Opinion
No. 05-09-00290-CR
Opinion Filed November 29, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F-0820669-H.
Before Justices MORRIS, O'NEILL, and FILLMORE.
MEMORANDUM OPINION
A jury convicted appellant Jeffrey Bernard Franklin, Sr. of burglary of a habitation, and the trial court sentenced him to thirty years' confinement. On appeal, he argues the trial court abused its discretion by admitting evidence of an extraneous act. We affirm.
Background
Okina Alford lived in the Southpoint Apartments in Desoto, Texas. Beginning February 27, 2008 through March 4, 2008, Alford started noticing things missing from her apartment. She first noticed a pack of cigarettes missing from her night stand and later noticed her laptop had disappeared. She called the police and reported the stolen laptop. Because there were no signs of forced entry and the doors and windows were locked, she believed someone used a key to enter her apartment. She suspected her friend Devon, who had spent time in her apartment and admitted to stealing in the past. On the evening of March 4, she noticed the wooden frame in her closet, which led to the attic crawl space, was damaged. She believed the thief entered her apartment through her attic. She called police and Officer Randy Allstot responded. He observed the damaged wooden frame and a damaged light fixture in the closet. He also determined the thief likely entered through the attic. Officer Allstot wrote a report but did not go into the attic, take pictures, or gather any physical evidence. Alford later asked the apartment maintenance man, Max Duncan, to change the locks on her doors. She also asked Duncan to inspect the damage to her closet. He looked into the attic area and told Alford he saw raccoon prints and what appeared to be footprints and marks from knees dragging across the dust on the floor between Alford's apartment and the apartment next door. Duncan originally told investigators Alford's neighbors were the only people who shared and had access to Alford's attic space. This information was incorrect. On March 10, 2008, Alford visited a pawn shop near her apartment and found DVDs labeled with her initials and her numbering system. She called the police again, and Corporal Robert Penwarden responded to the call. He asked the clerk for a list of names of individuals who pawned DVDs on February 27, and the clerk provided a list of three names. Corporal Penwarden ran the names and appellant's picture came up in his system. When he showed Alford the photo, she identified appellant as her next-door neighbor. Corporal Penwarden did not investigate the two other individuals who pawned DVDs on February 27; however, Detective Joe Watson, who later became involved in the case, eliminated these two individuals as suspects. As part of his investigation, Detective Watson ran appellant's name through the pawn shop database and discovered he had also pawned a leather jacket on March 4. Alford identified the jacket as hers by the location of a cigarette burn. Detective Watson also prepared a photo line up and showed it to the pawn shop clerks. Andrew Mata positively identified appellant as the man who pawned the DVDs; however, no one identified appellant as the man who pawned the leather jacket. Appellant was arrested and charged with burglary of a habitation. During trial, the State offered evidence, over appellant's 404(b) objection, of another incident involving appellant that occurred on May 28, 2008 in Pleasant Grove. On that day, Officers Timms and Halpain responded to a disturbance call. When officers arrived, the apartment complex was surrounded by people. They told the officers "hey, there's somebody in the attic," and the neighbors could hear the person moving around. It took officers over an hour to enter the attic and investigate because they were trying to determine the safest way to approach the situation. They finally entered an open apartment, which people said belonged to the man they thought was in the attic. When officers went inside the apartment, they observed a hole in the kitchen ceiling that looked like someone had fallen through but covered the hole with a piece of cardboard. Officer Halpain explained it looked like someone adapted the area to get into the attic. They also saw where "the square thing that gets into the attic" had been removed in a hallway closet. Officers secured the area in case the person tried to come back down. They then entered the attic and observed a hole cut in the firewall that provided access to the rest of the attic above the apartments on the second floor. Upon entering the attic, they did not see anyone. After officers accidentally fell through the ceiling, they reentered the attic through an apartment on the other end of the complex. Officer Timms then saw a man with his back turned to him in the shadows. He said the man did not move until he put his hand on him. Officer Timms described the area as a small space from which he had to "extract" the man. The man was identified as appellant. The jury convicted appellant of burglary of a habitation, and the trial court assessed punishment at thirty years' confinement. This appeal followed.Discussion
In his sole issue, appellant challenges the trial court's admission of the May 26, 2008 incident in which he was found in the attic of an apartment complex in Pleasant Grove. He argues the State failed to prove the Pleasant Grove incident beyond a reasonable doubt and that incident was not sufficiently similar to the Desoto burglary to create a signature linking it to him for purposes of identity under rule 404(b). A trial court's 404(b) ruling is reviewed under an abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). Rule 404(b) prohibits the introduction of extraneous bad acts to show character conformity but permits the introduction of such acts for other purposes, including proving identity. Id.; see also Tex. R. Evid. 404(b) ("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 proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."). Therefore, it is the trial court's task to determine whether extraneous offense evidence is relevant to a purpose other than the defendant's propensity to commit crimes or other bad acts. Booker v. State, 103 S.W.3d 521, 530 (Tex. App.-Fort Worth 2003, pet. ref'd). For proof of identity to be a valid purpose for admission of evidence, it must be an issue in the case. Page, 137 S.W.3d at 78. Identity can be raised by defense cross-examination. Id. Further, a defense strategy aimed at undermining a witness's identification raises the issue of identity. Carter v. State, 145 S.W.3d 702, 709 (Tex. App.-Dallas 2004, pet. ref'd). Here, appellant does not dispute that identity was an issue in the case, and the record reveals part of his defensive strategy was that someone else was responsible for the burglary. The jury heard testimony from Alford that she first accused her friend Devon of the burglary because he admitted to stealing in the past. Defense counsel also attacked the credibility of Max Duncan, the maintenance man, because he was the only person who testified to seeing footprints in the attic, and he provided inaccurate information to police regarding who had access to the attic crawl space. Appellant insinuated during closing argument that given the access provided by his job, the maintenance man could have been the thief. Thus, we agree identity was an issue in this case. However, raising the issue of identity does not automatically render extraneous acts admissible. Booker, 103 S.W.3d at 530. Appellant first argues the State failed to prove beyond a reasonable doubt that an extraneous act occurred. He relies on Harrell v. State, 884 S.W.2d 154, 157 (Tex. Crim. App. 1994), which held that the standard of admissibility for extraneous offenses is proof beyond a reasonable doubt that the defendant committed the offense. The State responds an "extraneous offense" refers to prior conduct that constitutes an offense under the penal code, which is different from prior misconduct, which refers to acts society deems to be morally and ethically reprehensible though not inherently criminal. See Templin v. State, 711 S.W.2d 30, 32 n. 1 (Tex. Crim. App. 1986). However, the admission of both extraneous offenses and prior misconduct is analyzed in the same manner. Id. Further, that an incident did not constitute a criminal offense or result in prosecution does not render it inadmissible, if it possesses the requisite similarities to render it admissible on the issue of identity. See Collins v. State, 577 S.W.2d 236, 238 (Tex. Crim. App. 1979); see also Bishop v. State, 869 S.W.2d 342, 345 (Tex. Crim. App. 1993) (noting the plain language of rule 404(b) speaks to "other crimes, wrongs, or acts" and there is no requirement that the evidence must be of another criminal offense or even misconduct in order to fall within the purview of the rule). The State agrees the Pleasant Grove incident was not a conventional extraneous offense; however, it asserts the incident qualifies as prior misconduct and possesses the requisite similarities to be admissible on the issue of identity. We agree. In reaching this conclusion we disagree with appellant's assertion the State failed to prove beyond a reasonable doubt the Pleasant Grove incident. Here, two officers testified they were called out to a disturbance call where they spent several hours on the scene investigating a man crawling around in the attic space of the second floor of an apartment complex. Moreover, both officers testified it was extremely hot in the attic; therefore, a reasonable juror could infer appellant was up to some misconduct at the time regardless of whether the State proved it constituted a criminal offense under the penal code or resulted in prosecution. Thus, we cannot say the trial court abused its discretion by allowing into evidence prior misconduct that the State allegedly failed to prove beyond a reasonable doubt. See, e.g., Bishop, 869 S.W.2d at 345. Next, we must determine whether the common characteristic of entering the attic crawl space through the hole in a closet is so unusual and distinctive as to act as appellant's signature. See Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App), cert. denied, 519 U.S. 951 (1996). "When an extraneous offense is offered to prove identity, the common characteristic or the device used in each offense must be so unusual and distinctive as to be like a signature." Taylor, 920 S.W.2d at 322. That is, to be admissible to show identity, "an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork." Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002). Evidence of an extraneous act which is sought to be admitted for the purpose of proving identity must demonstrate a much higher degree of similarity to the charged offense than extraneous acts offered for other purposes such as intent. Bishop, 869 S.W.2d at 346.[T]here will always be similarities in the commission of the same type of crime . . . What must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim. App. 1972). In determining similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics or mode of committing the offense, the proximity in time between them, and the proximity in location. Johnson, 68 S.W.3d at 651. The factors of remoteness and similarity of an extraneous offense are important, not in and of themselves, but only as they bear on the relevancy and probative value of the offered extraneous offense evidence. Linder v. State, 828 S.W.2d 290, 297 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Appellant relies on several cases to illustrate the court's error in admitting such testimony. See, e.g., Bishop, 869 S.W.2d at 346 (trial court erred in admitting testimony of ex-wife regarding defendant's sexual habits because actions were not so unusual and distinctive to amount to a signature); Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992) (trial court erred in admitting evidence of another sexual assault when the State failed to present any evidence making the sexual abuse "so unusual or idiosyncratic as to signal conclusively that the two offenses were the handiwork of the same individual," but rather presented only general similarities that occur in many sexual molestation cases); Collazo v. State, 623 S.W.2d 647, 649 (Tex. Crim. App. [Panel Op.] 1981) (trial court erred in admitting extraneous offense when the only similarities between the two assaults were they both were committed against adult women as they were returning to their automobiles in public places). We, however, do not find these cases persuasive. The common thread in the above-cited cases is the State failed to present evidence of more than mere repeated commission of crimes of the same type or class. As the court noted in Ford,
We recognize that there will always be similarities in the commission of the same type of crime. That is any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous offense admissible is something that sets it apart from its class or type of crime in general, and marks it distinctly in the same manner as the principal crime.484 S.W.2d at 730. Further, each case inevitably will turn on its own unique facts. Collazo, 623 S.W.2d at 648. Appellant repeatedly argues the Desoto burglary and the Pleasant Grove act contained only one similarity: an attic. The record, however, reveals more than just this similarity alone. In both instances, appellant entered shared attic space from units in which he had special, particularized access. In Desoto, he shared the apartment with his mother, and in Pleasant Grove the apartment was his. The point of entrance into the attic in each instance was through a hole in a closet, from a second floor apartment. Thus, not only is the location similar but the point of entrance is the same. Further, we cannot say that committing burglary by using the attic crawl space to enter into someone's apartment is the typical entrance for such crimes and therefore makes appellant's actions "similar in the commission of the same type of crime." Ford, 484 S.W.2d at 730. Rather, the facts of this case provide the "something that sets it apart from its class or type of crime in general." Id. The unusual and distinctive characteristic common to both incidents (entry into the crawl space of an attic through the closet of a second floor apartment) creates an inference that appellant is the person who committed the Desoto burglary. Id. at 729 (stating the common distinguishing characteristic may be the mode of commission of the crimes); see also Messenger v. State, 638 S.W.2d 883, 887 (Tex. Crim. App. [Panel Op.] 1982], overruled on other grounds by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (trial court properly admitted evidence of extraneous offense because grabbing of the hair, pulling across the room, and asking if any men were present was "something of a signature for appellant" before committing or attempting to commit a sexual assault). Accordingly, the trial court did not abuse its discretion by admitting evidence of the extraneous act for purposes of identity. Even if the trial court erred in admitting such evidence, any error was harmless. The complained-of error is not of constitutional dimension; therefore, we must disregard it unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Carter v. State, 145 S.W.3d 702, 710 (Tex. App.-Dallas 2004, pet. ref'd). A substantial right is affected when the error had a substantial and injurious effect or influenced the jury's verdict. Id. However, a conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing the likelihood the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Id. at 710-11. We may also consider the jury instructions given, the State's theory, any defensive theory, and closing arguments. Id. Here, the jury heard evidence that the wood covering up the entry to the attic crawl space inside Alford's apartment had been damaged, indicating it was the entry point into her apartment. Appellant's mother lived next door to Alford, and appellant shared the apartment with her. The maintenance man also testified the drag marks he saw in the dust on the attic floor led from appellant's mother's apartment to Alford's apartment. Further, the jury heard evidence linking appellant to her stolen property at the pawn shop. The clerk at the pawn shop identified appellant as the man who brought in some of Alford's property. Thus, while the evidence linking appellant to the crime was circumstantial, we cannot say it was so weak that the jury was substantially influenced by the admission of evidence regarding the Pleasant Grove incident. Appellant argues the State emphasized the extraneous act during closing argument to undermine his defensive theory that the maintenance man was responsible for the burglaries. However, the State did not mention the Pleasant Grove incident until its rebuttal, which was after appellant first discussed it. Further, the State emphasized the evidence linking appellant to the Desoto burglary before asking the jurors to "use your common sense" because the maintenance man did not "get so lucky" as to make up a story about appellant, who just happened to be found in another attic three months later. Thus, while the State did discuss the extraneous act in closing, it was not the entire emphasis of closing argument. But see Bordelon v. State, 683 S.W.2d 9 (Tex. Crim. App. 1985) (holding prosecutor's use of the erroneously admitted evidence during closing argument, along with inaccurate recitation of facts, seriously compounded the error and caused harm). Further, there is no evidence the jury had difficulty reaching a verdict. See, e.g., Carter, 145 S.W.3d at 712 (finding harm in admission of extraneous acts when the jury asked to review such evidence and had difficulty in reaching a verdict). Having reviewed and considered the whole record, even if the trial court erred in admitting the evidence, we conclude appellant was not harmed. Accordingly, his sole issue is overruled.