Nos. 14-08-00434-CR, 14-08-00546-CR
Opinion filed September 15, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 1091458, 1091459.
Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.
JOHN S. ANDERSON, Justice.
This is a consolidated appeal from two separate trials where appellant, Leonard Tyrone Teal, was found guilty by two separate juries of two felony offenses of aggravated robbery. In trial court cause number 1091458, the jury assessed punishment at forty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In trial court cause number 1091459, the jury assessed punishment at ninety-nine years' confinement in the Institutional Division of the Texas Department of Criminal Justice.See Tex. Penal Code Ann. § 29.03 (Vernon 2003). On appeal from the conviction of the September robbery, appellant contends the trial court erred in (1) denying his motion to suppress pretrial line-up identification, (2) admitting evidence of a similar robbery alleged to have been committed by appellant, and (3) admitting evidence of cocaine found in appellant's vehicle at the time of his arrest. On appeal from the conviction of the October robbery, appellant contends the trial court erred in (1) denying his motion to suppress pretrial line-up identification, (2) admitting evidence of a similar robbery alleged to have been committed by appellant, and (3) admitting evidence of illegal contraband found on his person and in his vehicle at the time of his arrest. Finding no reversible error, we affirm.
This cause number will be referred to as the September robbery.
This cause number will be referred to as the October robbery.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2006, Darwing Flores was working as a shift supervisor at a CVS pharmacy on Westheimer and Eldridge in Houston, Texas. Between 9 and 10 p.m., a customer asked Flores to open a locked watch case for him so he could look at some of the watches. Flores went to the manager's office to retrieve the watch case key and was closely followed by the customer. As Flores entered the office, the customer pulled out a black handgun, pointed it at the back of Flores's head, and told Flores to give him all the money in the safe and if Flores did not cooperate he would hurt him. Flores emptied the safe and gave the customer, now robber, all the money. While Flores was emptying the safe, the robber told Flores he was from Louisiana, had lost everything, and would only hurt Flores if necessary. After taking the money, the robber made Flores lie down on the floor and then tied Flores's hands together with a telephone cord, tied his feet together with a necktie, and gagged him with a piece of paper. After waiting until he heard the robber leave the store, Flores tore through the phone cord and contacted the police. Flores described the robber to the police as a five foot seven inch tall African-American male wearing a black hat, white shirt, and blue pants. The day after the robbery, Houston Police Officer Catherine Truhan went to the CVS pharmacy to take fingerprints from some of the items the robber handled. Officer Truhan lifted fingerprints from the watch case and collected a piece of paper that was allegedly used to gag Flores. Truhan sent the piece of paper and prints she lifted from the watch case to the latent print lab for further processing. Houston Police Officer Jimmy Schraub testified he examined the prints lifted from the watch case and those on the piece of paper against fingerprints he lifted from the defendant's table during trial. Officer Schraub testified none of the prints lifted from the watch case matched appellant's fingerprints. He did determine, however, appellant's right thumb print and two partial palm prints matched those found on the piece of paper taken from the office of the CVS pharmacy. The print matches found on the paper were entered into evidence in both trials. Approximately one month later, on October 22, 2006, Sheree Smith was working as a shift supervisor during the closing shift at a CVS pharmacy at the corner of Bissonnett and Wilcrest in Houston, Texas. A customer asked Smith if she could open a locked case containing digital camera memory cards. Smith opened the case, gave the customer the memory card and answered a few of his questions. Smith then returned to her office and carried on with her work. Approximately two minutes later, she was called out of her office again to help some other customers. After helping the other customers, Smith returned to her office. While unlocking the door to her office, the customer who had earlier asked about the digital camera memory card approached Smith and demanded she open the door to the office. Smith testified she opened the door because the customer raised his shirt and showed her the handle of a gun in his waistband. Once they were in the office, the customer removed the gun from his waistband, pointed it at Smith and ordered her to give him the money from the cash drawers sitting on the desk. Smith found an envelope to hold the money and both she and the customer, now robber, put the money in the envelope. While they were in the office, the robber told Smith he was from Louisiana and he did not have anything to lose. The robber took the envelope of money and tied Smith's hands together with a telephone cord. After waiting for the robber to leave the store, Smith untied herself and called the police. Smith told the police the robber stood around five feet six or seven inches tall, wore a white ball cap, sunglasses, a black shirt, had salt and pepper sideburns, and a distinctive voice. Eventually, the Houston Police Department learned of a license plate number connected with another, similar CVS robbery occurring around the same time period. The police connected this license plate with a 2006 black Dodge Magnum. On November 3, 2006, Houston Police Officer Michael Lombardo conducted a traffic stop on a 2006 black Dodge Magnum. Officer Lombardo testified appellant was driving the vehicle and his cousin, Andre Teal, was sitting in the passenger seat. In both trials, Officer Lombardo testified that while searching appellant's vehicle he found a gun, a CVS bag containing approximately $3,600 cash, and a social security card in appellant's name. Additionally, during the trial for the September robbery, the prosecutor elicited from appellant that he also had 11.4 grams of powder cocaine in his vehicle and less than a gram of crack cocaine in his pocket when Officer Lombardo pulled his vehicle over and arrested him. After arresting appellant and his cousin, Officer Lombardo escorted them to the police station and they participated in a line-up. Houston Police Officer Colleen Guidry testified that she selected the participants for the line-up. Before compiling the line-up participants, Officer Guidry called four victims of CVS robberies in the Houston area, including Darwing Flores and Sheree Smith. Officer Guidry asked them to come to the police station for a possible identification of the person who robbed them. Three of the four witnesses positively identified appellant as the robber. The fourth witness tentatively identified appellant as the robber. Officer Guidry testified she included both appellant and his cousin in the same line-up because both were suspects and there were not enough willing line-up participants to create two different line-ups. Officer Guidry admitted it would have been better to have two separate line-ups because of the discrepancy in height between appellant and his cousin. Appellant's cousin, Andre Teal, is six feet, one inch tall and weighs 220 pounds, whereas appellant is five feet, seven inches tall and weighs 175 pounds. Officer Guidry testified all line-up participants were African-American, generally were the same size, build, and age, had the same hair color, and all wore civilian clothing. Darwing Flores and Sheree Smith both testified there was nothing unique or different about appellant to suggest appellant was the person the police suspected to be the robber. A video recording of the line-up was introduced into evidence in both trials. In trial on the September incident appellant was convicted of aggravated robbery and sentenced to forty years' confinement. In trial on the October incident appellant was convicted of aggravated robbery and sentenced to ninety-nine years' confinement. Appellant timely appealed both his convictions. DISCUSSION
In his appeal from the judgment on the September robbery, appellant contends the trial court erred when it denied appellant's motion to suppress the pretrial line-up identification and when it admitted evidence of extraneous offenses during the guilt/innocence phase of his trial. In his appeal from the judgment on the October robbery, appellant contends the trial court erred when it denied his motion to suppress the pretrial line-up identification and when it admitted evidence of extraneous offenses during both the guilt/innocence and punishment phases of his trial. Finding no reversible error we affirm the decisions of the trial courts. I. Did the trial court err in denying appellant's motion to suppress the pretrial line-up identification?
In the first issue in both of his briefs, appellant contends the pretrial line-up was impermissibly suggestive because there was a "huge discrepancy" between the physical characteristics of the participants in the line-up. A. Standard of Review
In reviewing the trial court's decision on the admissibility of a pretrial line-up identification, we defer to the trial court's rulings on mixed questions of law and fact if they turn on the credibility and demeanor of witnesses. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). However, we review de novo mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). In this case, the question of whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. See id. at 773. Accordingly, we apply a de novo standard of review. B. Analysis
A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). We apply a two-step inquiry to determine whether the trial court erred in denying a motion to suppress a pretrial identification: (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable misidentification at trial. Barley, 906 S.W.2d at 33. An analysis under these steps requires an examination of the "totality of the circumstances" surrounding the particular case and a determination of the reliability of the identification. Id. A defendant bears the burden of establishing, by clear and convincing evidence, the pretrial identification procedure was impermissibly suggestive. Id. at 33-34. First, we review whether the pretrial identification was impermissibly suggestive. Id. Suggestiveness in a line-up may be created by the manner in which the pretrial identification procedure is conducted; for example, by police pointing out the suspect or suggesting that a suspect is included in the line-up. Id. at 33. It may also be created by the content of the line-up itself, if the suspect is the only individual closely resembling the witness' prior description. Id. "`A line-up is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect.'" Brown v. State, 29 S.W.3d 251, 254 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (quoting Withers v. State, 902 S.W.2d 122, 125 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd)). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height, or age. Id. However, it is not essential that all the individuals be identical; neither due process nor common sense requires such exactitude. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Minor discrepancies between lineup participants will not render a line-up impermissibly suggestive. Brown, 29 S.W.3d at 254. Appellant contends his line-up did not contain six people who were similar enough in their appearances to avoid suggesting to the witnesses who the police believed to be the offender. The line-up was composed of six African-American males ranging from five feet six inches to six feet one inch tall, weighing between 145 and 250 pounds. During the suppression hearing, Officer Guidry testified all of the participants were dressed in civilian clothing, had generally the same build, same amount of facial hair, similar hairstyles, and similar complexions. When viewing the video recording of the line-up, one can see there are three participants, including appellant, who are within a shorter height range and three participants within a taller height range. Otherwise, the participants all appear to have similar builds, facial hair, and hairstyles. There was nothing about the line-up that singled out appellant or drew particular attention to him. We conclude appellant has not demonstrated by clear and convincing evidence the line-up was impermissibly suggestive. See Barley, 906 S.W.2d at 34 (holding line-up was not impermissibly suggestive where, despite height discrepancies, participants had similar features and were of similar build); Cienfuegos v. State, 113 S.W.3d 481, 491 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (holding line-up was not impermissibly suggestive where participants had similar facial hair, all were Hispanic, wore civilian clothes, were of similar age, height and build, with the exception of one participant who was obviously older and shorter than the others); compare Brown 29 S.W.3d at 254 (concluding line-up likely rose to impermissibly suggestive level where there was a great difference between the heights of the other four participants in the line-up and appellant). Because we hold the line-up was not impermissibly suggestive, we need not address the second step of the inquiry, whether the impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable misidentification at trial. See Page v. State, 125 S.W.3d 640, 647 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Accordingly we overrule appellant's first issue on appeal from both convictions. II. Trial of the September Robbery
On appeal from the conviction of the September robbery, appellant contends the trial court erred in admitting evidence of a similar robbery alleged to have been committed by appellant, and in admitting evidence of cocaine found in appellant's vehicle at the time of his arrest. A. Testimony of Sheree Smith
Appellant contends the trial court erred by allowing Sheree Smith to testify about an alleged robbery that occurred in October 2006 at a CVS store where Smith was working. 1. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will reverse a trial court's decision to admit or exclude evidence only when that decision falls outside the zone of reasonable disagreement. Id.2. Analysis Appellant contends the admission of Sheree Smith's testimony about the October robbery, during trial of the September robbery, had no relevance other than to show character conformity, and the danger of unfair prejudice substantially outweighed its probative value. Character Conformity
The general rule is the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008). 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. Id. One of the main rationales for admitting extraneous offense evidence is to prove the identity of the offender. Id. at 88. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crimes and the uncharged misconduct are so distinctively similar that they constitute a "signature." Id. 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. Id. But if the similarities are "generic," i.e. typical of the crime, they will not constitute a "signature crime." Id. In order for extraneous offense evidence to be admissible under a theory of identity, the extraneous offense must not only be similar to the charged offense, but identity must be a controverted issue. See Jones v. State, 587 S.W.2d 115, 117 (Tex. Crim. App. 1978) In this case, appellant placed his identity in issue by asserting an alibi. See id. at 119. Appellant claimed he was suffering from a spider bite on the date of the offense and was either resting at home with his girlfriend or was at the hospital. Appellant's girlfriend corroborated appellant's alibi. Once the issue of identity has been raised, evidence of extraneous offenses is admissible to prove identity if there are distinguishing characteristics common to both the extraneous offense and the offense for which the accused is on trial. Id. Here, both offenses occurred at CVS stores in the southwest side of Houston. In both incidents the suspect asked a supervisor to open a locked display case and forced the supervisor into the office with a gun. The suspect then demanded that the supervisors give him all the money and forced the supervisors to place the money into either a bag or envelope. While the supervisors handed over the money, the suspect told the supervisors that he was from Louisiana, had nothing to lose, and did not want to hurt them, but would if they did not cooperate. After the supervisors gave the suspect the money, the suspect tied up their hands with a telephone cord and asked them not to make any moves until he was out of the store. We conclude the trial court did not abuse its discretion in determining there were sufficient similarities in the two robberies to find the testimony of Sheree Smith relevant to the issue of appellant's identity. See Tex. R. Evid. 404(b). In particular, we hold the statements made by the suspect in the course of the robberies, the use of a telephone cord to tie up the complainants, and the distinct way the suspect asked the supervisor to open a display case, and then forced him or her into the office are sufficiently unique to constitute a "signature crime." See Burton v. State, 230 S.W.3d 846, 850-51 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Accordingly, we hold the extraneous offense was not admitted for the purpose of proving character conformity as appellant contends, but rather for the permissible purpose of proving the suspect's identity. See id. at 849. Unfair Prejudice
Texas Rule of Evidence 403 provides relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. When undertaking a Rule 403 analysis a 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 a 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. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). First, the extraneous offense, in this case, is highly probative on the issue of identity because of its similarity to the charged offense. See Burton, 230 S.W.3d at 851 (citing Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)). Additionally, the evidence was only introduced after appellant asserted an alibi, thus making the evidence probative to disprove the appellant's alibi defense. See Cruz v. State, 122 S.W.3d 309, 313 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Second, we look at the State's need for the evidence. The State had fingerprint evidence linking appellant to the offense, the testimony of Flores, and the line-up identification evidence. However, all of this evidence was called into question by defense counsel. Therefore, all the evidence bearing on identity was disputed, thus elevating the State's need for extraneous offense testimony. See Gigliobianco, 210 S.W.3d at 641 (stating "a proponent's need for a particular piece of evidence is reduced when the proponent has other compelling or undisputed evidence to establish the proposition or fact") (emphasis added). The two above factors are weighed against the remaining four counterfactors. See id. The first counterfactor is whether the evidence has the potential to impress the jury in an irrational way or suggest a decision on an improper basis. Id. The aggravated robbery testimony is not so graphic or appalling that it would impress the jury in some irrational, but indelible way or suggest a decision on an improper basis. Cf. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (holding the offense of abuse of a corpse could potentially affect the jury in an emotional way). Additionally, the trial court gave a limiting instruction on how the jury was to use the evidence before the extraneous offense came in. See Burton, 230 S.W.3d at 851. The second counterfactor refers to a tendency to confuse or distract the jury from the main issue in the case. Gigliobianco, 210 S.W.3d at 641. Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues. Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). The extraneous offense testimony in this case was presented after all the evidence of the charged crime was presented. Additionally, it did not consume an inordinate amount of time. The record indicates Smith was the first of two witnesses to testify on the second and final day of the guilt/innocence stage of trial; both sides rested by mid-morning. Eight witnesses testified on the full day before. The third counterfactor asks whether the evidence had any tendency to mislead the jury. "Misleading the jury," refers to a tendency of an item of evidence to be given undue weight by the jury that has not been equipped to evaluate the probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. For example, `scientific' evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence. Id. The nature of the aggravated offense testimony does not lend itself to artificial weight. Smith is not an expert and, furthermore, was subject to cross examination on her identification. There is nothing about her testimony that would cause jurors to improperly rely on her statements. Finally, we look at whether the evidence would repeat evidence already admitted. None of the prior witnesses testified to other similar CVS robberies, therefore, her testimony was not repetitive of other evidence already admitted. After weighing all the factors, we hold the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. Accordingly, we hold the trial court did not err in admitting the testimony of Sheree Smith in the trial on the September robbery. B. Cocaine Evidence
Appellant argues the trial court erred by admitting evidence that 11.4 grams of powder cocaine were found in appellant's vehicle at the time of his arrest. He contends the evidence of cocaine had no relevance to the robbery and had no purpose other than to impermissibly show bad character. Appellant properly preserved this complaint on appeal by asserting a specific and timely objection and obtaining a ruling on his objection. See Wilson, 71 S.W.3d at 349. 1. Standard of Review
The standard of review for error in the admission of evidence is set forth above in section II. A. 1. 2. Analysis
Before cross-examining appellant, the prosecutor obtained preliminary rulings outside the presence of the jury. In particular, the trial court granted the prosecutor permission to ask appellant whether he was in possession of any contraband when he was arrested, specifically the cocaine found in his vehicle. Appellant objected outside the jury and again when the question was asked. The trial court found the evidence admissible because appellant took the stand and consequently subjected himself to impeachment like any other witness. The court stated appellant created the impression he was a law-abiding citizen and therefore, the cocaine was admissible to rebut such characterization. The State asserts a similar argument on appeal. While it is true a defendant who takes the stand is subject to impeachment like any other witness, it is also true the impeachment of a defendant, or any other witness, must comply with the Texas Rules of Evidence. See Moreno v. State, 22 S.W.3d 482, 485-86 (Tex. Crim. App. 1999). The State cites Texas Rule of Evidence 611(b) for the proposition that a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Tex. R. Evid 611(b). The State is correct in this contention, however, the Texas Rules of Evidence are specific as to what types of evidence may be used to impeach a witness. In particular, Rule 608(b) provides in part, "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Tex. R. Evid 608(b). Appellant's possession of cocaine is a specific act and is inadmissible for the purpose of impeachment.See Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000). Consequently, the trial court erred by admitting this evidence. Because we find error, we must now assess whether the error was harmful. See Tex. R. App. P. 44.2(b). A non-constitutional error that does not affect substantial rights must be disregarded.Id. Appellant argues his substantial rights were affected by the trial court's erroneous admission of evidence. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If the error did not influence the jury, or had but a slight effect, the error is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In assessing the likelihood that the jury's decision was adversely affected by the error, an 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 error, and how the error might be considered in connection with other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A reviewing court may also consider the jury instructions, the State's theory of the case, any defensive theories, closing arguments, and whether the State emphasized the error. Id.; King v. State, 953 S.W.2d 266, 272 (Tex. Crim. App. 1997). Moreover, the Court of Criminal Appeals has also stated that evidence of overwhelming guilt can be taken into consideration in a harm analysis. See Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002). The primary evidence presented by the State in this case consisted of a line-up and in court identification of appellant by the complainant, appellant's finger prints on a piece of paper gathered at the crime scene, the testimony of complainant Darwing Flores, and the extraneous offense testimony of Sheree Smith. This evidence all strongly pointed to appellant as the perpetrator of the charged offense. The defense countered this evidence by asserting an alibi, which was corroborated only by appellant's girlfriend, the mother of one of his children. Evidence appellant was arrested with cocaine in his vehicle was elicited from appellant on cross-examination. Appellant testified the cocaine belonged to his cousin and he was merely holding it for him. After the cocaine was brought up on cross-examination, it was not mentioned again until the prosecutor's closing argument where the prosecutor used it to call into question appellant's credibility. The chief concern in this instance of improperly admitted evidence is the potential of the evidence to cause the jury to convict appellant for character conformity, i.e. he is someone who uses illegal drugs therefore he must have committed the robbery. However, we conclude the overwhelming evidence of guilt, regardless of the improperly admitted cocaine evidence, would have resulted in a guilty verdict. See Coleman v. State, 188 S.W.3d 708, 730 (Tex. App.-Tyler 2005, pet. ref'd.) (where there was ample evidence of guilt, an improper jury argument by prosecutor was harmless); Petruccelli v. State, 174 S.W.3d 761, 769 (Tex. App.-Waco 2005, pet. ref'd.) (where there was more than enough evidence of guilt, the erroneous admission of a violent videotape was harmless). Because the error in admitting evidence appellant had cocaine in his vehicle at the time of his arrest did not affect appellant's substantial rights it was harmless; thus this error must be disregarded. See Tex. R. App. P. 44.2(b). We affirm the conviction of the September 2006 robbery. III. Trial of the October Robbery
On appeal from the conviction of the October robbery, appellant contends the trial court erred in admitting the testimony of Darwing Flores regarding a similar CVS robbery. He also complains about the admission of testimony of two other alleged victims of CVS robberies during the punishment phase of his trial. Additionally, he complains the trial court erred by admitting evidence of illegal contraband found on his person and in his vehicle at the time of his arrest. A. Testimony of Darwing Flores
In his appeal from the conviction of the October robbery, appellant not only complains of the admission of extraneous offense evidence during the guilt/innocence stage, but also to the admission of extraneous offense testimony brought in by two additional alleged victims during the punishment stage. Appellant contends the extraneous offenses had no probative value and were not sufficiently similar to constitute "signature crimes." Because appellant did not object to the admission of the additional extraneous offenses during the punishment stage of his trial he has waived this issue on appeal.See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Consequently, we only look at appellant's arguments in light of Darwing Flores's testimony during the guilt/innocence stage. Appellant contends the trial court erred by allowing Darwing Flores to testify about an alleged robbery that occurred in September 2006 at a CVS store where Flores worked. 1. Standard of Review
The standard of review for error in the admission of evidence is set forth above in section II. A. 1. 2. Analysis
Appellant argues the admission of Darwing Flores's testimony had no relevance other than to show conformity with bad character and, furthermore, the danger of unfair prejudice substantially outweighed its probative value. Character Conformity
As mentioned above, an extraneous offense is admissible under a theory of modus operandi, if the defendant first puts his identity in issue. See Segundo, 270 S.W.3d at 85-88. Identity can be raised by the defense during cross-examination when the identifying witness is impeached on a material detail of the identification. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). A material detail simply means a detail that is relevant to the reliability of the identification. Id. at 79. In this case, defense counsel questioned Smith's knowledge of firearms in regard to her identification of the weapon appellant used. While Smith was on the stand, defense counsel pointed out that no lights were on in the office when appellant forced Smith to give him the money, implying Smith's identification could be faulty. See Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). Defense counsel also drew attention to the fact Smith said the most distinctive identifier about the suspect was his voice, but the suspects in the line-up were not asked to say anything more than their height and weight. Moreover, defense counsel asked Smith whether the suspect had any scars, tattoos, or other distinctive features. We hold the cross examination of Smith sufficiently opened the door to extraneous offense evidence by placing identity in issue. Page, 137 S.W.3d at 78-79 (asking "[t]he question of whether defense counsel's cross-examination of the victim raised the issue of identity may be best answered with another question: If it was not about identity, what was it about?"). Because identity was placed in issue, we now turn to whether the extraneous offense is similar enough to the charged offense to constitute a "signature crime." The extraneous offense testimony of Darwing Flores in the October robbery trial is nearly identical to his testimony when he was the complainant in the September robbery trial. By the same token, the testimony of Sheree Smith as the complainant in the October robbery trial is nearly identical to her extraneous offense testimony in the September robbery trial. Consequently, our analysis on whether the extraneous offense testimony is similar enough to the charged crime to constitute evidence of a "signature crime" would be identical to the above analysis in the character conformity portion of section II. A. 2. for the September robbery. In light of that discussion, we hold the extraneous offense testimony of Darwing Flores is similar enough to the charged offense in the October robbery to be considered testimony about a "signature crime." See Segundo, 270 S.W.3d at 88. Unfair Prejudice
The extraneous offense testimony in the trial of the October robbery was presented at a different point in trial and identity was placed in issue by impeachment of an eyewitness identification, rather than by appellant's alibi, as was done in the trial of the September robbery. Therefore, our unfair prejudice analysis is not identical and must be independently scrutinized. Nonetheless, we still weigh the same six factors mentioned in the September robbery analysis. First, we look to the probative value of the evidence. Here, Flores's testimony was probative on the issue of appellant's identity after it was called into question by defense counsel's cross-examination of complainant Smith. Thus, Flores's testimony was used to support Smith's testimony on identification and therefore was highly probative. Next, we address the proponent's need for the evidence. The weight of the second factor will be reduced where the proponent has other compelling or undisputed evidence to establish the proposition or fact. Gigliobianco, 210 S.W.3d at 641. Bearing on the issue of identity, we have Sheree Smith's testimony, line-up and in-court identification, and the appellant's fingerprints at the scene of the crime-all of which were called into question by defense counsel during trial. Therefore, the need for extraneous offense testimony is high because all other identification evidence is disputed. We weigh the two factors above against the remaining four counterfactors. First, the extraneous offense testimony of Smith does not have the tendency to suggest a decision on an improper basis, such as an emotional reaction to graphic evidence. See Bargas v. State, 252 S.W.3d 876, 893 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (where evidence was not lengthy or graphic it is not likely the jury was impressed in some irrational or indelible way). Second, Flores's testimony did not consume so much time it would have confused the jury about which crime the defendant was being charged. He was only one of nine witnesses to testify and his testimony lasted no longer than the complainant's own testimony. Gigliobianco, 210 S.W.3d at 641 (evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues). The third factor is whether the evidence misleads the jury or would cause undue delay. A jury would be unlikely to give Flores's testimony any improper weight because he is neither an expert, nor did he represent that he had any superior knowledge that could potentially lead a jury to place more weight on his testimony. See id. Lastly, Flores's testimony was not cumulative and did not cause undue delay. No victims of other similar CVS robberies testified during the guilt/innocence stage of the trial. See id. After balancing all of the factors, we conclude the probative value of Flores's testimony was not substantially outweighed by the danger of unfair prejudice. Consequently, we hold the trial court did not err in admitting the testimony of Darwing Flores in the trial of the October robbery. B. Illegal Contraband Evidence
In his appeal of the conviction of the October robbery, appellant first contends the trial court erred in admitting a black handgun found in his vehicle during the guilt/innocence stage. Appellant waived this complaint by failing to object to the introduction of this evidence at trial. Wilson, 71 S.W.3d at 349. When the State introduced the handgun through the testimony of Officer Michael Lombardo, appellant not only failed to object, but stated "Judge, I have no objection." Next, appellant contends the trial court erred by admitting evidence of the crack cocaine found on his person and the handgun and cocaine found in his vehicle during the punishment stage of his trial. Appellant also waived these complaints on appeal. Appellant failed to object, and in some instances specifically stated he had no objection to the introduction of this evidence. Id. Accordingly, appellant's second issue on appeal from the trial of the October robbery is overruled. We affirm the conviction of the October 2006 robbery. CONCLUSION
Having found no reversible error, we affirm the judgments of the trial courts.