Ernesto Gonzalez v. State ( 2012 )

Affirmed and Memorandum Opinion filed June 19, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00188-CR
___________________
ERNESTO GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1176123
MEMORANDUM OPINION
Appellant, Ernesto Gonzalez, appeals his conviction for capital murder. Tex.
Penal Code Ann. §§ 12.31(a), 19.03(a)(2) (West 2011). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 5:00 a.m. on April 27, 2008, Houston Police officers, including
David Rodriguez, responded to a call reporting a shooting near the intersection of
Westview and Gessner in the Spring Branch area of Houston. The responding officers
eventually located the person who had reported the shooting: Joseph Oliver. Oliver then
directed the police to an apartment complex on Westview. After arriving at the apartment
complex, the officers found the complainant, Horace Luna, slumped over the hood of a car.
(3RR23-32) Additional police arrived at the scene including Ruth Nunez, the crime scene
investigator, and homicide detectives Dan Arnold and John McGalin. The investigators
discovered a small-caliber gunshot wound to the complainant’s back. They also located
an unfired .380 caliber bullet and a piece of PVC pipe that was splattered with blood.
Oliver told the police that shortly before the shooting occurred, he was walking on
the sidewalk of Westview behind two “Mexican dudes.” According to Oliver, he
eventually passed the two men and was continuing to walk near the Westview Gardens
Apartments when he saw a large black sport utility vehicle (“SUV”) that resembled an
Expedition, Tahoe, or Suburban, pull up in front of the two Mexican men. Oliver saw the
front passenger side door open and a single Mexican man get out of the vehicle wearing a
black and white bandana covering his mouth and nose. According to Oliver, this man was
between five feet, six inches and five feet, eight inches tall, he weighed about 160 pounds,
and his head was shaved. Oliver saw the man turn toward the two walking men, point like
he was aiming at them, and demand that they give him their money.1 One of the men
raised his hands into the air and said he did not have any money. At that point, Oliver
began running away and he then heard two gunshots. Oliver hid for about ten minutes.
When he came out of hiding, Oliver saw the complainant awkwardly slumped over on the
trunk of a car, dead. Oliver testified he did not see what happened to the second man. 2
Oliver went to a nearby convenience store to call the police and he flagged down an officer
and directed him to the scene.
The investigating officers eventually determined that the complainant’s murder was
related to seven other armed robberies that occurred in southwest Houston in the two-hour
period before the complainant’s murder. Testimony and evidence admitted during
1
Oliver testified that he never actually saw any type of gun.
2
The police were never able to fully identify or locate the second man.
2
appellant’s trial demonstrated that the seven robberies3 involved a black Tahoe or SUV
and were committed in a manner similar to the complainant’s murder.4
The seven robberies began when Christian Leal and members of his family were
leaving Ruchi’s Restaurant located at 7500 Westheimer. According to Leal, he, his wife,
and his sister-in-law left the restaurant around 3:00 a.m. and got into his vehicle, a black,
2002 Chevrolet Tahoe. Leal testified that after he started the Tahoe, someone pulled his
door open and he then saw a silver gun pointed at him. Leal testified the robber was
wearing a black bandana and he was either black or Hispanic. The robber demanded that
they get out of the Tahoe and for Leal to give him his wallet. At that point, the robber
pulled Leal out of the vehicle and ordered him to lie on the ground. According to Leal, the
robber then got into the Tahoe and drove away.
The second robbery occurred at about 3:30 in the morning at a pool hall located at
7637 Dashwood. In this robbery, a man named Martinez was robbed of his wallet.
The third robbery occurred at a Valero gas station located at 7702 Bellaire.
Mohamad Machlab testified that he went to the Valero station between three and four in the
morning of April 27, 2008. Machlab pulled his vehicle into a parking space. A Ford
Explorer pulled up beside Machlab and a female got out of the Explorer to ask him for
directions. At that point, a black Escalade or Tahoe containing three individuals pulled up
behind Machlab’s vehicle. A single Hispanic male got out of the passenger door on the
driver’s side of the black SUV and proceeded to rob Machlab and the female at gunpoint.
According to Machlab, the robber had a hood up on his head, but there was nothing
covering his face. Machlab testified the robber was between five feet nine inches and five
feet ten inches tall and he used a shiny pistol. After robbing the two of them, Machlab
testified that the robber backed up, got back into the black SUV with the other two
3
One of the seven related crimes was actually an attempted robbery; however, for ease of reference
we refer to all of the related crimes as robberies.
4
Appellant lodged no objections to any of the testimony and other evidence detailing the seven
other robberies.
3
individuals and they drove off. Machlab noticed that when the robber was backing up and
getting into the black SUV, he dropped a wallet. After the black SUV drove off, Machlab
picked up the wallet and he turned it over to the police. The wallet belonged to Martinez,
the man robbed at the pool hall. Machlab eventually picked appellant out of a
photospread and identified him as the man that robbed him at gunpoint.5
The fourth robbery occurred at a Whataburger restaurant located at 3800 Southwest
Freeway at approximately 4:15 a.m. At the Whataburger, Matt Nelson, Brian Alves, and
three female acquaintances were preparing to drive home in two separate cars. As Nelson
was clearing space in his back seat, a black Tahoe pulled up behind their vehicles, blocking
them from moving. After the Tahoe stopped, a single person got out from the driver’s side
and approached Alves and the three females. Alves, who was six feet eight inches tall,
testified the robber was “a little fellow,” he was wearing a hoodie, and he had a bandana
covering most of his face. The “little fellow” was carrying a silverish semi-automatic
pistol and he ordered all of them to lie on the ground and give him their money. While the
robbery was in progress, Alves saw a second man get out of the black Tahoe holding a gun
that looked similar to a sawed-off shotgun that the police later found in appellant’s
apartment. Alves also observed a third person inside the Tahoe. Alves got the Tahoe’s
license plate number and it matched the license plate number of Leal’s stolen Tahoe.
The fifth robbery occurred in the parking lot of the Mezzanine Lounge about fifteen
minutes after the Whataburger robbery. The Mezzanine Lounge is located a few minutes’
drive away from the Whataburger near the intersection of Greenbriar and the Southwest
Freeway. Emily Bynum had just gotten off work from her job as a bartender at the
Mezzanine Lounge and she and a co-worker were walking toward their cars when the
co-worker said in a panicked voice for Bynum to get in her car. Bynum ran to her car, got
in, and locked the doors using her key remote. Almost immediately someone wearing a
black bandana across the top of his nose and a dark sweater was at her window holding a
5
The female in the Explorer drove away before police arrived at the scene.
4
shiny gun to her face and angrily demanding that she open her door and get out. Bynum
refused and instead tried to start her vehicle, but the engine had been killed when she
locked the doors and set the alarm. The would-be robber became more and more angry
and he banged his hands on the door and window of her vehicle, which set off the alarm.
After a short while, he walked away and got back into his vehicle, a black SUV.
Scott Lanquist testified during appellant’s trial. Lanquist was waiting inside his
own vehicle for his girlfriend to get off from work at the Mezzanine Lounge in the early
morning hours of April 27, 2008. Lanquist saw two females exit the club and walk toward
their vehicles when he saw a black Tahoe quickly drive into the parking lot and stop in
front of the girls’ vehicles. Lanquist saw the driver get out of the Tahoe and approach one
of the blocked cars and start what he thought was an argument. Lanquist saw the man
bang on the female’s car, setting off the alarm. He then saw the driver get back in the
Tahoe and it quickly drove away. Lanquist saw two other people inside the Tahoe, one in
the front passenger seat and the second sitting in the middle of the back seat leaning
forward in between the two front seats.
The day after the attempted robbery, Officer James McIntosh processed Bynum’s
car for fingerprints. McIntosh recovered two partial fingerprints from the driver’s side
window. Fingerprint expert John Lazzaretto testified that one of the fingerprints
recovered by McIntosh matched appellant’s left middle finger. Bynum later identified
appellant in a police photospread and again during trial as the person who attempted to rob
her in the Mezzanine Lounge parking lot.
The sixth robbery occurred in the parking lot of the Walmart located at 10750
Westview just before five in the morning on April 27, 2008. Stephen Pak was driving out
of the parking lot when a black SUV drove up and stopped in front of his car, blocking him
from driving forward. Pak testified that a single Hispanic man wearing a black hood got
out of the passenger side of the SUV and approached him carrying a pistol. The man
demanded Pak give him his money. Pak described the pistol as silver with a darker color.
5
According to Pak, the man did not have anything covering his face. After Pak gave him
his wallet, the man went back to the SUV and it drove away. Pak was able to get the
SUV’s license plate number and it matched the license plate of Leal’s stolen Tahoe.
During the police investigation, Pak was unable to positively identify anyone as the
man who robbed him when shown a police photospread. Pak told the investigators that
the person in one of the photos had features similar to the person who robbed him. The
photo pointed out by Pak was a photo of Giovanni Alecio. During appellant’s trial, Pak
denied that he told the police the person he picked out in the photospread was the person
who robbed him. In addition, during appellant’s trial, Pak testified that State’s Exhibit 22,
a photograph of appellant, resembled the person who robbed him. Appellant recalled Pak
to testify during his case-in-chief. During this testimony, Pak testified that he would be
able to identify the person who robbed him if he saw him again and he then positively
identified appellant as that person.
The seventh robbery took place a few minutes later in the drive-through lane of the
McDonald’s restaurant located at the intersection of Wilcrest and Interstate 10. Margaret
Mallia was in the drive-through lane buying a cup of coffee when a black Tahoe crashed
into her car. At that point, a single Hispanic male wearing a black sweatshirt without a
hood came up to her car window and demanded her money at gunpoint. Mallia testified
the gun was silver. Mallia also testified the man was not wearing a bandana on his face.
After getting her purse, the man returned to the Tahoe and it drove off. Mallia got the
license plate number of the Tahoe and turned it over to the police.
In July of 2008, Officer Stewart Hood was on patrol when he located Leal’s stolen
Tahoe illegally parked and blocking a lane of traffic. Hood found the Tahoe parked
halfway out of an apartment complex gate in the 2700 block of Dunvale, near Westheimer.
According to Hood, there was no one inside the Tahoe. The Tahoe was towed to the
Houston Police Department’s vehicle examination building, where Officer D.C.
Lambright, a crime scene investigator, processed it for evidence. Lambright found a
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credit card belonging to Matt Nelson inside the Tahoe. Lambright also located
fingerprints on both the interior and exterior of the Tahoe. Lambright sent these
fingerprints to be analyzed. Fingerprint analysts determined that some of the fingerprints
matched those of Giovanni Alecio.
Police investigators subsequently located and interviewed Alecio. According to
detective Arnold, as the investigation progressed, the police became satisfied that Alecio
was not one of the participants in the seven robberies or the complainant’s murder. In
addition, Alecio told the police that he knew two individuals, Jose Luis Cardenas and
appellant, who were involved in the crime spree. Fingerprint analysis revealed that some
of the fingerprints found on Leal’s Tahoe matched Cardenas’s fingerprints.
On July 24, 2008, the police went to appellant’s apartment and asked to speak with
him. The police also asked if appellant would consent to a search of his apartment.
Appellant consented to the search. During the resulting search, the police discovered a
New Ithaca sawed-off, double-barrel 12-gauge shotgun. The police took appellant into
custody at that time.
On July 25, 2008, investigators Arnold and McGalin interviewed appellant. At the
time of the interviews, appellant was a suspect in the murder but he had not yet been
charged. The questioning resulted in two videotaped interviews. In both interviews, the
police read appellant his rights. Appellant waived his rights and agreed to speak with the
police. The two videotapes, as well as a transcript of both, were admitted into evidence
without objection by appellant.
In the first interview, appellant told the investigating officers that his friend Luis
Cardenas picked him up in a black Tahoe. Appellant also told the officers that there was
another Hispanic male in the Tahoe, a friend of Cardenas’s that he did not recognize.
According to appellant, Cardenas was sitting in the front passenger seat, the stranger was
driving, and he rode in the back seat on the passenger side occasionally moving into the
middle. According to appellant, after picking him up, they drove toward the Beltway with
7
the driver explaining that they were going to “jump out on some guys” to come up with
some quick cash. Appellant admitted he knew they were going to commit robberies.
Appellant admitted the driver had a chrome-colored handgun. In addition, appellant
admitted he was present in the Tahoe during three criminal episodes that occurred that
morning: the first occurring on the feeder road of the Beltway; the second at the Walmart
parking lot close to the Beltway; and the third, the attempted robbery and murder of the
complainant. Appellant told the police it was the driver who committed each of the
crimes, including the shooting of the complainant. Appellant admitted he was wearing a
dark blue hoodie that evening, but denied that he wore a bandana or gloves. Appellant did
admit to the officers that he knew what he was getting involved in, he knew the Tahoe did
not belong to Cardenas or the driver, and that he had put himself in the situation.
Appellant told the police that once the complainant was shot, he told Cardenas and the
driver to drop him off at a friend’s nearby apartment. Appellant denied he was present at
the other robberies that the police believed were connected to the complainant’s murder.
The first interview ended at 10:30 a.m., approximately a half hour after it started.
About an hour after the first interview ended, appellant told the investigators he
wanted to speak with them again. During the ensuing second interview, appellant
admitted that he was present at the Walmart, McDonald’s, and Whataburger robberies.
Appellant also told the police he got out of the Tahoe during the Whataburger robbery
while the driver threw stuff into the Tahoe. Appellant told the police he did not recall any
other robberies that night, denied he ever possessed a weapon that night, and told the police
there was only a single gun used during all of the crimes.
Appellant also admitted during the second interview to being present when the
complainant was murdered. Appellant then described the murder for the police
investigators. Appellant claimed they turned off of Interstate 10, drove north on Gessner
and turned west at an intersection. While driving down that street between two apartment
complexes, the driver turned off the Tahoe’s lights, pulled up in front of two men walking
8
along the street, put the Tahoe in park, and the driver got out of the Tahoe. The driver then
went around the Tahoe and approached one of the men. According to appellant, the man
walked away, the driver approached him again, and that was when he heard a gunshot.
After the murder, appellant told the police he was not dropped off at a friend’s apartment;
instead they drove back to his apartment complex where they parked the Tahoe.
According to appellant, he and Cardenas went into his apartment but appellant refused to
allow the driver into his apartment. Appellant then went to sleep. After waking up the
next day, appellant told Cardenas to take the Tahoe and get rid of it because he did not want
anything to do with it.
At the close of the evidence, the case was submitted to the jury by the trial court.
The court’s charge authorized the jury to convict appellant of capital murder if it found
beyond a reasonable doubt that he was responsible for the complainant’s death either
individually, as a party, or as a co-conspirator with Cardenas and/or another person or
persons. The jury found appellant guilty of capital murder. The trial court then imposed
the automatic punishment of confinement for life without the possibility of parole. This
appeal followed.
DISCUSSION
Appellant raises two issues on appeal. In his first issue, appellant contends the trial
court erred when it admitted into evidence “[t]estimony and exhibits of extraneous crimes,
conduct, wrongs, bad acts, specifically seven other aggravated robberies that occurred
before the murder in question.” In his second issue, appellant contends the evidence is
insufficient to support his conviction for capital murder. We address his second issue
first.
I. Sufficiency of the Evidence
Appellant contends the evidence is insufficient for four reasons. First, appellant
asserts the evidence is insufficient because the only eyewitness who testified during his
9
trial was unable to identify him as the person who shot and killed the complainant.
Second, appellant argues the evidence is insufficient because Alecio and Cardenas did not
testify and provide direct evidence implicating him in the murder of the complainant.
Third, appellant asserts there is no evidence that he acted as a party, a co-conspirator, or
was the driver/gunman during the crime spree that ended with the complainant’s murder.
Finally, appellant argues there is no physical evidence connecting him to the murder scene
or the stolen black Tahoe. Appellant contends that, at most, the evidence established that
he was a “mere backseat passenger in the vehicle in question and that he did not have any
knowledge that the driver of the vehicle was going to shoot the murder victim, nor ever
anticipated same.”
A. The Standard of Review and Applicable Law
In a sufficiency review, we view all of the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality opinion);
Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Our review includes both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). Direct and circumstantial evidence are treated equally. Id. The
jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all
or part of a witness’s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App.
1998). The jury may reasonably infer facts from the evidence presented, credit the
witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and
weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986). Reconciliation of conflicts in the evidence is within the jury’s discretion, and such
conflicts alone will not call for reversal if there is enough credible evidence to support a
conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). An appellate
10
court may not re-evaluate the weight and credibility of the evidence produced at trial and in
so doing substitute its judgment for that of the fact finder. King v. State, 29 S.W.3d 556,
562 (Tex. Crim. App. 2000). Inconsistencies in the evidence are resolved in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
A jury may infer knowledge or intent from the acts, conduct, and remarks of the
accused, and from the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806,
810 (Tex. Crim. App. 1991). Direct evidence of the elements of the offense is not
required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Juries are
permitted to make multiple reasonable inferences from the evidence presented at trial, and
circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor. Id. at 14–16. Circumstantial evidence alone can be sufficient to establish guilt.
Id. at 15.
A person commits the offense of capital murder if he intentionally commits murder
in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. '
19.03(a)(2). A person commits murder if he intentionally or knowingly causes the death
of an individual. Tex. Penal Code Ann. ' 19.02(b)(1) (West 2011). A person commits a
robbery if, in the course of committing theft, and with the intent to obtain or maintain
control of the property, he intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. Tex. Penal Code Ann. ' 29.02(a)(2) (West 2011).
Under the law of parties, a “person is criminally responsible as a party to an offense
if the offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a) (West 2011). A
person is “criminally responsible” for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. at
§ 7.02(a)(2).
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A person is also “criminally responsible” for an offense committed by the conduct
of another when “in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators … if the offense was committed in
furtherance of the unlawful purpose and was one that should have been anticipated as a
result of carrying out the conspiracy.” Id. at § 7.02(b). A defendant in a capital murder
case may be convicted solely on a conspiracy theory of culpability contained in the jury
charge. Love v. State, 199 S.W.3d 447, 452 (Tex. App.CHouston [1st Dist.] 2006, pet.
ref=d) (citing Fuller v. State, 827 S.W.2d 919, 932B33 (Tex. Crim. App. 1992)).
Therefore, the State is not required to present evidence of a criminal defendant’s intent to
kill as long as the evidence establishes that a felony was committed as a result of a
conspiracy and the murder should have been anticipated in carrying out the conspiracy to
commit the underlying felony. Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App.
[Panel Op.] 1979).
A reviewing court may look to events before, during, and after the commission of
the offense to determine whether an individual is a party to the commission of the offense.
Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Circumstantial
evidence may be sufficient to show that one is a party to an offense. Id. Mere presence
alone will not make one a party to an offense; nevertheless it is a circumstance tending to
prove that a person is a party to the offense and when taken with other facts may be
sufficient to show that he was a participant. Wygal v. State, 555 S.W.2d 465, 469 n.3
(Tex. Crim. App. 1977).
B. Analysis
We turn first to appellant’s contentions that the evidence is insufficient because the
one eyewitness who testified during his trial was unable to identify him as the shooter and
because Alecio and Cardenas did not provide direct evidence connecting him to the
complainant’s murder. Because direct evidence of the elements of the charged offense is
not required, appellant’s initial contentions are without merit. Hooper, 214 S.W.3d at 14.
12
Appellant also asserts the evidence is insufficient because there was no physical
evidence connecting him to the crime scene or the black Tahoe. Because appellant’s own
statements place him inside the black Tahoe and at the crime scene when the complainant
was shot, we reject his contention that the lack of physical evidence renders the evidence
insufficient.
Finally, appellant argues that the evidence is insufficient to support his capital
murder conviction because, in his view, the only thing the evidence established was that he
was a “mere backseat passenger in the vehicle in question and that he did not have any
knowledge that the driver of the vehicle was going to shoot the murder victim, nor ever
anticipated same.” We disagree.
The jury was instructed that it could find appellant guilty of capital murder in any of
three different ways: (1) as a principal; (2) as a party under section 7.02(a)(2) of the Texas
Penal Code; and (3) as a co-conspirator under section 7.02(b) of the Texas Penal Code.
The jury returned a general verdict; therefore, if the evidence is sufficient to support a
guilty finding under any of the allegations submitted, we must uphold the jury’s guilty
verdict. Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005).
The evidence against appellant includes his two videotaped statements. In those
statements appellant admitted he was picked up in a black Tahoe by two men he knew did
not own the vehicle. Appellant also admitted during his statements that he knew they
were going to commit robberies that night and that one of his companions was armed with
a chrome-colored handgun. In addition, appellant admitted that he was present during
several of the seven criminal incidents leading up to the shooting of the complainant.
While denying any direct involvement in any of the robberies or the attempted robbery of
Bynum, appellant admitted he got out of the Tahoe during the Whataburger robbery while
one of his companions threw “stuff” into the back of the Tahoe.
13
The evidence also included the testimony of three eyewitnesses who identified
appellant as the primary gunman in three out of the seven robberies. 6 In addition,
appellant’s fingerprints were found on Bynum’s car. A sawed-off shotgun was found in
appellant’s apartment and was admitted into evidence during appellant’s trial. Brian
Alves testified it resembled the firearm brandished by the second robber to get out of the
Tahoe during the Whataburger robbery.
Viewing the evidence summarized above in the light most favorable to the verdict,
we conclude the evidence is sufficient to establish appellant’s guilt as either a party under
section 7.02(a)(2) of the Texas Penal Code or as a co-conspirator under section 7.02(b) of
the Texas Penal Code. We overrule appellant’s second issue on appeal.
II. Admission of Evidence
In his first issue, appellant complains the trial court erred when it admitted into
evidence during appellant’s trial, testimony and exhibits related to the seven robberies the
police believed were connected to the complainant’s murder. The State asserts appellant
failed to preserve this issue for appellate review because he failed to lodge
contemporaneous objections. We agree.
If a party does not want an extraneous offense admitted at trial, he must object when
the evidence is presented in order to preserve his complaint for appellate review.
McMillan v. State, 940 S.W.2d 767, 769 (Tex. App.—Houston [14th Dist.] 1997, pet.
ref’d) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). The
objection must be timely, proper, and specific. Moff v. State, 131 S.W.3d 485, 489 (Tex.
Crim. App. 2004). In addition, the party must object every time the objectionable
evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
Because appellant failed to object to the admission of any of the evidence related to the
seven robberies, we hold he has not preserved this issue for appellate review. Harris v.
6
The three robberies were the Walmart robbery, the attempted robbery of Bynum in the Mezzanine
Lounge parking lot, and the Valero robbery.
14
State, 204 S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Tex. R.
App. P. 33.1(a)).
Even if appellant had preserved this issue for appellate review, the result would be
the same as evidence of the seven robberies was admissible to connect appellant to the
complainant’s murder. While evidence of extraneous offenses is normally not admissible
at the guilt phase of a trial to prove that a defendant committed the charged offense in
conformity with a bad character, extraneous offense evidence may be admissible when it
has relevance apart from character conformity. Tex. R. Evid. 404(b); Devoe v. State, 354
S.W.3d 457, 469 (Tex. Crim. App. 2011). Extraneous offense evidence may be
admissible to show proof of motive, opportunity, intent, preparation, knowledge or
identity. Devoe, 354 S.W.3d at 469. Whether extraneous offense evidence has relevance
apart from character conformity is a question for the trial court. Id. Thus, a trial court’s
ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion
standard. Id. As long as the trial court’s ruling is within the zone of reasonable
disagreement, there is no abuse of discretion and the trial court’s ruling will be upheld on
appeal. Id. A trial court’s Rule 404(b) ruling is generally within this zone if there is
evidence supporting a determination that an extraneous transaction is relevant to a
material, non-propensity issue. Id.
Here, the identity of the perpetrator of the complainant’s murder was a contested
issue. Appellant’s defensive theory was that he was merely a backseat passenger in the
Tahoe when the complainant was murdered. The State’s case against appellant was based
on circumstantial evidence. As a result, the State needed the evidence of the extraneous
offenses to connect appellant to the complainant’s murder. We hold the trial court did not
abuse its discretion when it determined that evidence of the seven robbery crime spree was
admissible. See id. at 470 (holding, in a capital murder case, evidence of other crimes
committed during a crime spree was admissible to establish the identity of the perpetrator).
We overrule appellant’s first issue on appeal.
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CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s judgment.
/s/ Leslie Brock Yates
Senior Justice
Panel consists of Justice Seymore, Boyce, and Senior Justice Yates.7
Do Not Publish — TEX. R. APP. P. 47.2(b).
7
Senior Justice Leslie Brock Yates sitting by assignment.
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