at trial, and there is

nothing in the record that indicates the trial court or prosecutor knew that Appellant

was making this or a similar due-process objection. Moreover, the jury charge does

not reflect that the case was submitted to the jury as a “criminal episode” offense,

but rather that the jury was asked to decide only the offense charged in the

indictment. Appellant never put the court on notice of his alleged due-process

complaint, nor did he argue to the trial court that he believed he was being denied a

fair trial, and the issues Appellant raises on appeal were forfeited. See Clark, 365

S.W.3d at 339-40 (explaining that evidentiary objections at trial do not preserve a

due process claim for appeal). In addition, Appellant cites no authority for his

argument that the admission of the extraneous-offense evidence denied him due

process. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992) (refusing

to address an argument as inadequately briefed where appellant cited no

constitutional provision, statutory authority, or case law in support of his claim). We

overrule Appellant’s first issue.

Appellant’s fourth issue argues that the prosecutor “failed in his constitutional

and statutory duty to see solely that justice is done” in putting inadmissible evidence

before the jury. “Prosecutorial misconduct is generally an independent basis for

objection that must be specifically urged [at trial] in order for error to be preserved.”

Taylor v. State, Nos. 09-16-00303-CR & 09-16-00307-CR, 2018 Tex. App. LEXIS

21
3426, at *16 (Tex. App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not

designated for publication) (citing Hajjar v. State, 176 S.W.3d 554, 566 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d)). The proper method of preserving

error for a claim of prosecutorial misconduct is to (1) object on specific grounds,

(2) request an instruction that the factfinder disregard the comment, and (3) move

for a mistrial. See Joyner v. State, 548 S.W.3d 731, 735 (Tex. App.—Houston [1st

Dist.] 2018, pet. ref’d) (citing Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App.

1995); Hajjar, 176 S.W.3d at 566).

We have examined the entire record and Appellant never made this objection,

nor did he request an instruction that the factfinder disregard the comment, nor move

for a mistrial on this basis. Appellant did not preserve the issue for appeal. See Tex.

R. App. P. 33.1(a)(1); Joyner, 548 S.W.3d at 735-36; Patterson v. State, 496 S.W.3d

919, 929 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (“Defense counsel did

not assert that the State…engaged in prosecutorial misconduct. Thus, Patterson has

not preserved any alleged prosecutorial misconduct issue for appellate review.”);

Hajjar, 176 S.W.3d at 566 (addressing prosecutorial misconduct argument and

concluding: “By failing to object on this theory at trial, appellant has preserved

nothing for our review.”). Moreover, as we have already noted, Appellant did not

object to the evidence of the robbery at the adult exotic store at trial. We overrule

Appellant’s fourth issue.

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 Admission of Evidence

In his second issue on appeal, Appellant argues that he was “denied his

constitutional due process right to a fair trial by the Trial Court’s failure to

understand and apply the law applicable to his case.” Specifically, he argues that the

trial court (1) “was not clear” on the standard for admission of same contextual

transaction evidence versus extraneous offense evidence to prove identity under

Rule 404(b) and (2) “confus[ed] evidence admissible for a [Penal Code] Chapter 3

‘criminal episode’ with the evidence admissible to prove the one indicted aggravated

robbery.” Appellant argues that the trial court’s “failure to understand and apply the

law applicable to his case[]” resulted in a denial of his constitutional due process

right to a fair trial. Appellant failed to make this objection at trial. Moreover, we

conclude that any error in the admission of evidence is generally non-constitutional

error and subject to a harmless error analysis. See Tex. R. App. P. 44.2(b). Appellant

complains that admission of evidence of five robberies in addition to the one for

which Appellant was tried did not meet the standard for same contextual transaction

evidence and that the second robbery at the adult bookstore was not needed to

explain the Circle K robbery for which Appellant was indicted.

Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

23
(op. on reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of

reasonable disagreement[.]” Id. “The erroneous admission of evidence is non-

constitutional error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App.

2018) (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). “Non-

constitutional errors are harmful, and thus require reversal, only if they affect

Appellant’s substantial rights.” Id. (citing Tex. R. App. P. 44.2(b)). The Court of

Criminal Appeals has construed this to mean that “an error is reversible only when

it has a substantial and injurious effect or influence in determin[ing] the jury’s

verdict.” Id. (citing Taylor, 268 S.W.3d at 592). “If we have a fair assurance from

an examination of the record as a whole that the error did not influence the jury, or

had but a slight effect, we will not overturn the conviction.” Id. If the trial court’s

evidentiary ruling is correct on any theory of law applicable to that ruling, it will not

be disturbed even if the trial court gave the wrong reason for its correct ruling. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing Osbourn v.

State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Sewell v. State, 629 S.W.2d 42,

45 (Tex. Crim. App. 1982); Shugart v. State, 32 S.W.3d 355, 362 (Tex. App.—Waco

2000, pet. ref’d)).

Applicable Law

“Same transaction contextual evidence” is evidence that “imparts to the trier

of fact information essential to understanding the context and circumstances of

24
events which, although legally separate offenses, are blended or interwoven.”

Desormeaux v. State, 362 S.W.3d 233, 238 (Tex. App.—Beaumont 2012, no pet.)

(citing Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Rogers v.

State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). Same transaction contextual

evidence reflects the context in which a criminal act occurred and recognizes that

events do not occur in a vacuum, and “a jury has a right to hear what occurred

immediately before and after the offense in order to realistically evaluate the

evidence.” McDonald v. State, 148 S.W.3d 598, 601 (Tex. App.—Houston [14th

Dist.] 2004), aff’d, 179 S.W.3d 571 (Tex. Crim. App. 2005) (citing Wesbrook v.

State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)).

To be admissible under Rule 404(b)—that is, relevant for a purpose other than

to show character conformity—same transaction contextual evidence must be

necessary to the jury’s understanding of the offense. Id. at 601-02. Thus, necessity

may be the “other purpose” for which the evidence is admissible under Rule 404(b).

Id. at 602 (citing Rogers, 853 S.W.2d at 33). Necessity can exist either because:

(1) 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

describing the other; or (2) the same transaction contextual evidence tends to

establish some evidentiary fact, such as motive or intent. Id. In addition, upon a

timely request, the State must give notice of its intent to introduce Rule 404(b) “other

25
purpose” extraneous offense evidence “other than that arising in the same

transaction.” See Tex. R. Evid. 404(b). Although necessity is required for same

transaction contextual evidence to be relevant under Rule 404(b) for a purpose other

than character conformity, there is no indication that it is required in order for same

transaction contextual evidence to simply be evidence “arising in the same

transaction” and thereby exempt from the Rule 404(b) notice rule. Id.

Although admissible under Rule 404(b), evidence may still be excluded under

Rule 403 “if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403.

“Rule 403 favors admissibility of relevant evidence, and the presumption is that

relevant evidence will be more probative than prejudicial.” Montgomery, 810

S.W.2d at 389; Gittens v. State, 560 S.W.3d 725, 732 (Tex. App.—San Antonio

2018, pet. ref’d). Once a trial court determines that extraneous offense evidence is

admissible under Rule 404(b), the trial court must, upon proper objection by the

opponent of the evidence, weigh the probative value of the evidence against its

potential for unfair prejudice. Id.; see Tex. R. Evid. 403.

[W]hen undertaking a Rule 403 analysis, [the trial court] must balance
(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
26
 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.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Once a Rule 403

objection as to prejudice versus probative value is invoked, the trial court has no

discretion whether to engage in the balancing test required by that rule. Williams v.

State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). However, the trial court is not

required to place any findings it makes or conclusions it draws on the record when

engaging in the balancing test, and the trial court is presumed to engage in the

required balancing test once Rule 403 has been invoked. Id.

In this case, the trial court conducted a pretrial hearing on the admissibility of

evidence of the robbery at the adult bookstore. The State argued that evidence of the

adult bookstore robbery was admissible as same transaction contextual evidence,

and the defense agreed that was the legal theory before the court. The court heard

evidence that the robbery at the adult bookstore occurred about thirty minutes after

the Circle K robbery, and that Clark was ultimately identified based on evidence

that the same black truck was identified at both scenes, the suspects wore the same

kind of clothing, both were “takeover” style robberies, Clark’s Texas-issued ID card

was found in the bag inside the truck found at the second robbery, and a “significant

amount” of cigarettes taken from the Circle K were found in the abandoned black
27
truck at the adult bookstore. Clark’s trial counsel agreed that the ID card found at

the adult bookstore identified Clark.

Later, during the trial, the court stated that identity had been placed at issue,

the defense agreed, and the court further stated that under Rule 404(b), evidence of

other bad acts was admissible and “that second one on the same day within the 20

or 30 minutes could lend some relevance on the issue of identity.” The defense

objected that only evidence of similar bad acts would be admissible and requested

the court to limit the evidence to what was relevant to a common scheme or plan.

The court agreed that because there were so many other bad acts, it would limit the

State to evidence of the “takeover robberies[]” that happened very close in time to

the charged offense and that involved the codefendants. Clark’s trial counsel told the

court that, after having spoken with Clark, the defense agreed to admission of

evidence of the robbery at the adult bookstore because “we believe there is

exculpatory material that can be provided to the jury[]” and that Clark was “in

agreement with that.” The State told the court that it had agreed with Clark’s trial

counsel not to bring in evidence of a sexual assault by Clark and Craige that occurred

about two weeks before the robbery for which Clark had also been charged. The

court asked Clark if he understood and agreed to this, and he said “Yes[.]”

The record reflects that the defense agreed that identity was at issue and

consented to admission of the evidence of the robbery at the adult bookstore.

28
Therefore, Appellant has waived error as to this issue. Further, the defense also

requested that the court limit admission of extraneous offense evidence to those that

show a common scheme or plan. See Tex. R. Evid. 404(b). We conclude, based on

the record before us, that the trial court limited the admission of extraneous offense

evidence committed prior to the Circle K and adult bookstore robberies to other

similar “takeover robberies” and the trial court concluded that identity was at issue

and the other offenses tended to prove a common scheme or plan under Rule 404(b).

Therefore, we cannot say that the trial court’s ruling was outside the zone of

reasonable disagreement. We conclude that the trial court did not err in admitting

evidence of extraneous offenses under Rule 404(b). We need not address whether

any such evidence was also admissible as same transaction contextual evidence. See

Tex. R. App. P. 47.1. Because we find no error, we also need not determine if any

such error was harmful, resulted in an improper verdict, and affected Clark’s

substantial rights. See Tex. R. App. P. 44.2(b); Gonzalez, 544 S.W.3d at 373. That

said, we also find that Appellant’s brief fails to present a harm analysis or explain

how the admission of the complained-of evidence affected his substantial rights or

resulted in an improper verdict. See id. We overrule Appellant’s second issue on

appeal.

Appellant’s third issue argues that the trial court failed to conduct a Rule 403

balancing test in admitting evidence of extraneous offenses and that “[t]he

29
extraneous aggravated robbery offense evidence was not needed by the State to

prove anything[.]” As we have already noted above, the trial court stated that identity

was at issue, to which the defense agreed, and evidence of the takeover-style

robberies tended to prove a common scheme or plan. The appellate record does not

affirmatively show that the trial court refused to conduct a Rule 403 balancing test.

We presume the trial court engaged in a balancing test before admitting the evidence.

See Williams, 958 S.W.2d at 195. Furthermore, Rule 403 favors the admission of

relevant evidence, and relevant evidence carries a presumption that it is more

probative than prejudicial. See id. at 196. Appellant has failed to overcome the

presumption that the evidence was more probative than prejudicial. See id. at 195-

96. We overrule Appellant’s third issue.

Effective Assistance of Counsel

Appellant’s fifth and sixth issues argue that he was deprived of the effective

assistance of counsel because his trial counsel failed to object to the admission of

extraneous-offense evidence as “non-contextual” and he also failed to object to the

extraneous evidence as inadmissible under Rule 404(b). We analyze these issues

together.

To establish ineffective assistance, a defendant must satisfy the following test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
30
 deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Perez v. State, 310

S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Allegations of ineffective assistance

“must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). “Appellate review of defense counsel’s representation is

highly deferential and presumes that counsel’s actions fell within the wide range of

reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). The appropriate context is the totality of the representation;

counsel is not to be judged on isolated portions of his representation. See Thompson,

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). The

challenged conduct will constitute ineffective assistance only when “the conduct was

so outrageous that no competent attorney would have engaged in it.” See Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

“The two prongs of Strickland need not be analyzed in a particular order[.]”

See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Failure to

satisfy either prong of Strickland is fatal. See Ex parte Martinez, 195 S.W.3d 713,

730 n.14 (Tex. Crim. App. 2006). “The Court of Criminal Appeals has noted that

the standard for showing prejudice on a claim of ineffective assistance of counsel is

31
more demanding than the showing needed to prove harm under the Rules of

Appellate Procedure.” Thomas v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston

[1st Dist.] 2013, pet. ref’d) (citing Martinez, 330 S.W.3d at 903). “To prevail,

[appellant] must show a reasonable probability that but for his counsel’s deficient

performance, the result of the proceeding would have been different.” Id. (citing

Bone, 77 S.W.3d at 833).

To successfully assert that trial counsel’s failure to object amounted to

ineffective assistance, the applicant must show that the trial judge would have

committed error in overruling such an objection. See Martinez, 330 S.W.3d at 901

(citing Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State,

931 S.W.2d 564, 566 (Tex. Crim. App. 1996)).

Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial to demonstrate in the appeal that trial counsel provided

ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as

ineffective, counsel should normally be given an opportunity to explain the

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). When counsel has not been given an opportunity to explain the challenged

actions, we will find deficient performance only if the conduct was “so outrageous

that no competent attorney would have engaged in it.” Id.

32
 Clark did not file a Motion for New Trial or present any evidence as to the

basis for counsel’s reasoning for why he did not object to the admission of

extraneous-offense evidence as “non-contextual” or otherwise object to the evidence

as inadmissible under Rule 404(b). Because the record is silent as to the reasons for

counsel’s conduct, we may not speculate to find counsel’s performance deficient.

See Bone, 77 S.W.3d at 835. That said, as we have noted, the trial court conducted a

pretrial hearing on the defendant’s objections under Rule 404(b). Furthermore, the

record in this case reflects that Appellant’s trial counsel objected to the admission of

extraneous-offense evidence at several points during the trial. Appellant’s brief does

not specify when or how trial counsel should have objected in addition to these

instances. Moreover, Appellant’s brief fails to present argument as to how he was

prejudiced by his trial counsel’s alleged deficiencies other than conclusory

statements that he was deprived of his “constitutional right to be tried solely for the

offense for which he was indicted[]” and that it deprived him of a “‘crucible of

meaningful adversarial testing[,]’” citing to Moran v. Burbine, 475 U.S. 412, 431

(1986) (citing United States v. Cronic, 466 U.S. 648, 656 (1984)). A conclusory

statement that the defendant was prejudiced by his trial counsel’s allegedly deficient

performance is inadequate to establish prejudice under Strickland. See Ex parte

Parra, 420 S.W.3d 821, 828 (Tex. Crim. App. 2013). We conclude that Appellant

has not met his burden to show that his trial counsel’s performance was deficient or

33
that, but for counsel’s deficient performance, the result of the proceeding would have

been different. See Thomas, 445 S.W.3d at 210 (citing Bone, 77 S.W.3d at 833); see

also Martinez, 195 S.W.3d at 730 n.14. We overrule Appellant’s fifth and sixth

issues.

Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on June 23, 2021
Opinion Delivered November 24, 2021
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

34