Andre Demar Gipson v. State ( 2009 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00720-CR
Andre Demar Gipson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-07-204275, HONORABLE BOB PERKINS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Andre Demar Gipson guilty of aggravated robbery and
assessed punishment, enhanced by a previous felony conviction, at twenty-five years’ imprisonment.
See Tex. Penal Code Ann. § 29.03 (West Supp. 2009). In a single point of error, appellant contends
that the trial court erred by permitting the State to introduce evidence regarding an extraneous
offense. We overrule this contention and affirm the conviction.
On the morning of July 23, 2007, two men robbed Akhtar Salim, the clerk at the
Rutland Food Store in Austin. One of the men, his face obscured by a scarf, jumped over the counter
and held a black-and-silver pistol to Salim’s head. The second man, whose face was uncovered,
urged the armed man to shoot Salim. At trial, Salim identified appellant as the second man with
what he said was ninety percent certainty: “90 percent I think I can guess it close.” The two men
ordered Salim to open the cash register, and they took what Salim estimated was between $500 and
$600. The men fled when an automobile pulled up in front of the store. Salim did not see whether
they left in this vehicle or by some other means.
The robbery was reported to the police at 9:45 a.m. At 9:55, Travis County sheriff’s
deputy Brian Turner stopped a vehicle near the Rutland Food Store after observing a traffic violation.
Two men were in the car: Donald Hutchinson, who was driving, and appellant, who was the
passenger. Turner noticed the odor of burned marihuana, and he searched the car with Hutchinson’s
consent. The officer found marihuana in the console and a black-and-silver pistol under the front
passenger’s seat. Salim testified that this pistol “looks the same” as the one used in the robbery.
Appellant had $534 in cash in his front pocket. The bills were grouped by denomination, in
sequence from largest to smallest, and all faced the same way. Turner testified that when he asked
appellant where he got the money, appellant said that “people just gave it to me.”
Over appellant’s objection, the court permitted the State to offer evidence regarding
another robbery at the Rutland Food Store on the night of June 21, 2007. The clerk robbed on this
occasion was Kishan Shastry. Shastry testified that there were three robbers. He said that one man
stood by the door while the other two men approached the counter and demanded money. One of
the men at the counter was armed with a pistol and struck Shastry on the head with it. Shastry
identified appellant as the armed man. The robbers fled after Shastry gave them the money.
Margarita Fernandez witnessed the June 21 robbery. Fernandez testified that she first
noticed the three men as she walked up to the store. They were standing at the side of the store, by
a pay phone, and they looked nervous and “suspicious.” The men entered the store while Fernandez
was inside. Fernandez testified that one of the men, armed with a black-and-silver pistol, held a
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store employee at gunpoint while the other men, one armed with a black pistol, robbed the clerk at
the cash registers. Appellant’s palm print was found outside the store on a newspaper rack near the
pay phone.
The rules of evidence prohibit the use of extraneous bad acts to prove the defendant’s
character in order to show conduct in conformity to that character. See Tex. R. Evid. 404(b). But
rule 404(b) permits the use of extraneous misconduct evidence for other purposes, such as showing
identity when identity is an issue. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006).
When an extraneous offense is offered to prove identity by comparing common characteristics, it
must be sufficiently similar to the charged offense that “the offenses illustrate the defendant’s
‘distinctive and idiosyncratic manner of committing criminal acts.’” Id. (quoting Martin v. State,
173 S.W.3d 463, 468 (Tex. Crim. App. 2005)). The common distinguishing characteristic may be
the proximity in time and place or the common mode of commission of the offenses. Ransom
v. State, 503 S.W.2d 810, 812 (Tex. Crim. App. 1974).
Appellant does not question whether his identity as one of the July 23 robbers was
an issue in this case. Appellant contends only that the June 21 robbery was not relevant to the
identity issue because it was not sufficiently similar to the July 23 robbery. We review the trial
court’s ruling admitting the evidence for an abuse of discretion, and we must uphold that ruling so
long as it is within the zone of reasonable disagreement. Page, 213 S.W.3d at 337.
The most obvious common characteristic of the two robberies was that they occurred
at the same location, the Rutland Food Store. In arguing for the admissibility of the extraneous
robbery, the State assured the trial court that it would also prove that appellant had the same
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accomplice and that the same gun was used in both robberies, arguments the State repeats in its brief
to this Court. In fact, although the evidence strongly suggests that Hutchinson was appellant’s
accomplice on July 23, the State cites no evidence, and we find none, identifying Hutchinson as one
of the June 21 robbers. And although Fernandez said that one of the June 21 robbers wielded a
black-and-silver handgun, she was not shown and did not identify the pistol found in Hutchinson’s
car that was likely used in the July 23 robbery.
Nevertheless, we conclude that the trial court did not abuse its discretion by admitting
the challenged evidence. The two robberies were committed at the same store and in the same
manner a month apart, albeit not at the same time of day. In both cases, appellant and an accomplice
entered the Rutland Food Store, went directly to the counter, pointed a pistol at the clerk’s head, and
demanded money. In both cases, a black-and-silver handgun was brandished by one of the robbers.
Although only two robbers entered the store on July 23, rather than three as on June 21, it is possible
that the person who drove up in front of the store just before the robbers fled was the third
accomplice. It was within the zone of reasonable disagreement for the trial court to conclude that
two robberies committed by appellant at the same store, in the same manner, using the same or a
similar handgun, just over one month apart were sufficiently similar to warrant the admission of the
June 21 robbery to prove appellant’s identity as one of the July 23 robbers.
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The point of error is overruled, and the judgment of conviction is affirmed.
___________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: December 1, 2009
Do Not Publish
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