### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00829
- CR

Jeysen Cain, Appellant

v. The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 78306, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury convicted Jeysen Cain of aggravated robbery with a deadly weapon

— a firearm

. See Tex. Penal Code § 29.03 (a)(2)

. The trial court assessed punishment at 28 years’ imprisonment. In his sole appellate issue, Cain contends that the tr ia l court abused its discretion by admitting extraneous

- offense evidence of an earlier aggravated ro bbery that Cain committed. Finding no error in the admission of the evidence, we will affirm.

BACKGROUND The Verizon Robbery

During the evening of December 2 3, 2016, Isidro Yanez was working alone at

a Verizon store in Killeen with no custom ers present. T wo males entered , with their faces concealed

. O ne wore a black hoodie and black athletic pants with white stripes down the side, and the other wore a dark o r black hoodie, dark or black pants , and a red bandanna. Yanez could tell that they both were bla ck teenage males around 5ʹ6ʺ to 5ʹ9ʺ tall.2 The y were armed , and they told Yanez in raised voices, “This is not a game.” They demanded phones and ordered Yan e z to take them to the store’s safe. Yanez took them to the room at the back of the store with the safe . They told him to get down on his knees and turn around , and h e complied

.

Video recordings from store security cameras show one of the robbers aim ing a
gun a t Yanez while he knelt with his back to the robbers. The recordings show the other robber
t aking unopened boxes of cellphones from the safe and putting some into a white bag and others into a black backpack. After the robbers left, Yanez locked th e store’s doors and called for help.

Robert Burton, the store’s m anager, was called to the scene an d provided police with the security

- camera recordings of the robbery. Burton could not identify the robbers from the recordings because they concealed their faces. He also checked inventory and prepared for police a list of what was stolen , including eac h stolen phone’s serial number. The robbers had stolen about 40 phones, 34 of which were iPhone 7 model s .
The T
- Mobile Robbery Twenty days before the Veriz on Robbery , a black male had robbed the employees of a T

- Mobile store

. As in the Verizon Robbery, T

- Mobile employees were the only people in the store around sundown of that day. Employee Sean Lopez went outside the store’s back door to smoke a cigarette a nd saw a black male emerge from n e ar a dumpster , then walk toward the front of the store. Employe e Phillip Jameson, still inside, saw a black male come in through the store’s front door

. Jameson thought him younger than 20 years old and about 5 ʹ 10ʺ tall

. He pointed a gun at Jameson , t elling him that he wanted “all the phones that [they] had.” Jameson3

brought the robber to the back room and unlocked the safe

. T he robber told him to “get on the ground” and took several boxes of cellphones from the safe and put them in a b lack backpack.

The robber went outside through the back door

. Lopez saw him and noticed that he was young, wearing a Nike gray pullover hoodie and dark

- gray Adidas

- type track pants, holding a gun in his right hand, and carrying “a backpack filled with pho nes.” The robber looked at Lopez ; said , “It’s a wrap” ; and ran off , dropping one of the new cellphone boxes out of the backpack. The robber got in a car near the dumpster, which then peeled out and drove off. Lopez picked up t he dropped phone box and went inside to check on Jameson.

The two called police and their manager. Detective Joseph Delongchamps , of the Killeen Police Department (KPD), responded to the scene

. 1 He talked with Jameson and Lopez and took the dropped cell p hone box , still wrapped in plastic

. He sent the box for fingerprint testing, which yielded a latent fingerprint, but he did n o t yet have a suspect for comparison

.

The T

- Mobile manager, Jared Ross , check ed inventory to see what was stolen

. The stolen pho ne s were : eight i Phone 7 models, two iPhone 6S models , and three Samsung GS7 model s. Ross gave police a list of the phones stolen , includ ing their serial numbers

.

Officer s from the KPD’s latent

- fingerprint

- identification unit search ed a fingerprint databa se for any matches for the print recover ed from the dropped cellphone box. There was a potential match with a known fingerprint taken from Cain. Joey Bernier, a fingerprint examiner , compared the recovered latent fingerprint to a known record of Cain’s f in gerprints. Bernier found twice as many favorable points of comparison between the recovered latent fingerprint and the matching fingerprint of Cain’s than w hat is usually required to establish a match , and he opi ned that they were a match.

1 Detective Delongchamps also investigated the Verizon Robbery.4

Investigating t

he Verizon Robbery Leads to Cain Following the robbery at the Verizon store, Ricky Miller, a Verizon employee, searched online for people selling cellphones and found a December 25, 2016 Craigslist ad from someone in the “Killeen / Temple / Ft Hood” area s elling an iPhone 7 still wrapped in its box. The ad included photos of the box, and Miller could see in the photos, reflected on the box’s packaging, “[t]he safe room, the reflection, the lighting poi nt and our Killeen location,” including a particular “c olumn

. ” H e could tell that the photo grapher was standing in the Verizon store’s back room in front of the safe

.

Miller texted the seller at the phone number listed i n the ad. He asked if the iPhone w as still available, and the seller said that it was

. M iller asked for the phone’s serial number to see whether his provider would support that phone , and t he seller sent a photo of the iPhone’s box and serial number. Miller checked the number against the list of stolen Verizon phones , and it match ed

. He a nd the seller arranged to meet at a Walmart in Killeen. Miller reported the conversation to p olice and let them use his phone to keep text ing the seller

.

Detective Delongchamps reviewed the Craigslist ad and discovered that the seller’s phone number belon ge d to Cain’s mother and that Cain was a “registered user ” of the number. He also learned from T

- Mobile personnel that the number was once “attached” to one of the phones stolen in the T

- Mobile Robbery.

Detective Delongchamps , impersonating Miller, texted w ith the seller. He and the seller agreed to meet in the Walmart parking lot. Officers prepared a “buy bust”

— a controlled purchase of the stolen Verizon phone right after which officers would arrest the seller.

For the buy bust, Garrison Hennig, then a KP D officer, attend ed undercover as the buyer. Because weapons were involved in the robberies , SWAT officers w aited nearby as5

support

. The seller arrive d at the Walmart parking lot in a car with two women

. He then met with He nnig , who asked the seller t o show the phone, confirmed the price, and handed over the cash. They parted ways , and Hennig signaled to waiting officers to arrest the seller. Officers moved to apprehend the seller and told him to stop, but t he seller responded, “I didn’t do anything , ” and started running and thr o w ing the cash in the air. After a short chase, officers arrested the seller , who was later identified as Cain.

Officers recovered t he cellphone box that Cain brought to the buy bust

. It bore a serial number match ing one o n t he list of phones stolen in the Verizon Robbery , although it was different from the one that the seller had sent in the text conversation

. Cain also had with him a
T

- Mobile iPhone 7 , which Detective Delongchamps submitted for digi tal forensic extraction.

KP D Detective Keith Drozd performed the extraction. He found text messages and notes on Cain’s p hone. Some of the extracted text messages we re the ones that either Miller

or officers sent to the Craigslist seller to set up the buy bust

. The “Notes” sect io n of the p hone included the text “All these niggas hatin on me cuz iam hittin licks,” and Detective Drozd , based on his experience as a detective, understood “hittin licks” to be slang for committing robberies

. In another text conversation , the person u si ng Cain’s phone was discussing phones with someone, and that person expresse d a suspicion that Cain had stole n the phones. In another, the person using Cain’s phone was discussing how to unlock a phone. And in ano ther, the person using Cain’s phone set u p a meeting to deliver a phone to someone at a Waco flea market and discussed whether the phone was unlocked to work with any carrier.

Detective Drozd also extracted photo s and videos from Cain’s phone

. A photo and a video both showed Cain wearing a bla ck hoodie with a Nike label and black sweatpants with white stripes down the side s . Another video showed Cain h anding a n unopened iPhone box6

to someone . Other photos and videos showed large amounts of money , including a photo of a black bag full of money , a video of Cain counting a large amount of money in $50 and $20 bills,
and other photos of guns and money either shown together or separately

.

Detective Delongchamps reviewed the digital extraction and discovered relevant location information , or the lac k thereof, recorded by the phone. He explained that cellphones constantly record location data but that this could be disabled by either turning off the l ocation feature or turning off the phone entirely. He discovered that Cain’s phone recorded location
i nformation on the day after the T

- Mobile Robbery while at or near the high school that Cain attend ed but recorded no location information on the day of t he robbery

. The phone also recorded location information throughout December, but, from 8:00 p.m. to 8 :30 p.m. on December 23 while the Verizon R obbery was happening, the phone did not record location information

. The last prior re cord of location information was from 7:45 p . m . that day , at or

near Cain’s house

. The phone next recorded location informa ti on around 9:43 p.m., again at or near Cain’s house. Except for this roughly two

- hour dark period, the phone otherwise record ed locati on information that day.

Cain’s mother and sister showed Detective Delongchamps photo s posted to Cain’s Instagram accoun t

. The photo s showed Cain wearing “similar clothing to what he had” on during the Verizon R obbery, including a black hoodie with a white logo on the front and dark athletic pants with white stripes down the sides

. On the Verizon security

- camera recording s, t he robber who took the phone bo xes from the safe and put some of them in the black backpack was the one wearing clothing like Cain’s

.

KPD Detective Brian Goodsby also spoke with Cain’s mother. She let him and other officers search her home, where Cain l ived. O fficers foun d seven boxes of new iPhones,7

all still wrapped in their packaging, some in Cain’s parents’ bedroom and others in their closet , including an empty T

- Mobile cellphone b ox . Detective Goodsby asked Cain’s mother why she had stolen phone s in her closet , and she resp onded that she took them from Cain because she was suspicious about why he had them. The officers also discovered another unopened cellphone box in Cain’s mother’s car

. All t he boxes bore serial numbers matching those of some o f the phones stolen in the Verizon Robbery. They also found $1,940 in $20 bills in Cain’s bedroo m closet

.
Cain’s Trial and Conviction

The State indicted Cain for the Verizon Robbery and tried the case to a jury

. Cain objected to admitting evidence of t h e T

- Mobile Robbery under both Rule of Evidence 404(b) , to prove identity , and Rule of Evidence 403 , because the danger of unfair prejudic e substantially outweighed the evidence’s probative value

. The trial court overruled the objections.

Cain testified i n the defense’s case - in

- chief. He admitted that police recovered cellphone boxes from his house but said that he got the m from a friend at school named “Davion Turner,” now dead , and only later l earned that they were stolen

. He admitted that he made the
C raigslist ad , was the one texting with officers about the ad , and texted others to tell them that phones he was offering for sale were “ going fast

. ” He admitted that:

▪ one of his phone’s videos s how ed him counting money ;

▪ he poste d the video to his Instagr a m account ;

▪ about $1,940 was found in his room ;

▪ he threw the cash at the buy bust , began running away , and said , “I didn’t do anything wrong; I didn’t do anything” ; and8 ▪ a phone that he gave away t o a friend at school was one of the phones stolen in the T

- M o bile Robbery

. The jury convicted Cain of aggravated robbery with a deadly weapon, and this appeal followed

.
ADMISSION OF EVIDENCE Standard of Review

We review a trial court’s admission of evidenc e for an abuse of discretion.
S andoval v. State , 409 S.W.3d 2 59, 281 , 297 (Tex. App.

— Austin 2013, no pet. )

. A trial court abuses its discretion only if its ruling “lies outside the zone of reasonable disagreement. ” Id. (quoting Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2 010) ). Reversal for a n abus e of discretion in admitting evidence requi re s more than simply disagreeing with the trial court’s ruling

. Powell v. State , 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)

.

If an admission of evidence was an abuse of discretion, we then analyze whether the admi ss ion caused harm by “aff ect[ing] the substanti al rights of the” defendant

. Sandoval , 4 0 9 S.W.3d at 287

. We will not overturn a criminal conviction for non

- constitutional error like wrongful admission of evidence if, after examining the record as a whole , we have fair assuranc e that the error either did not influence the jury or influenced the jury only slightly

. Id.
Rule of Evidence 404(b)

In a portion of his sole appella te issue, Cain contends that evidence of the
T

- Mobile Rob bery was inadmissible unde r Rule of Evidence 404 (b) because that robbery lacked sufficient common characteristics with the Verizon Robbery and so was not probative of Cain’s identity as one of the robbers at the Verizon store

.9 The State may offer “[e]vidence of a crime, wrong, or o t her act” in limited
circ umstances. Tex. R. Evid. 404(b)(1) ; Harmel v. State , 597 S.W.3d 943, 960 (Tex. App.

— Austin 2020, no pet.)

. The State should not offer it “to prove a person ’ s character in order t o show that on a particular occasion the person act e d in accordance with the character.” Tex. R.
E vid. 404(b)(1) ; Harmel , 597 S.W.3d at 960

. But it may offer it “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity , absence of mistake, or lack of accide n t.” Tex. R. Evid. 404(b )(2) (emphasis added) ; accord Harmel , 597 S.W.3d
at 960

. When, as here, the defense puts identity in issue, the State may prove identity by offer ing extraneous

- offense evidence “of modus ope randi in which the pattern and characteri s tics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ‘ signature

. ’ ” Segundo v. State , 270 S.W.3d 79, 88 (Tex. Crim. App. 2008) ; accord Johnson v. State , 68 S.W.3d 64 4, 650

– 51 (Tex. Crim. App. 2002)

. “ N o 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

ma rk bo th crimes as having been commit t ed by the same person. ” Segundo , 270 S.W.3d at 88

. A “signature” may even be just “one unique characteristic” shared by both crimes

— for example, either the use of “the same antique silver crossbow” across several robberies or a rapist

– murderer’s having le ft his DNA inside both of two victim s at or near the time of each victim’s
death. Id. at 88

– 90

. But the shared characteristics must be “something that sets [the e xtraneous offense] apart from its class or type of crime in general, an d marks it distinct iv ely in the same manner as the principal crime .” Id. at 89 n.26 (quoting Ford v. State , 484 S.W.2d 727, 730 (Tex. Crim. App. 1972) ).10 T he State argues that the T

- Mobile Robbery shares sufficient common characteristics with the Verizon Robbery so th at Cain ’s “signature” is on both. It points out that both robberies were committed by a black male dressed in a black or dark hoodie with a Nike logo and black or dark athletic pants

. It notes that officers found evidence in Cain’s phone of his wearing s uch an ou tfit. It also notes that both robberies involved a robber brandish ing a gun, demanding on ly cellphones , making the store employee get on the ground when taken to the back of the store to get the phones, put ting the phone boxes into a black backpa ck , and t hen le aving

. Finally, the State notes that Cain ’s fingerprint was found on the cellphone box dropped in the T

- Mobile Robbery and that he used a cellphone stolen in that r obbery to advertise for sale a phone stol en in the Verizon Robbery.

Cain arg ues tha t the two robberies lack sufficient common characteristics

. He says that witnesses disagreed about the backpack’s color . And he says that “there is nothing
that sets the extraneous T

- Mobile [ Robbery ] apart from its class or type of crime in gen era l , and ma rks it distinctively in the same manner as the” Verizon Robbery. Thus, he says that the “similarities of the extraneous offense and the charged offense

. . . are not as unusual

or idiosyncratic as to signal conclusively that the two offenses w ere the ha nd iwork of the

same individual.”

We agree with the State. In both robberies, no customers were in the store . A robber then entered each store in the early evening through the store’s front door , both times wearing a black or dark Nike hoodie and b lack or d ark athletic pants. In both robberies, a robber had a gun

. In both, a robber demanded phones and nothing else. When taken to the back interior of the store in both robberies, a robber told the store employee to get on the ground. B oth times

a robber to ok unopened boxes of cellphones out of the store’s safe ; put them into a bag , using a11

black backpack across both robberies ; and then left

. Cain admitted having (and giving to a friend) a phone stolen in the T

- Mobile Robbery. Similarl y, officers found i n Cain’s home phones stolen in the Verizon Robbery

. The phone of Cain’s seized at his arrest was a T

- Mobile phone , shared a number that was once “attached” to one of the phones stolen in the T

- Mobile Robbery , was used to advertise the sale of a pho ne stol en in the Verizon Robbery, and contained

a photo of Cain giving an unopened cellphone box to a friend

. We see all this as a set of sufficient common characteristics between the T

- Mobile Robbery and the Verizon Robbery so that both bor e Cain’s mark. See T ex . R. Evid. 404(b)(2) ; Segundo , 270 S.W.3d at 88 ; Johnson , 68 S.W.3d at 650

– 51 . The trial court thu s did not abuse its discretion by admitting , as proof of identity for the Verizon Robbery , evidence of the T

- Mobile Robbery over the R ule 404 (b) objection

. See Sandoval , 409 S.W.3d at 281, 297 . We overrule this portion of Cain’s sole issue.
Rule of Evidence 403

In the remaining portion of his appellate issue, Cain contends that the evidence of the T

- Mobile Robbery was inadmissible under Rule 403 because th e unfair prejudice stemming from admitting that evidence substantially outweighed its probative value.

A trial court may exclude evidence whose “ probative value is substantially outweighed by a dange r of one or more of the following: unfair prejudice, conf u sing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence .” Tex. R. Evid. 403

. U nfair prejudic e involves “an undue tendency to suggest an improper basis for

r eaching a decision , ” Reese v. Sta te , 33 S.W. 3 d 238 , 240 ( T ex. Crim. App. 200 0) , and often involves decision s based on emotion, see Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) ; Gittens v. State , 560 S.W.3d 725, 732 (Tex. App.

— San Antonio 2018, pet. ref’d )

. “ Rule12

403 favors the admission of relevan t evidence and carries a presumption that relevant evidence will be more probativ e than prejudicial .” Davis v. State , 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) ; accord Walter v. State , 581 S.W.3d 957, 978 (Tex. App.

— Eastland 2019, pet. ref’d)

.

Rule 403 c a lls for a balancing test , under which the analysis include s , but need not be limited to, (1) the probative value of the evidence ; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evide nce; an d (4) the proponent ’ s need for it

. Colone v. State , 573 S.W.3d 249, 266 (Tex. Crim. App. 2019) ; Walter , 581 S.W.3d at 978

. P robative value is “the inherent probative force of an item of evidence

— that is, how strongly it serves to make more or less probab l e the existence of a fact of consequence to the litigation

— cou pled with the proponen t ’ s need for that item of evidence .” Davis , 329 S.W.3d
at 806

. E vidence admissible under Rule 404(b) that tend s to prove the defendant ’s identity as perpetrator of the ch a rged offense often is admissible under Rule 40 3 too

. See , e.g. , Johnson , 68 S.W.3d at 651

– 52 ; Lane v. State , 933 S.W.2d 504, 517, 520 (Tex. Crim. App. 1996) ; Burton v. State , 230 S.W.3d 846, 850

– 52 (Tex. App.

— Houston [14th Dist.] 2007, no pet. ) ; Karnes v

. State , 127 S.W.3d 184, 193

– 94 (Tex. App.

— Fort Worth 2003, pet

. ref’d )

.

We review Cain’s contention under the standard Rule 403 factors: (1) the probative valu e of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) th e time needed to develop the evidence; and (4) the proponent ’ s need for it

. See Colone , 573 S.W.3d at 266 ; Walter , 581 S.W.3d at 978

. T he evidence of the T

- Mobile Robbery was highly probative . It contained sufficient com mon characteristics with t h e Veri zon Robbery to suggest that Cain committed both. And it included Cain’s fingerprint on the dropped
T

- Mobile phone box and his having given a stolen T

- Mobile phone to a friend

. T he first13

factor therefore favor s admissibili ty. See Johnson , 68 S.W.3 d at 651

– 52 ; C haparro v. State , 505 S.W.3d 111, 117

– 18 (Tex. App.

— Amarillo 2016, no pet.) ; Burton , 230 S.W.3d at 850

– 52

.

As for the potential of the evidence to impress the jury in an irrational, indelible
way, the evidence of the T

- Mobile R obber y was no m o re inflammatory than, or fundamental ly different in character from, the charged Verizon Robbery. S ee, e.g. , Taylor v. State , 920 S.W.2d 319, 323 (Tex. Crim. App. 1996) (observing that “the first murder, being no more heinous than the second, wa s not like l y to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose”) ; see Regan v. State , 7 S.W.3d 813, 818 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref’d ) ( concluding that evidence of extraneous robbery that made defendant’s identity as perpetrator of charged robbery more probable because of shared modus operandi “ did not have the potential to impress the jury in an irrational way ” )

. T his second factor favor s admissibility

.

Concerning the time needed to develop the evidence , the State called several witnesses, some of whom testified only about the charged Verizon Robbery, others who testified only about t he extraneous T

- Mobile Robbery, and some whose testimony applied to bo t h. Considering all of the pages of the reporter’s record that involved T

- Mob ile Robbery testimony only and the pages that involved that robbery from the witnesses whose testimony appli ed to both robberies, it took the State roughly one

- fourth of its case t o put on the evidence of the
extraneous T

- Mobile Robbery. We do not view th at as an “inordinate” amount of time for this

case. See Caston v. State , 549 S.W.3d 601, 613 (Tex. App.

— Hou ston [1st Dist.] 2017, no pet.)

. This factor therefore points in favo r o f admissibility.

As for the State’s need for the evidence , we note that the State was required to
p rove Cain’s identity as the robber as an element of the charged offense and thus that the State’s14

need for probative evidence of identity was great. Furt her , Cain affirmatively contested his identity as the robber , testifying that he was innocent and had the stolen phones only because a

now - dead person had given them to him , the reby highlighting the State’s need for evidence probative of the robber’s ident ity

. The evidence of the T

- Mobile Robbery helped prove Cain’s identity as the robber in the Verizon Robbery, rebutting his defense that he merely possessed the stolen cellphon es. T he State needed evidence of the T

- Mobile R obbery as identity evidence in th e face of Cain’s defense, see Karnes , 127 S.W.3d at 193

– 94 , so the fourth factor favor s admissibility.

G iven these factors, the trial court reasonably could have concluded tha t the danger of unfair prejudice from admitting evidence about the T

- Mobile Rob be ry did
not “substantially outweigh [],” Tex. R. Evid. 403 , that evidence’s probative value. See Davis , 329 S.W.3d at 806 ; Walter , 581 S.W.3d at 978

. T he trial court thus did not abuse its discretion by admitting evidence of the T

- Mobile Robbery over the Ru le 403 objection. See Chaparro , 505 S.W.3d at 117

- 118 (holding that trial court did not abuse its disc re tion by admitting evidence of extraneous robberies over Rule 403 objection in part because all the robberies shared the robber’s distinctive clothing, his carrying a shotgun and a large knife, and proximity in time and place); Burton , 230 S.W.3d at 850

– 52 (holding that trial court did not abuse its discretion by admitting evidence of extraneous robb eri es over Rule 403 objection in part because all the

ro bberies shared “that the banks all had no onsite security, the robbed tellers were young, and the robber wore a hat and sunglasses and made the robbery demand initially with a note”) . We overrule Cai n’s appellate issue as it relates to his Rule 403 compla int

.15 CONCLUSION We affirm the trial court’s judgment

.

__________________________________________ Chari L. Kelly, Justice Before Justices Goodwin, Kelly, and Smith Affirmed Filed: May 5, 2021 Do Not Publish