Cage Chaparro v. State , 2016 Tex. App. LEXIS 12075 ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00153-CR
________________________
CAGE CHAPARRO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2013-437,245; Honorable Jim Bob Darnell Presiding
November 8, 2016
OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following a plea of not guilty, Appellant, Cage Chaparro, was convicted by a jury
of aggravated robbery with an affirmative finding on use of a deadly weapon.1 After
Appellant entered a plea of true to an enhancement paragraph, the trial court assessed
his punishment at fifty years confinement. Initially, this appeal was filed pursuant to
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
1
TEX. PENAL CODE ANN. § 29.03(a) (West 2011). Aggravated robbery is a first degree felony. Id.
at § 29.03(b).
Appellant’s conviction was affirmed. On motion for rehearing, this court was advised
that the appellate record was incomplete, and therefore an independent review of the
entire record could not have been made before determining that the appeal was
frivolous. Specifically, the reporter’s record was missing Appellant’s juvenile
certification hearing.2 Consequently, the motion for rehearing was granted and the
opinion and judgment of March 21, 2016, were withdrawn. Supplementation of the
record was ordered and the parties were permitted to amend their briefs. See Chaparro
v. State, No. 07-14-00153-CR, 2016 Tex. App. LEXIS 5144, at *4 (Tex. App.—Amarillo
May 12, 2016, order) (not designated for publication). With new appointed counsel,
Appellant now presents a meritorious appeal. By a sole issue, he maintains the trial
court abused its discretion in admitting evidence of three extraneous offenses during the
guilt/innocence phase of trial to prove identity even though identifying him as a suspect
was unnecessary based on the State’s ability to convict him as a party to the offense.
We affirm.
BACKGROUND
On October 22, 2012, at approximately 2:00 a.m., Jesse and Christie Peterson
testified they were awakened by a loud noise. Two suspects entered their bedroom and
ordered them to the ground while they stole items from the house. According to the
Petersons, the suspects wore white masks and dark gloves and one of them wore a
distinctive letter jacket. A third suspect stood outside the bedroom and wore an orange
2
Appellant was sixteen years old when he was arrested. Due to his extensive juvenile referrals,
the Lubbock County Juvenile Justice Center conducted an investigation for discretionary waiver of
jurisdiction to have Appellant certified to be tried as an adult for the underlying offense. At the certification
hearing, his juvenile community supervision officer testified that she had supervised Appellant since 2008
for numerous referrals. At the conclusion of the hearing, the trial court determined there was probable
cause to waive juvenile jurisdiction. Appellant does not contest the trial court’s determination in this
appeal.
2
mask.3 One of the suspects used a shotgun and another used a knife to threaten the
Petersons. The third suspect was also armed with a firearm. The Petersons testified
that at least one of the suspects had a Hispanic accent and referred to one of his
cohorts as “Chicon.”4
Between the night of October 21, 2012, and the early morning hours of October
22, 2012, three additional aggravated robberies similar to the Peterson robbery
occurred. Prior to the Peterson robbery, on October 21st, a home invasion occurred at
the residence of Brent Wilson’s grandmother between 10:30 p.m. and midnight. Brent
was living with his grandmother while attending college. He testified he heard a loud
noise and went outside where he encountered two suspects wearing white masks in the
driveway. One suspect holding a large knife approached him and held the knife to his
throat and demanded money. Brent testified he did not have much money on him and
offered the suspects his PlayStation 3 game console instead. Brent noticed a white
vehicle, later identified as a Mitsubishi Galant driven by a co-defendant, pull up to the
curb. He realized it was the get-away vehicle. A passenger exited the vehicle and
spoke with one of the suspects. After retrieving the game console, the suspects fled in
the white vehicle.
In the second robbery, the victim, Christopher Payne, testified that on October
22nd at approximately 12:30 a.m., a white Mitsubishi Galant followed him from an
intersection. As he pulled into his friend’s driveway, the vehicle followed him and two
armed suspects wearing white masks exited from the back seat of the vehicle. One of
3
The masks were Halloween masks.
4
One of the co-defendant’s nickname was “Chingon.” The evidence established that Appellant
commonly referred to a co-defendant by that nickname.
3
the suspects, later identified as Appellant, approached Payne’s window and, while
exhibiting a shotgun, forced him out of his vehicle and onto the ground. When the
suspects did not find anything of value in the vehicle, they stole Payne’s Nike flip flops.
He testified the other suspect was armed with a very long knife. He also believed that
based on their accents, the suspects were Hispanic.
On October 23rd, there was an attempted daytime robbery. Shortly after the
attempt, a white vehicle driven by a co-defendant was stopped. The vehicle matched
the description of the white Mitsubishi Galant present at the previously described
robberies. A search of the vehicle revealed two white masks and two pairs of gloves
matching the description given by the Petersons.
Late at night, on October 27, 2012, a third aggravated robbery occurred at the
residence of Robin Hackett. Ethan Greenlee, a co-defendant, who had done yard work
for Hackett, testified he reached through a doggie door and unlocked the back door.
Hackett testified she heard a scuffle and then a suspect pointed a “rifle” at her. A
second suspect was holding what she thought looked like a machete. She heard voices
coming from the back part of the house and recognized Greenlee’s voice from when he
had worked for her.
The next day, a red Impala was stopped by a police officer for an expired
inspection sticker of more than two years. Appellant was driving the vehicle and did not
have a license or proof of insurance. His older brother Race, who was also in the
vehicle, was arrested on an outstanding warrant. Race advised the officer that there
was marihuana in the vehicle. Appellant and two other occupants were arrested for
possession of marihuana. The vehicle was impounded and searched. Items that had
4
been reported stolen from the Hackett residence were found in the vehicle. Also found
were white masks and gloves similar to the ones described by the Petersons.
Additionally, Appellant was wearing a distinctive letter jacket similar to the one
described by the Petersons.
Upon discovering that the items recovered from the red Impala had been
reported stolen, police officers arrested Appellant and the occupants of his vehicle. A
search warrant was obtained for Appellant’s residence where he resided with his mother
and two older brothers. In addition to the search warrant, Appellant’s mother gave
consent to search the residence. The officers found some of the property belonging to
the Petersons as well as other victims of the similar robberies.
The masks and gloves found were tested for DNA by a forensic scientist. She
testified at trial that Appellant could not be excluded as a contributor on a pair of gloves
found in the driver’s back seat pocket of the Mitsubishi Galant. Appellant was also a
contributor on a right-handed glove left behind at the Hackett robbery and a left-handed
glove found in the front driver’s seat of the red Impala after the Hackett robbery. The
two gloves appeared to be a complete pair. Appellant’s DNA was also found on a white
mask that was taken from the red Impala.
During Appellant’s trial, in exchange for testimonial immunity, Greenlee testified
that Appellant told him he was involved in the Payne robbery as well as the Peterson
robbery. Specifically, Appellant told Greenlee he used a shotgun to tap on Payne’s car
window. Appellant and his co-defendants told Greenlee they were using masks and
gloves to conceal their identity. Greenlee also testified to the details of his involvement
in the Hackett robbery as well as Appellant’s involvement. He recalled Appellant
5
wearing a letter jacket similar to the one described by the Petersons during the
timeframe of the robberies. According to Greenlee, Appellant asked him to pawn
several items stolen from the Petersons because Appellant did not have any
identification usually required when pawning items.
Following presentation of the evidence in the guilt/innocence phase of trial, the
jury found Appellant guilty and the case proceeded to the punishment phase. After a
lengthy presentation of punishment evidence, including testimony from Appellant, the
trial court sentenced him to fifty years confinement.
By his sole issue, Appellant challenges the trial court’s ruling admitting evidence
of the three extraneous robberies during the guilt/innocence phase of trial because
“identity was not a material issue in the case and the potential prejudicial effect of the
extraneous matters was substantial.” We disagree.
APPLICABLE LAW
Rule 404(b) of the Texas Rules of Evidence is a rule of inclusion rather than
exclusion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The rule
excludes extraneous offenses offered solely to show that a defendant acted in
conformity with bad character by committing the charged offense. Id. However,
extraneous offenses are admissible “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim.
App. 2004).
6
Whether extraneous-offense evidence has relevance apart from character
conformity is a question for the trial court. Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011). The trial court first determines whether the evidence is relevant to a
material issue in the case and then whether the evidence should be admitted as an
exception to Rule 404(b). Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993).
Rule 403 of the Texas Rules of Evidence favors admission of relevant evidence
and carries a presumption that relevant evidence will be more probative than prejudicial.
Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010). Although admissible
under Rule 404(b), evidence may still be excluded under Rule 403 if its probative value
is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. Unfair
prejudice refers not to an adverse or detrimental effect of evidence but to an undue
tendency to suggest a decision on an improper basis, commonly an emotional one.
Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). Evidence is unfairly
prejudicial only when it tends to have some adverse effect upon a defendant beyond
tending to prove the fact or issue that justifies its admission into evidence. Id.
Under Rule 403, the trial court balances (1) the inherent probative force of the
proffered evidence along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4) any tendency of
the evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a 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
7
admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
These factors may well blend together in practice. Id. at 642.
The general rule is that 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, one of the main rationales for
admitting extraneous offenses is to prove the identity of the offender. Id. When identity
is a material issue, there is a great need to establish the degree of similarity in the
extraneous matters to prove modus operandi. See Cantrell v. State, 731 S.W.2d 84, 90
(Tex. Crim. App. 1987). See also Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App.
2006).
The theory of relevancy is usually that of modus operandi in which the pattern
and characteristics of the charged crime and the extraneous offenses are so
distinctively similar that they constitute a “signature.” Segundo, 270 S.W.3d at 88.
Common characteristics that may make extraneous offenses similar to the charged
offense “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.
STANDARD OF REVIEW
A trial court’s ruling on the admissibility of extraneous offenses is reviewed for
abuse of discretion. Devoe, 354 S.W.3d at 469. 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. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (on reh’g)). The trial court’s ruling admitting evidence under Rule
8
404(b) is generally within the zone of reasonable disagreement “if there is evidence
supporting that an extraneous transaction is relevant to a material, non-propensity
issue.” Devoe, 354 S.W.3d at 469.
ANALYSIS
Just prior to opening arguments, the trial court conducted a hearing to determine
the admissibility of the three extraneous robberies the State sought to introduce to
establish identity because the suspects had concealed their identities in the Peterson
robbery with masks and gloves. The State argued that because identity was an issue, it
had a substantial need for the extraneous offenses to show a unique common signature
and pattern that would corroborate Appellant’s participation in the Peterson robbery.
The defense objected to admission of any extraneous-offense evidence and
proceeded with the theory that Appellant’s older brother, Race, was the perpetrator.
The defense argued the State would be unable to prove that Appellant committed the
extraneous offenses. The trial court ruled the extraneous offenses would be admissible
and that the jury would be instructed on the use of extraneous offenses. 5 During the
course of the lengthy trial, defense counsel repeatedly objected to the extraneous-
offense evidence citing Rules 401, 402, 403, and 404 of the Texas Rules of Evidence.
In his argument on appeal, Appellant maintains the extraneous-offense evidence
of other robberies was unnecessary for the State to establish his identity because there
5
In the court’s charge, the jury was instructed as follows:
[y]ou are further charged that if there is any evidence before you in this case
tending to show that the defendant herein committed offenses other than the
offense alleged against him in the indictment, you cannot consider said testimony
for any purpose unless you find and believe, beyond a reasonable doubt, that the
defendant committed such other offenses . . . you may then consider the same in
determining the preparation, plan, identity and for no other purpose.
9
was sufficient evidence of his guilt under the law of parties on which the jury was
instructed and because Greenlee’s testimony supported the State’s case. Appellant
concludes the only possible use of extraneous offenses by the State was to prove
character conformity which is prohibited. We disagree.
Identity was contested at trial. Beginning with his opening statement, defense
counsel placed identity at issue by telling the jury there were five suspects in the
Peterson robbery but only three committed the crime and the State was seeking a
conviction on “guilt by association.” Appellant’s defensive theory was that his brother
was the perpetrator in the Peterson robbery and promoted that theory throughout trial.
In closing arguments, defense counsel again implicated Appellant’s brother in the
Peterson robbery. See Sharper v. State, 485 S.W.3d 612, 621 (Tex. App.—Texarkana
2016, no pet.) (making identity an issue by asserting that another person was the
perpetrator).
There was no direct evidence connecting Appellant to the Peterson robbery.
Thus, the State’s case was based on circumstantial evidence, and when identity is a
contested issue, admission of extraneous offenses may be necessary to establish
identity.6 Devoe, 354 S.W.3d at 470-71. Due to the lack of direct evidence, the State
established a need for the extraneous offenses to establish Appellant’s “handiwork” of
committing armed robberies and concealing his identity with masks and gloves. The
State was tasked with establishing that Appellant did in fact commit the extraneous
offenses. This was accomplished through testimony and DNA evidence. Appellant’s
6
Although Greenlee’s testimony placed Appellant at the Peterson robbery, his testimony “should
be viewed with a measure of caution” because of his immunity deal. See Blake v. State, 971 S.W.2d 451,
454 (Tex. Crim. App. 1998).
10
DNA was found in the gloves and one of the white masks worn by him during in the
extraneous robberies. Property stolen from victims of the extraneous robberies was
found in Appellant’s home. Greenlee testified that Appellant asked him to pawn some
of the stolen property. Payne testified that one of the suspects who robbed him was
wearing a distinctive letter jacket—a jacket worn by Appellant and described by the
Petersons.
Appellant’s argument that the State had no need to introduce the extraneous
offenses because the evidence was sufficient under the law of parties to prove his
involvement with the Peterson robbery is without merit. A similar argument was
rejected by the Dallas court of appeals. See Stulce v. State, No. 05-14-01226-CR, 2016
Tex. App. LEXIS 8567, at *7-8 (Tex. App.—Dallas Aug 9, 2016, no pet.) (mem. op., not
designated for publication) (rejecting the appellant’s argument to conduct a sufficiency
review and instead conducting an abuse of discretion review on admission of
extraneous offenses). See also Mason v. State, 720, 728, 740 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d), cert. denied, __ U.S. __, 135 S. Ct. 1181, 191 L. Ed. 2d
139 (2015) (affirming conviction under the law of parties and finding no abuse of
discretion in admission of extraneous offenses because they were highly probative of
the appellant’s identity); Gonzalez v. State, No. 14-11-00188-CR, 2012 Tex. App. LEXIS
4834, at *26, *23-24 (Tex. App.—Houston [14th Dist.] June 19, 2012, pet. ref’d)
(affirming conviction under the law of parties and finding no abuse of discretion in
admission of evidence of a seven-robbery crime spree because identity was a
contested issue).
11
Additionally, admission of the extraneous offenses established a modus operandi
of the robberies including the use of gloves, distinctive Halloween masks, a shotgun,
and a large knife. Other common characteristics that the Peterson robbery shared with
the extraneous robberies included proximity in time and place as well as the letter jacket
worn by Appellant. The robberies all occurred in the span of six days (October 21st
through October 27th), late at night, and the Peterson and Wilson robberies occurred in
the same neighborhood. The Peterson robbery was part of a “signature” shared with
the Wilson, Payne, and Hackett robberies.
In applying Rule 403 of the Texas Rules of Evidence and considering the trial
court’s limiting instruction to the jury on the use of extraneous offenses, we find that
admission of the extraneous robberies was not substantially outweighed by any danger
of unfair prejudice. There is nothing to indicate that the jury reached its verdict at the
guilt/innocence phase of trial based on an improper or emotional basis. We conclude
the trial court did not abuse its discretion in admitting the three extraneous robberies
into evidence. Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Publish.
12