Prince, Glenn Thomas v. State

Affirmed and Majority and Concurring Opinions filed January 19, 2006

Affirmed and Majority and Concurring Opinions filed January 19, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-03-01298-CR

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GLENN THOMAS PRINCE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 892174

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C O N C U R R I N G   O P I N I O N

The court correctly determines that the trial court did not abuse its discretion by admitting evidence of the two 1992 aggravated-robbery offenses, but the majority does not inquire as to whether appellant put his intent in issue and employs a similarity analysis more appropriate to the identity issue. Nonetheless, the court properly affirms the trial court=s judgment.

Although relevant, Aevidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.@  Tex. R. Evid. 404(b).  However, extraneous offenses may be admissible to show Amotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.@  Id.; Montgomery v. State, 810 S.W.2d 372, 387B88 (Tex. Crim. App. 1991) (op. on reh=g).  Extraneous-offense evidence is also admissible to rebut defensive theories raised by the State=s witnesses during cross‑examination. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994).  But merely introducing evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, by itself, make that evidence admissible.  Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996).  The extraneous-offense evidence also must be relevant to a Afact of consequence@ in the case.  Id. AExtraneous offense evidence may be relevant to more than one issue.@ Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996).  The disputed evidence in this caseCan aggravated robbery and attempted aggravated robbery committed nearly ten years after the charged offenseCwas offered for several purposes and admitted for virtually all purposes identified in Rule 404(b).

The State offered the 1992 aggravated robbery offenses as admissible to prove motive, identity, intent, and Alack of mistake on part of the officers,@ and to rebut the defensive theory that the charged capital murder was a party offense.  Appellant objected to the admission of this extraneous-offense evidence under Texas Rules of Evidence 403 and 404.  The trial court initially found the 1992 aggravated robberies were relevant for some of the purposes listed in the second sentence of Rule 404(b), i.e. that they tended to show motive, intent, opportunity, and lack of mistake, and that the probative value of this extraneous-offense evidence outweighed its prejudicial effect.  After making these rulings, the trial court granted appellant a running objection to the evidence on extraneous offenses and then instructed the jury that they could consider the evidence for virtually all of the purposes mentioned in Rule 404(b):^[1]

The Court:  All right. Ladies and gentlemen, I want to give you an instruction now regarding evidence that you will soon hear.  You are instructed if there is any evidence before you in this case regarding the defendant=s committing an alleged offense or offenses other than the offense charged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.

A juror:  Would you rephrase that in a short sentence?

The Court:  You will have that in the charge.  Basically, if you hear evidence of another crime or wrong that is alleged to have been committed by the defendant, you may not consider that for any purpose other than determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with this offense.  And you may only consider it if you believe the other crime or wrong beyond a reasonable doubt.  You will [sic] given this in the charge that you have to take back with you. ^[2]

When, as in this case, a limiting instruction is requested,^[3] the trial court Ashould instruct the jury that the evidence is limited to whatever specific purpose the proponent advocated.@ Taylor v. State, 920 S.W.2d 319, 323 (Tex. (Tex. Crim. App. 1996).  The above instruction did not limit the jury=s consideration to the specific purposes advocated by the StateCmotive, identity, intent, and lack of mistake on part of the officers, and to rebut the defensive theory that the charged capital murder was a party offense.  Nor did the instruction limit the jury=s consideration to the purposes the trial court mentionedCmotive, intent, opportunity, and lack of mistake.  Instead, the trial court instructed the jury that they could consider the extraneous offenses in determining not only motive, opportunity, intent, identity, and lack of mistake, but also preparation, plan, knowledge, and accident, if any.^[4]  The trial court erred to the extent it instructed the jury that it could consider the extraneous offenses for purposes that were neither advocated by the proponent of the evidence nor relevant to any issue raised.

The only purpose the majority opinion addresses is intent; however, the majority=s analysis, which focuses on the mode of committing the offenses and the circumstances surrounding the charged offense, pertains more to identity.

Evidence of an extraneous offense may be admissible to show identity when identity is an issue in the case.  Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). However, for the extraneous offenses to be admissible to show identity, there must be a showing that the extraneous offense committed by the accused was so nearly identical in method to the charged offense as to earmark it as the Ahandiwork of the accused.@  Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993).  The characteristics must be so unusual and distinctive as to be like a signature.  Taylor, 920 S.W.2d at 322 (holding that when an extraneous offense is offered to prove identity, the common characteristics must be so unusual and/or distinctive as to be like a Asignature@); Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993); Avila v. State, 18 S.W.3d 736, 740 (Tex. App.CSan Antonio 2000, no pet.) (holding that, although the two offenses shared general similarities, they were not substantial enough to warrant the admissibility of the extraneous conduct testimony).  In determining similarity of the offenses for the purpose of establishing identity, the court must take into account both the specific characteristics of the various offenses and the time interval between them.  Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002).

In this case, the majority concludes that the indicted and extraneous offenses were alike in several ways and notes the following similarities:

$ all three offenses were committed with a blunt instrument or a knife;

$ all three offenses were committed at convenience stores;

$ all three offenses were committed in Harris County;

$ all three offenses were committed by an individual acting alone;

$ in two of the incidents, bills but not coins were taken;

$ in all three offenses, nothing was stolen from the store clerk; and

$ in all three offenses the perpetrator drove away very quickly. 

Though it is true that comparisons can be drawn and similarities identified, the similarities noted by the majority are not the type of similarities Texas jurisprudence recognizes as a Adefendant=s handiwork@ because they are not at all distinctive.  All of the conduct in question occurred at Houston-area convenience stores, but there is nothing in this case that would serve as the Asignature@ of the perpetrator and thereby affirmatively link the charged offense (the 1982 capital murder) to the extraneous offenses (the 1992 aggravated robbery and attempted aggravated robbery) for identity purposes.  The 1992 extraneous offenses are simply garden-variety convenience-store robberiesCnot Asignature@ crimes.

The probity of evidence of other crimes, when introduced for purposes of identity, depends upon both the uniqueness of the modus operandi and the degree of similarity between the charged offense and the extraneous offenses.  Here, the modus operandi was not unique or distinctive.  The similarities cited by the majority are common components of armed robberiesCan individual acting alone, with a knife or blunt object, who leaves very quickly after taking or attempting to take bills from a cash register.  Whether considered alone or in combination, these characteristics lack the distinction necessary to trigger the identity exception in Rule 404(b).

Moreover, there is a dramatic and pronounced dissimilarity between the charged offense (1982 capital murder) and the extraneous offenses (1992 aggravated robberies) in that the former was a horribly violent, bloody crime that ended in the brutal stabbing and stomping death of the store clerk, while the latter offensesCcommitted nearly a decade laterCinvolved only robbery or attempted robbery,  no injuries in either, and property loss in only one.  The perpetrator in the charged offense was an extremely violent person as was shown by the multiple knife wounds and evidence that the perpetrator stomped on the victim=s chest during the attack, rupturing the victim=s heart.  The perpetrators in the two extraneous offenses were scared off by threats from one clerk and a call to the police from the other, without causing any injury in either case.  This significant dissimilarity alone undermines the force of any inference of identity that might have flowed from the common, non-distinctive characteristics of the three offenses.

The times of day of all three offenses are also dissimilar.  Neither the same type of weapon nor the same get-away vehicle was used in all three offenses.  There is also the significant distinctive difference in the lapse of time between the two offenses in December 1992 and the March 1982 offense charged in the indictment.  The extraneous offenses and the charged offense were separated by almost ten years.  See Johnson, 68 S.W.3d at 651 (stating that sufficient similarity may be shown by proximity in time or by common mode of committing the offenses). By any relevant measure, there is nothing so distinctive or specific about these three offenses that would establish that they were all committed by the same person.  This point is illustrated by the Court of Criminal Appeals= analysis in Ford v. State, a case in which our high court found that the two robbery offenses at issueCwith stronger Aidentity facts@ than are present hereCwere not sufficiently similar to warrant admission into evidence of the extraneous offense.  484 S.W.2d 727, 730 (Tex. Crim. App. 1972).  In Ford, the perpetrator of each robbery was a tall black man who wore a purple shirt and used a small pistol.  Id.  The robberies however, were separated by almost two months in time, and the first robbery was committed by four men, whereas the second was committed by only one who entered on the pretext of seeking work.  Id. (emphasis added).  The Court of Criminal Appeals observed, Athere will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other.@  Id. at 730.  AWhat must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.@  Id.; see also Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (finding the two offenses at issue to be sufficiently similar because (1) the offenses both occurred at night, in the same area, within a period of one month; (2) the perpetrator was alone, carried a small gun, and tied up the victims in a similar manner; (3) in both cases a robbery preceded the rape, and all coins but pennies were stolen from the victims); Clarke v. State, 785 S.W.2d 860, 867 (Tex. App.CFort Worth 1990), aff=d, 811 S.W.2d 99 (Tex. Crim. App. 1991) (finding that evidence of an extraneous sexual assault was sufficiently similar to the offense charged where: (1) in both offenses the victims were attacked at home during the night; (2) the assailant used duct tape to blindfold both victims and bind their hands and feet; (3) the perpetrator either washed the victim=s vagina after the attack or made the victim wash her vagina before he left; and (4) the perpetrator also used a knife in the attack and asked each victim whether she had a gun in the house).

In this case, the similarities are not substantial enough to warrant the admission of the extraneous offenses on this issue of identity.  Rather, the similarities are more in the nature of the similarities common to the type of crime itself.  Compare Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) (holding that extraneous offense evidence was not relevant to prove either identity or absence of mistake and was inadmissible to show that the defendant, Aa chronic child abuser,@ acted in conformity with his character on the occasion at issue) and Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992) (holding that extraneous offense was inadmissible because the similarities between the charged offense and extraneous offense were not so unusual or particularized as to signal conclusively that they were the handiwork of the same person), with Martin v. State, 173 S.W.3d. 463, 467B68 (Tex. Crim. App. 2005) (holding that evidence of extraneous sexual assault was admissible for purposes of identity in prosecution for sex offense where defendant admitted that he falsely claimed to be a law enforcement officer as a Aruse@ to pick up both the victim and the extraneous offense witness; the facts showed distinctive similarities to qualify as an exception to the general rule precluding extraneous offense evidence).^[5]

There is nothing so distinctive or specific about these three offenses that would tend to show that they were all committed by the same person.  This point is perhaps best illustrated by the following side-by-side comparison of the characteristics of the three incidents in question:

Date	Weapon	Name and Location of Convenience Store	Time of Day Offense Occurred	Actions of Perpetrator Before Offense	Injury or Death, if any, to Complaining Witness/Victim	Items Stolen
12/15/92	Knife	UniGrocery - East Houston	Morning	Perpetrator came in the store and asked for Marlboro cigarettes, left and returned a short time later and asked, ADo you have a restroom?@  When clerk indicated there was no public restroom, perpetrator walked out the door and returned with a knife.	No injury; perpetrator ran out the door when complainant said, AWhere is my gun?@  AWhere is my ... stick?@	Nothing stolen.
12/16/92	Crowbar	Stop >n Go - Southeast Houston	Night	Perpetrator came in the store and asked to use the restroom and then asked if Athat older man@ [an Asian male] was working. When clerk indicated the man was not working, perpetrator left and returned later.  On the second visit, he asked about cigarettes.  Perpetrator raised crowbar in a threatening manner.	No injury; when clerk called police, perpetrator opened cash register, grabbed bills and left store.	Cash (bills), but not coins.
03/12/82	Knife	U-Tote-M - Pasadena	Late Night	Not known.	Violent , bloody murder; complainant suffered 7 stab wounds to the abdomen, 2 stab wounds to the chest, and traumatic rupture of the heart, as well as multiple cutting wounds of the neck and upper extremities.	Disputed. No bills remained in the cash register, only coins.

Because the offenses are not sufficiently similar to constitute Asignature@ offenses, the trial court erred to the extent it admitted the offenses for purposes of establishing identity.

The similarity requirement necessary for admissibility based on identity, however, is diminished when the stated basis for admissibility is intent.  See Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App. 1985). There was a scarce amount of other evidence offered for the jury to determine that this murder occurred in the course of the commission of an aggravated robbery or attempted aggravated robbery.  The State=s witnesses could only say that there was a difference between the amount of money that should have been in the cash register and the amount that was there. On cross-examination the State=s witness acknowledged that the difference could have been the result of misbalancing as opposed to a robbery.  None of the fingerprints on the cash register were identified as belonging to appellant.  There was an amount of money in the murdered store clerk=s pants pocket that would have been near the amount the State=s witness said should have been in the register. The store clerk had money in his billfold, which appellant argues is circumstantial evidence that there was some reason that the store clerk was carrying loose money in his pocket.  There was no blood evidence around the cash register and no money or valuables appeared to have been taken from the store clerk. 

Appellant sums up his argument that the trial court erred in allowing this prejudicial evidence in this way:

AThe only evidence of a robbery would be the natural presumption that it must have been for the purpose of a robbery.  That might be a natural presumption, but it is not a legal presumption.  The State realized this lack of evidence and that is why they wished to offer the extraneous offenses . . . Evidence of the extraneous robberies of 1992, was therefore necessary for the jury to convict of capital murder in this case.@

Appellant argues that by allowing the jury to infer the intent to rob in the capital murder case before them, from the evidence that he had an intent to rob in the 1992 offenses is in essence allowing the jury Ato determine that he has an intent to rob generally. . . [t]hat his character is one for which they could infer that he generally has an intent to rob, and therefore the instant case must be one of >character conformity= for that particular character trait.@

Evidence of a person=s bad character is generally not admissible for the purpose of showing that he acted in conformity therewith.  Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002).  This evidence, however, may be admissible when it is relevant to a non-character conformity issue of consequence in the case such as establishing intent or rebutting a defensive theory.  Id. Because trial courts are in the best position to decide these admissibility questions, an appellate court must review a trial court=s admissibility decision under an abuse-of-discretion standard.  Id. This standard requires an appellate court to uphold a trial court=s admissibility decision when that decision is within the zone of reasonable disagreement.  Id.  

Under the indictment, to convict appellant of capital murder, the State had to prove that appellant intentionally murdered the complainant in the course of committing or attempting to commit robbery.  See Tex. Pen. Code Ann. ' 19.03(a)(2) (West 2004).  A person attempts to commit robbery if, with specific intent to commit robbery, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.  See Tex. Pen. Code Ann. ' 15.01(a) (West 2004).  To determine that appellant intended to commit robbery, the jury had to find that appellant had an intent to unlawfully appropriate property with the intent to deprive the owner of the property as well as an intent to obtain or maintain control of the property.  See Tex. Pen. Code Ann. '' 29.02, 31.03(a) (West 2004).  

Intent can be inferred from acts, words, and conduct of the accused.  Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).  If the State=s direct evidence shows the intent element of the crime and that evidence is uncontradicted by the defendant or not undermined by cross‑examination of the State=s witnesses, the offer of other crimes is unjustified due to the lack of relevancy.  Rankin, 974 S.W.2d at 719.

The majority opinion indicates that, because the indictment required the State to prove beyond a reasonable doubt that appellant killed the complainant with the intent to commit a robbery, appellant=s intent to commit robbery was a fact of consequence. This is contrary to the Court of Criminal Appeals decision in Robbins v. State.  See 88 S.W.3d 256, 260B61 (Tex. Crim. App.  2002) (holding that pleading not guilty to an offense that requires criminal intent is not sufficient, by itself, to put the defendant=s intent in issue, so as to justify admission of prior bad acts or extraneous offenses under Rule 404(b)).  This court should inquire as to whether appellant made his intent to commit robbery a fact of consequence through vigorous cross-examination, presentation of defensive theories, or other means.  See id. at 261.  The record shows that, by cross-examination, appellant suggested that no money or other property may have been taken from the complainant.  If the jury concluded that no property was taken, it still could convict appellant of capital murder; however, it would have to conclude that appellant intentionally murdered the complainant in the course of attempting to commit robbery, rather than in the course of committing robbery. On this record, appellant=s cross-examination sufficiently put in issue his alleged intent to commit robbery.  See id. at 261B63 (holding that defendant put his intent at issue by going beyond his plea of not guilty through vigorous cross-examination of prosecution witnesses suggesting that the victim=s death was caused by some means other than defendant=s conduct, and therefore extraneous-offense evidence was admissible to prove criminal intent).  Accordingly, the trial court did not abuse its discretion in allowing the jury to consider the 1992 offenses as to this issue of consequence. Although the record does not support the other purposes^[6] as to which the trial court allowed the jury to consider this evidence, there is nothing to indicate any harm resulted from the jury=s possible consideration of these offenses for the other purposes mentioned.  Thus, there is no reason to reverse on this basis.  The court correctly concludes that the trial court did not abuse its discretion in overruling appellant=s Rule 403 objection.  Therefore, the court correctly overrules appellant=s first and fourth issues, and affirms the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed January 19, 2006.

Panel consists of Justices Anderson, Hudson, and Frost.  (Anderson, J., majority.)

Publish C Tex. R. App. P. 47.2(b).

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^[1]  See Taylor v. State, 920 S.W.2d 319 (Tex. Crim. App. 1996) (holding that when extraneous-offense evidence is relevant to motive, intent, identity, and rebuttal of defensive theory, trial court may properly include more than one purpose in jury instruction).

^[2]  Emphasis added.

^[3]  The majority opinion states:

At defense counsel=s request, the trial court instructed the jury they could only consider evidence of the extraneous offenses Ain determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose. 

Though defense counsel requested an instruction, he did not request this one; rather, defense counsel specifically asked the trial court to limit the instruction to Awhatever the limited reason@ for admitting the extraneous-offense evidence was.  The trial court told the jury they could consider the 1992 aggravated robberies in determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake of accident of appellant. 

^[4] Appellant challenges the trial court=s decision to allow the jury to consider the extraneous-offense evidence and argues that the jury should not have been allowed  to consider it for any of the purposes listed in Rule 404(b); however, appellant does not argue the trial court=s overly broad instruction resulted in any harm beyond the jury=s consideration of the evidence for purposes of intent.  In criminal cases, however, this court has discretion to review error preserved in the trial court but not argued on appeal.  See Rezac v State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Although defense counsel did not specifically object to the court=s instruction to the jury as including more purposes than the State urged or the trial court mentioned, defense counsel specifically asked the court to Agive an [sic] limiting instruction to the jury prior to them hearing this evidence as to what the limited purpose is.@  When the trial court asked defense counsel what admonition he wanted the jury to receive, defense counsel responded, Ayou=re allowing this in for some reason, whatever that limited reason is . . .  If there is a limited reason, then I ask the jury be instructed what that limited reason is.@  (emphasis added).  The trial court then referred to the instruction in the jury charge and defense counsel stated, AI=m objecting to each and every one of those reasons in there as not being valid reasons for allowing ths character evidence of the defendant in before this jury.@  The trial court overruled the objection.  Defense counsel asked the court for Aa running objection to each and every question that is asked of each and every one of theB these witnesses about these extraneous offenses in front of the jury@ and the trial court granted the defense a running objection to the evidence after rejecting defense counsel=s arguments against admission of the evidence.  This action was sufficient to preserve error.

^[5]  See also Johnson, 68 S.W.3d at 651(holding that extraneous offense evidence was admissible where the offenses were committed within a few hours of each other, directed at lone women, and involving another victim=s red Ford Taurus); Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (holding that the offenses were sufficiently similar because the offenses were committed three days apart and both offenses were robberies with a gun and the defendant had an accomplice with him on both occasions); Davis v. State, __ S.W.3d. __, No. 06-05-00001-CR, 2005 WL 3093388, at *6B7 (Tex. App.CTexarkana, Nov. 21, 2005, no pet. h.) (holding that evidence of extraneous offense was admissible to prove identity based on similar modus operandi in aggravated robbery and aggravated kidnapping prosecution, when all of the offenses occurred at the same time of light, in the same location and the attacker in all offenses wore the same type of clothing); Thomas v. State, 126 S.W.3d 138, 143B44 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding that admission of extraneous offense was admissible to prove identity where victims were both women in their late sixties/early seventies and had been harassed at night for some time over the same period of time, perpetrator entered home by breaking a window, while leaving pornographic pictures outside one of the victims= home); Reyes v. State, 69 S.W.3d 725, 735B36 (Tex. App.CCorpus Christi 2002, pet. ref=d) (holding that trial court did not err in determining that extraneous-offense evidence of a prior incident of burglary and sexual assault allegedly committed by defendant was relevant to show identity); Webb v. State, 36 S.W.3d 164, 180B82 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (holding that the trial court abused its discretion in admitting extraneous offense because such evidence did not have any true relevance apart from the [appellant=s] character or his actions in conformity therewith).

^[6]  Motive is not an essential element of a criminal case and need not be proved to sustain a conviction for commission of the offense.  Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App.1982); Zuliani, 903 S.W.2d 812, 826B27 (Tex. App.CAustin 1995, pet. ref=d). The admissibility of extraneous offense evidence to show motive is usually required to relate or pertain to other acts by the accused against the complainant in the offense for which the accused is presently being tried.  Foy v. State, 593 S.W.2d 707, 708B09 (Tex. Crim. App. 1980).  The issue of motive was not raised in this case, and thus the extraneous offenses were not admissible under this theory. 

Evidence of an extraneous offense to rebut a defense of Alack of opportunity@ or Aimpossibility@ is admissible under Rule 404(b).  See, e.g., Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (stating that extraneous offenses with other children may be admissible when defendant claimed that he lacked any opportunity to commit sexual abuse because many children were always in the same room).  However, the issue of opportunity was not raised in this case nor did the State proffer the extraneous offenses for that stated purpose. It was error to admit the extraneous offenses for this purpose.

A claim that the alleged act was done by accident or mistake is a defensive issue that must be raised.  Using accident or mistake as the basis for the introduction of extraneous offenses may be pointless if the defendant has not claimed accident or mistake.  Prior v. State, 647 S.W.2d 956, 959 (Tex. Crim. App. 1983).  In the instant case, appellant denied the alleged offense by his plea of not guilty, and never raised a claim that the conduct alleged in the indictment was the product of  accident or mistake.  Because neither accident nor mistake was raised, neither could serve as the purpose for admitting the extraneous offenses under Rule 404(b) and it was error to admit them on this basis.

Though extraneous offenses may be admissible under Rule 404(b) to prove plan, preparation, or knowledge, these issues were not raised in this case.  Therefore, they could not serve as a proper purpose for admitting the extraneous offenses.  See Daggett v. State, __ S.W.3d. __ 2005 WL 3408057, at *4B5 (Tex. Crim. App. December 14, 2005).  Courts frequently admit evidence of extraneous acts under this exception notCas intendedCto show acts the defendant took in preparation for the ultimate charged offense, but, rather for the improper purpose of showing  repeated acts that are similar to the charged offense.  Id.  Repetition of the same act or same crime does not equal a Aplan.@ Id.  It equals the repeated commission of the same criminal offense offered obliquely to show bad character and conduct in conformity with that bad character C Aonce a thief, always a thief.@ This bad‑character‑conformity purpose, whether express or not, is precisely what is barred by Rule 404(b).  Id.  Thus, if the proponent is unable to articulate exactly how an extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not admissible to prove part of a Aplan.@ Id.  Plan or preparation was not raised and could not have served as a legitimate purpose for admitting the extraneous offenses in this case.