Affirmed and Opinion filed October 31, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00054-CR

TRENT MASON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1203977

O P I N I O N

In six issues, appellant Trent Mason appeals his conviction for capital 

murder, complaining of insufficient evidence to sustain his conviction, violation of 

his right to confront and cross-examine witnesses, errors during the State’s closing

argument, admission of improperly suggestive photo spread identifications, 

erroneous admission of extraneous offense evidence, and jury charge error. We 

affirm.
2

Background

Shortly after midnight on January 9, 2009, Randi Johnson returned home 

from work to his apartment in Humble, Texas. At about 1:00 a.m., Johnson heard a 

noise on his balcony, looked out, and saw a man wearing a red shirt and dark hat, 

whom Johnson later identified—both in a pretrial photo lineup and in court—as 

appellant. Someone then kicked in Johnson’s front door, and Johnson testified at 

trial that appellant and two other men entered the apartment. According to 

Johnson, appellant had a “.38 snubnose” revolver and yelled at Johnson to “get 

facedown.” Johnson testified that appellant and the two other men then robbed him

at gunpoint. Johnson jumped off the second floor balcony of his apartment. During 

his escape, he was shot in the leg. 

Johnson’s neighbor, Joel Mitchell, was in his own apartment when he heard 

two or three gunshots and “peek[ed]” outside of his sliding glass door. Mitchell 

saw three men running toward what Mitchell described as a Ford Ranger with 

“faded kind of greenish paint.”1The men saw Mitchell, and one of them fired at 

him. The bullet shattered the sliding glass door. Another neighbor, Deidra Mack,

heard gunshots and Johnson’s door being kicked in. She saw two assailants fleeing 

who fired shots at her. She testified one assailant was wearing a red shirt and both

were wearing hats—one was wearing a black hat, but she could not say which. The 

two assailants got into a truck with a third person who was the driver.

Approximately eight minutes later, Norma Cruz-Ordonez, her husband, and 

her cousins returned to their apartment, which was approximately one block away 

from Johnson’s apartment, after picking Norma up from work. At the time, Norma 

lived in the apartment with her husband, four cousins, three brothers, and two 

 

1 A stolen blue Ford Ranger was recovered later from the parking lot at 412 Bender Street 

where the offense for which appellant was convicted occurred. 
3

children. Shortly after Norma and her family entered their apartment, an armed 

man kicked open their door. Norma identified the man as wearing a red shirt and a 

black cap. She “g[ot] a good look at his face.” The man immediately pointed a gun 

at her, and two more men entered the apartment.

2

They yelled at Norma and her 

husband to lie down on the ground and hand over their wallets. One of them tried 

to shoot Norma’s brother, Alberto, but the gun would not discharge, so he hit 

Alberto in the face with the butt of the gun. Alberto did not see his assailant’s face, 

but testified the assailant was wearing a white shirt.

Norma’s other brother Mauricio, who had been upstairs, heard the yelling 

and came downstairs. As he was walking down the stairs, he was shot and killed. 

Two shots were fired. At trial, Norma identified appellant as the man in the red 

shirt who killed Mauricio. Alberto testified that the person who shot at Mauricio 

the second time was wearing a red shirt, but Alberto did not see who fired the first

shot. Meanwhile, Norma’s third brother, Javier, ran down the stairs behind 

Mauricio, and the man in the red shirt shot Javier in the shoulder. Alberto could not 

identify any of the assailants.

Norma’s husband, Eliseo Mendiete, also testified. In both a pretrial photo 

lineup and in court, Mendiete identified appellant as the man who entered his home 

while wearing a red shirt and a black “handkerchief or rag” on his head. Mendiete

also testified that this man shot and killed Mauricio. Mendiete further identified 

appellant’s cousin, Jeremy Wright, as a participant in the robbery.3

Almost an hour after these crimes occurred, a surveillance camera at a Jack

In The Box fast food restaurant recorded a gold Chrysler Concorde at the drive-

 

2

There is conflicting evidence in the record as to whether the third man entered the 

apartment or stayed outside as the “lookout.” Norma testified the third man looked younger than 

the others.

3

The man wearing the white shirt matched Wright’s description.
4

through. On the video, three people are in the vehicle. Appellant is driving, 

wearing a red shirt, and a woman is in the front passenger seat. One passenger can 

be seen in the backseat, but it is unclear whether there are other occupants in the 

vehicle.

4

The vehicle was registered to Wright’s girlfriend, Jessica Winn. In the 

video, the backseat passenger, who is wearing a white shirt, opens the car door and 

places a cell phone on the ground. The cell phone had been stolen from Johnson’s 

apartment.5 Winn told an officer she thought the backseat passenger was a person 

named “Marquis.”6 Winn also identified the female passenger as Toni McClure,

appellant’s girlfriend. Appellant later testified that one backseat passenger was 

Joshua Manning.

Winn consented to a search of her vehicle.7 When officers arrived at its

location, Manning was there. He immediately told an officer, “I didn’t kill 

anybody.” Manning confessed that he was involved in the two robberies. He told 

an officer that his role at Johnson’s apartment was to retrieve items from the 

apartment and his role at Mauricio’s apartment was to stand by the door and be the 

“lookout.” Fingerprints on the Concorde matched Appellant’s and Wright’s, and 

appellant’s DNA could not be excluded from gloves found inside the vehicle.

8

Appellant sometimes stayed with Wright and their uncle. The murder 

weapon was found in a room in their uncle’s home. Appellant, Wright, and 

 

4 An employee from Jack In The Box testified that there were four people in the vehicle:

a male driver and female front seat passenger and two male backseat passengers.

5 Another patron of Jack In The Box picked the cell phone up and gave it to the employee 

who was working the drive-through. He took the phone home, intending to return it to the owner. 

Officers later recovered the phone from the Jack In The Box employee.

6

Police investigated two possible suspects named “Marquis,” but eliminated them as 

suspects.

7 Winn was in jail when officers contacted her to obtain permission to search the car.

8

The gloves contained a mixture of DNA from three or more people. Neither Wright’s 

nor appellant’s DNA could be excluded from those test results.
5

Manning were arrested.

Appellant testified in his defense to another version of events—that he and 

McClure were staying at a duplex owned by appellant’s cousin, Calvin Beasley,

when Wright drove to the duplex in Winn’s Concorde. Manning and “Marquis”9

also pulled up in a stolen truck. Appellant asked Wright to take him and McClure 

to get something to eat. Wright assented and asked appellant to drive the Concorde. 

Appellant followed Manning and Marquis, who were planning to abandon the 

stolen truck. After they arrived at an apartment complex, Wright got out of the car

and into the truck. Ten to fifteen minutes after the truck drove off, appellant heard 

two shots and saw Wright and Manning running toward him, yelling, “Let’s go!”

They got into the car, and as appellant was driving away, he saw guns in the 

backseat next to Wright, who was counting money. Wright told appellant, “I

believe I shot somebody.” Appellant drove straight back to Beasley’s house. After 

they arrived at the house, McClure said she still was hungry, so she and appellant

went with Wright and Manning to Jack In The Box.

After trial and several days of deliberations, a jury found appellant guilty of 

capital murder, and the trial court sentenced him to life imprisonment without 

parole. 

Discussion

In six issues, appellant challenges the sufficiency of the evidence to sustain 

his conviction and complains of a violation of his right to confront and crossexamine witnesses, error during the State’s closing argument, admission of 

improperly suggestive photo spread identifications, erroneous admission of 

extraneous offenses, and jury charge error. We affirm.

 

9 Appellant did not know Marquis’ last name.
6

I. Evidence Legally Sufficient to Support Conviction

In his first issue, appellant challenges the legal and factual sufficiency of the 

evidence supporting his conviction. We apply only one standard to evaluate 

whether the evidence is sufficient to support a criminal conviction beyond a 

reasonable doubt: legal sufficiency.10 Temple v. State, 390 S.W.3d 341, 360 (Tex. 

Crim. App. 2013); see also Haggerty v. State, 14-12-00461-CR, 2013 WL 

3477571, at *2 (Tex. App.—Houston [14th Dist.] July 11, 2013, no. pet.).

Therefore, when reviewing the sufficiency of the evidence, this Court considers all 

of the evidence in the light most favorable to the jury’s verdict to determine, based 

on that evidence and the reasonable inferences therefrom, if a jury was rationally 

justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360 

(citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Although we consider 

everything presented at trial, we do not reevaluate the weight and credibility of the 

evidence or substitute our judgment for that of the factfinder. Williams v. State, 

 

10 Appellant asserts a court of appeals’ refusal to review the factual sufficiency of the 

evidence violates the Texas Constitution. See Tex. Const. art. V, § 6 (“[T]he decision of [Texas 

Courts of Appeal] shall be conclusive on all questions of fact brought before them on appeal or 

error.”); see also Temple v. State, 342 S.W.3d 572, 648 (Tex. App.—Houston [14th Dist.] 2010) 

(Seymore, J., dissenting to denial of en banc rehearing), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 

2013). Although the Texas Constitution makes intermediate appellate courts’ factual sufficiency 

determinations “final and conclusive” on the Court of Criminal Appeals, it does not prohibit the 

Court of Criminal Appeals from deciding the proper application of the standard of review. 

Temple, 342 S.W.3d at 626-27 (Brown, J., concurring to the denial of en banc rehearing). When 

the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a 

criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis. 

Id. at 628; see also Green v. State, 350 S.W.3d 617, 629 (Tex. App.—Houston [14th Dist.] 2011, 

pet. ref’d) (Frost, J., concurring) (“Even if the justices of this court were to construe article V, 

section 6 of the Texas Constitution to provide for a separate factual-sufficiency review of 

[criminal convictions] by the courts of appeals . . . the Texas Constitution provides that the Court 

of Criminal [Appeals’] construction of article V, section 6 is final and binding upon this court in 

all criminal appeals.” (citing Tex. Const. art. V, § 5(a) (“[T]he Court of Criminal Appeals shall 

have final appellate jurisdiction coextensive with the limits of the state, and its determinations 

shall be final, in all criminal cases.”))). We thus are bound to follow the Court of Criminal 

Appeals’ articulation of the standard of review set forth in Temple. See 390 S.W.3d at 360.
7

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury is the sole judge of 

credibility and weight attached to the testimony of witnesses. Temple, 390 S.W.3d 

at 360 (citing Jackson, 443 U.S. at 319). Our review includes both properly and 

improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). We also consider both direct and circumstantial evidence, as well as 

any reasonable inferences that may be drawn from the evidence. Id.

To prove capital murder under the circumstances of this case, the State was 

required to prove that appellant intentionally caused Mauricio’s death in the course 

of committing robbery. Tex. Penal Code §§ 19.02(b), 19.03(a)(2). A person 

commits robbery if, while in the course of committing theft, he intentionally or 

knowingly threatens someone or places someone in fear of imminent bodily injury, 

or intentionally, knowingly, or recklessly causes bodily injury to someone. Id. 

§ 29.02(a). The jury was instructed that it could find appellant guilty as a principal 

or under the law of parties. A person may be convicted 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 both. Id. § 7.01(a). As relevant under these 

circumstances, a person is criminally responsible for 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. § 7.02(a). When the court’s charge authorizes the jury to convict on several 

different theories, as here, the verdict must be upheld if the evidence is sufficient 

as to any one of the theories. See Martinez v. State, 129 S.W.3d 101, 106 (Tex. 

Crim. App. 2004).

While appellant argues this is a case of mistaken identity, ample evidence 

supports the jury’s verdict. Less than ten minutes before Mauricio was murdered, 

Johnson was shot and robbed in his apartment that was one block away from 
8

Mauricio’s. Johnson testified that appellant was carrying a “.38 snubnose,” which 

was the type of weapon that killed Mauricio. Johnson identified appellant both in a 

pretrial photo lineup and later at trial as the man wearing a red shirt and dark hat

who shot him. Johnson’s neighbor, Mack, also identified one of Johnson’s 

assailants as a male wearing a red shirt. She also testified one of the assailants was

wearing a black hat, although she could not remember which one.

Norma described her brother’s shooter as wearing a red shirt and black cap. 

She “g[ot] a good look at his face” and identified appellant at trial as the man who 

killed Mauricio. Alberto testified that the man he saw shoot at Mauricio was 

wearing a red shirt. Mendiete likewise identified Mauricio’s shooter as wearing a 

red shirt and black “handkerchief or rag” on his head. Mendiete positively 

identified appellant as the shooter both in a pretrial photo lineup and in court.

Although appellant’s defense at trial was that the State’s witnesses had mistaken 

him for Wright, Mendiete also positively identified Wright in a pretrial photo 

lineup as another participant in the robbery.11

Less than an hour after the shooting, appellant was videotaped at Jack In The 

Box wearing a red shirt and driving a car with an occupant who abandoned

Johnson’s stolen cell phone. Appellant admitted that he was the driver of the car. 

His DNA could not be excluded from gloves that were inside the car, and his 

fingerprints were on the car.

Appellant admitted that he was with Wright and Manning and a stolen truck 

at Johnson’s apartment complex near where Norma’s family was robbed and 

Mauricio was murdered. Mitchell’s testimony describing the truck used as a 

“getaway” from Johnson’s robbery resembled the vehicle that was found at 

 

11 An officer testified that Mendiete positively identified Wright in a pretrial photo 

lineup.
9

Mauricio’s apartment complex.12 The murder weapon was recovered subsequently 

at the home of appellant’s uncle, where appellant and Wright sometimes stayed.

Appellant argues the following facts show the evidence supporting his 

conviction is legally insufficient: there were discrepancies between the police 

report and witness testimony, Norma could not remember certain details about the 

shooter and his weapon, Alberto could not identify any of the assailants and was 

confused about certain details of the crime, appellant’s boots were a larger size 

than the shoes obtained from the Concorde, and the only DNA evidence linked to

appellant was found in the work gloves in the Concorde. However, any 

inconsistencies in the evidence, and specifically in the witnesses’ identification of 

defendants, are matters to be weighed by the jury in its determination of guilt and 

innocence and do not alone render the evidence insufficient. See Amador v. State, 

376 S.W.3d 339, 345 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also

Kesaria v. State, 148 S.W.3d 634, 641 (Tex. App.—Houston [14th Dist.] 2004) 

(“[A] decision is not manifestly unjust merely because the jury resolved conflicting 

views of the evidence in favor of the State.”), aff’d, 189 S.W.3d 279 (Tex. Crim. 

App. 2006). Moreover, we give great weight to the fact that Norma and Mendiete 

both positively identified appellant as Mauricio’s killer. Cf. Kesaria, 148 S.W.3d at 

641 (noting positive identification by the victim of a crime is “to be given great 

weight”).

Viewing the evidence in the light most favorable to the jury’s verdict, we 

conclude the evidence is legally sufficient to support the jury’s finding that

 

12 Mitchell described the vehicle as a “greenish” Ford Ranger when it was actually blue.

An officer testified it is not uncommon for witness statements to vary from the actual color of a 

vehicle involved in a crime, so Mitchell’s statement that the truck was “greenish” was not 

surprising.
10

appellant committed capital murder. We overrule appellant’s first issue. 

II. Admitting Custodial Statement Harmless and Excluding Statement 

to Inmate Not Error

In his second issue, appellant complains that the trial court abused its 

discretion in (1) allowing the State to elicit testimony from an officer regarding 

Manning’s custodial statement about the robbery at Mauricio’s apartment and (2) 

preventing appellant from eliciting Manning’s statement to another inmate that 

Manning had shot a man. We address each issue in turn.

A. Testimony Regarding Manning’s Custodial Statement

An officer testified that when the search warrant was executed on the 

Concorde, which was located at a residential address, Manning was there. When 

the officer saw Manning, the officer said, “You’re the kid from the video. I need to 

talk to you.” Manning immediately volunteered, “I didn’t kill anybody.”

Appellant’s attorney did not object to this testimony.

The officer subsequently took Manning to the police station where he made 

a statement after his Miranda rights were administered to him by a judge.13

Defense counsel objected to the admissibility of Manning’s custodial statement on 

the grounds that it violated appellant’s Sixth Amendment right to confront the 

witness and is hearsay. Defense counsel articulated his concern that Manning’s 

claim that he was not the shooter would incriminate appellant.

The trial court allowed the State to elicit the following testimony regarding 

Manning’s custodial statement over defense counsel’s objection:

[State:] Did you ask [Manning] about his involvement in 

[robbing Johnson]?

 

13 A judge was required to administer Manning’s Miranda rights because he was a minor.

See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).
11

[Officer:] Yes, ma’am.

[State:] What did he say his involvement was . . . ?

[Officer:] His job was to get items out of the apartment.

. . . .

[State:] Did you ask him about his involvement at [Mauricio’s 

apartment]?

[Officer:] Yes, ma’am.

[State:] And what did he say?

[Officer:] He told me he was the lookout. He stood by the door.

On appeal, appellant argues that the trial court’s admission of the officer’s 

testimony with regard to Manning’s custodial statement violated appellant’s right 

under the Sixth Amendment of the United States Constitution to confront Manning

and cross examine him regarding whether he was the shooter.

14

Assuming without deciding that the officer’s testimony regarding Manning’s

custodial statement was erroneously admitted, a violation of a defendant’s right to 

confrontation is subject to harmless error analysis. Rubio v. State, 241 S.W.3d 1, 3 

(Tex. Crim. App. 2007); Wilson v. State, 296 S.W.3d 140, 149 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref’d). Thus, even if the admission of the testimony 

were erroneous, we nevertheless will affirm the conviction if we determine beyond 

a reasonable doubt that the alleged error did not contribute to appellant’s 

 

14 Under the Confrontation Clause made applicable to the states through the Fourteenth 

Amendment, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) 

(citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). In Crawford v. Washington, the Supreme 

Court interpreted this to mean that “testimonial” evidence is inadmissible at trial unless the 

witness who made the testimonial statement either takes the stand to be cross-examined or is 

unavailable and the defendant had a prior opportunity to cross-examine him. Id. (citing Crawford 

v. Washington, 541 U.S. 36, 54 (2004)).
12

conviction. Wilson, 296 S.W.3d at 149; see also Tex. R. App. P. 44.2(a).

In determining whether the admission of the statement was harmless beyond 

a reasonable doubt, we consider: (1) the importance of the statement to the State’s 

case; (2) whether the statement was cumulative of other evidence; (3) the presence 

or absence of evidence corroborating or contradicting the statement on material 

points; and (4) the overall strength of the State’s case. Wilson, 296 S.W.3d at 149.

In addition to those factors, we also may consider the source and nature of the

error, the extent of the State’s emphasis on the evidence, and the relative weight 

the jury may have assigned to the evidence as compared with the balance of the 

remaining evidence relevant to the issue. Scott v. State, 227 S.W.3d 670, 690 (Tex.

Crim. App. 2007); Wilson, 296 S.W.3d at 149. Finally, we consider any other 

factor contained in the record that might shed light on the probable impact of the 

evidence on the minds of average jurors. Clay v. State, 240 S.W.3d 895, 904 (Tex.

Crim. App. 2007); Wilson, 296 S.W.3d at 149.

We are not simply to decide whether the jury verdict enjoyed evidentiary 

support. See Scott, 227 S.W.3d at 690; see also Wilson, 296 S.W.3d at 149. 

Instead, the question is whether the alleged constitutional error was actually a 

contributing factor in the jury’s deliberations in arriving at a verdict. Scott, 227 

S.W.3d at 690; Wilson, 296 S.W.3d at 149. Thus, Confrontation Clause error does

not require reversal unless there is a reasonable possibility that, within the context 

of the entire trial, the perceived error “moved the jury from a state of nonpersuasion to one of persuasion on a particular issue.” Scott, 227 S.W.3d at 690; 

Wilson, 296 S.W.3d at 149.

After reviewing these considerations, we are persuaded beyond a reasonable 

doubt that the jury would have found appellant guilty of capital murder even if the 

trial court had not admitted the officer’s testimony about Manning’s custodial 
13

statement. See Clay, 240 S.W.3d at 905; see also Wilson, 296 S.W.3d at 149. 

Not important to the State’s case. The statement—regarding Manning’s

removing items from Johnson’s apartment and being the “lookout” in the robbery 

during which Mauricio was killed—was not particularly important to the State’s 

case. The statement did not incriminate appellant because it did not place him at 

the crime scene—it merely supported an inference that Manning was not the 

shooter. The State did not focus on Manning’s custodial statement during its 

closing argument or otherwise throughout the lengthy trial proceedings. See

Wilson, 296 S.W.3d at 149. Instead, the State heavily emphasized the other 

witnesses’ testimony identifying appellant as the shooter and the evidence linking 

appellant to both robberies, such as his presence in the car with Wright and 

Manning when Johnson’s cell phone was abandoned. See Clay, 240 S.W.3d at 905; 

see also Wilson, 296 S.W.3d at 149.

Corroborated by and cumulative of other evidence. Manning’s 

statements were corroborated by and cumulative of other evidence. First, the 

officer testified that Manning said, “I didn’t kill anybody,” and defense counsel did 

not object to that statement. Second, Norma and Mendiete both identified appellant

as the shooter. Third, the numerous descriptions of the shooter in the red shirt and 

black head covering matched appellant’s description. Fourth, Manning was the 

only party to the crime who was not identified by an eyewitness, which 

corroborates his story that he did not enter Mauricio’s apartment.

Strength of the State’s case without the Statement. Finally, as set forth 

above, overwhelming evidence regarding appellant’s identity and participation in 

the robberies supported the jury’s finding that appellant committed capital murder, 

whereas Manning’s custodial statements established little, if anything, negative 

about appellant that was not also well established by the properly admitted 
14

evidence. See Clay, 240 S.W.3d at 905-06; see also Wilson, 296 S.W.3d at 150. In 

Clay, the Court of Criminal Appeals stated:

The State’s case establishing appellant’s guilt of aggravated robbery, 

either as a principal or as a party, was straightforward and strong—

unshakeable eyewitnesses placing him in the vicinity of the crime and 

shortly thereafter at the scene of the crime itself, together with other 

circumstances strongly indicating his guilt—and leaves us firmly 

convinced that in the absence of the erroneously admitted testimony, a 

reasonable jury would not have found the State’s case significantly 

less persuasive. 

240 S.W.3d at 905. Similarly, here, the State presented a strong case establishing 

appellant’s guilt, including eyewitness testimony placing him in the vicinity of the 

crime and at the scene of the crime, along with other circumstances strongly 

indicating his guilt. Accordingly, the record indicates the jury probably assigned 

very little weight, if any, to Mannings’ custodial statement. See Wilson, 296 

S.W.3d at 150.

After considering all of the harmless error factors, we find no reasonable 

probability that the trial court’s alleged Confrontation Clause error “moved the jury 

from a state of non-persuasion to one of persuasion” on the issue of appellant’s 

guilt. See id. at 149. We hold the admitted evidence was harmless. We turn to 

appellant’s second complaint regarding whether the trial court erred in excluding 

evidence of Manning’s statement that he shot a man.

B. Testimony Regarding Manning’s Statement that He Shot a Man

Appellant also complains that the trial court excluded testimony from an 

inmate that Manning told the inmate he had chased down and shot a man. At trial, 

appellant proffered the following testimony from Jimmi Butler, who was housed in 

a cell next to Manning’s: 

“[Manning] basically told me that—he said that he had killed 
15

somebody and he signed [a plea bargain]. And the State wanted him 

to testify against his codefendant [appellant] that he did it. But he said 

that [appellant] didn’t do it.”

“Joshua Manning told me that he had killed a Mexican. He told me he 

chased him down . . . [i]nside [a residence].”

“He told me that the State believed that [appellant] had—had 

committed the murder or offense or whatever. And the State wanted 

him to testify that he did it.”

Manning put teardrop tattoos on his face, which signified that he had 

killed someone.

“I cut Josh off . . . when he . . . went to tell me that he was guilty of 

this . . . crime . . . because I didn’t want to hear it.”

“[Manning] didn’t say [appellant] was in the house.”15

“I think somebody else was with him, but he didn’t . . . tell me. I don’t 

recall him telling me specifically anybody [sic] name. But I believe 

somebody else was with him.”

“I can’t give you no timeframe.”

“[Manning] told me he was just robbing the dude. . . . He said he tried 

to run. He said he chased him down.”

“[Manning] said [the man he shot] ran inside the house.”

“[Manning] didn’t clarify what type of house [they were in]. I’m 

pretty sure it wasn’t no—no trailer though.”

Manning did not tell Butler any other details of the crime. The trial court excluded 

the testimony on the ground that it was not corroborated by “circumstances that 

clearly indicate the trustworthiness of the statement.”

Appellant argues this evidence was admissible as a statement against interest 

 

15 Appellant misstated the record in his appellate brief in stating, “Manning told Butler 

that appellant was not even in the house when the robbery and shooting occurred.” 
16

under Texas Rule of Evidence 803(24). A statement against interest in the criminal 

context is an exception to the hearsay rule that tends to subject the declarant to 

criminal liability. Tex. R. Evid. 803(24); see also Walter v. State, 267 S.W.3d 883, 

890 (Tex. Crim. App. 2008). The rule sets out a two-step foundation requirement 

for admissibility. Walter, 267 S.W.3d at 890. First, the trial court must determine 

whether the statement, considering all the circumstances, subjects the declarant to 

criminal liability and whether the declarant realized this when he made the

statement. Id. at 890-91. Second, the court must determine whether there are 

sufficient corroborating circumstances that clearly indicate the trustworthiness of 

the statement. Id. at 891. Both statements that are directly against the declarant’s 

interest and collateral “blame-sharing” statements may be admissible under rule 

803(24) if corroborating circumstances clearly indicate their trustworthiness. Id. at 

896; see also Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, 

pet. ref’d).

The determination of whether corroborating circumstances clearly indicate 

trustworthiness lies within the trial court’s sound discretion. Cunningham v. State, 

877 S.W.2d 310, 313 (Tex. Crim. App. 1994). When analyzing the sufficiency of 

corroborating circumstances, a number of factors are relevant: (1) whether the guilt 

of the declarant is inconsistent with the guilt of the defendant; (2) whether the 

declarant was so situated that he might have committed the crime; (3) the timing of 

the declaration; (4) the spontaneity of the declaration; (5) the relationship between 

the declarant and the party to whom the statement was made; and (6) the existence 

of independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. 

Crim. App. 2004). The trial court may consider evidence which undermines the 

reliability of the statement as well as evidence corroborating its trustworthiness. 

Cunningham, 877 S.W.2d at 312; see also Bingham v. State, 987 S.W.2d 54, 58 
17

(Tex. Crim. App. 1999).

Assuming without deciding that the excluded statement subjected Manning 

to criminal liability,16 weighing the factors above, we conclude the trial court was 

within its discretion to conclude there are not sufficient corroborating 

circumstances that clearly indicate the trustworthiness of the statement. First, 

Manning’s description of the shooting was not sufficiently detailed to determine 

whether he was referring to the same offense for which appellant was charged. 

Butler cut off Manning’s story because Butler “didn’t want to hear it.” Manning 

did not provide details regarding when or where the shooting purportedly 

happened, whether there were witnesses, what type of gun he used, where the 

bullet struck the victim, or whether others participated in the crime. This lack of 

certainty regarding Manning’s statement does not show whether his guilt is 

inconsistent with appellant’s or that Manning was so situated that he might have 

committed this crime. See Prince v. State, 192 S.W.3d 49, 59 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d) (holding guilt of declarant was inconsistent 

with guilt of defendant when, among other things, evidence did not indicate 

declarant’s location or situation at the time of murder, declaration was made 

several months after the defendant was arrested for murder, and statement did not 

indicate declarant had intimate familiarity with the crime, revealing only general 

reports of the crime).

Second, the timing and the relationship between Manning and Butler, 

another inmate, indicates that Manning could have made the statement to appear 

tougher among the other, older inmates. Manning told Butler that he already had 

 

16 Manning apparently pleaded guilty to murder in connection with the robbery. It is 

unclear from the record whether he had done so by the time he made the statement to Butler, 

although appellant proffered testimony from Butler that Manning already had pleaded guilty 

when he made the statement.
18

entered into a plea bargain with the State and was aware that he was facing 

significant jail time. Thus, although Manning made the spontaneous statement at a 

time when he had no motive to minimize his involvement in the crime, he may 

have had a motive to bolster his reputation with the other inmates.

Third, and perhaps most importantly, even if Manning’s statement that he 

was the shooter referred to this case, it is not corroborated by the facts presented at 

trial. Manning said that he shot a man during the course of a robbery while chasing 

him into a house. By contrast, the evidence presented at trial was that Mauricio 

was inside an apartment coming down the stairs when he was shot. He was not 

“chased down” by his assailant into a house. In addition, Mendiete and Norma both 

positively identified appellant as the shooter, and Alberto testified the man in the 

white shirt, whose description matched Wright’s, was the person who attacked 

him. The murder weapon was found at the house where appellant and Wright—not 

Manning—sometimes stayed. Moreover, all three witnesses testified a third 

perpetrator served as the lookout, whom Norma testified was “a little younger”

than the others, which pointed to Manning. See Gonzalez v. State, 296 S.W.3d 620, 

629 (Tex. App.—El Paso 2009, pet. ref’d) (holding timing of statement combined 

with contradictory testimony of two witnesses was not sufficiently convincing to 

clearly indicate its trustworthiness).

After carefully weighing the factors and the evidence, we conclude they 

support the trial court’s finding that Manning’s statement was unreliable. Because 

there were insufficient corroborating circumstances to indicate the trustworthiness 

of Manning’s statements, we conclude appellant failed to show the trial court 

abused its discretion.17 See Prince, 192 S.W.3d at 59; see also Auston v. State, 892 

 

17 Appellant also argues, “If Manning was [sic] on trial instead of appellant, the State 

would have sought to introduce Butler’s testimony against Manning under art. 38.075, which 

clearly lowers the burden of ‘corroboration’ found in T.R.E. [sic] 803(24).” Assuming the truth 
19

S.W.2d 141, 144 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (“Under such 

circumstances where the factors indicating untrustworthiness are at least equal to 

or greater than those offered to support the trustworthiness of the alleged 

statement, we cannot, as requested, find that corroborating circumstances clearly 

indicate trustworthiness.”).

Appellant also argues the trial court abused its discretion in excluding 

Manning’s statement to Butler (1) to rebut the State’s evidence of Manning’s 

statement to the officer that Manning was not the shooter and (2) in violation of 

appellant’s right under the Confrontation Clause of the United States Constitution 

to present a complete defense.

18 Appellant offered Manning’s statement to Butler 

as a statement against interest, but expressly did not offer it to rebut the State’s 

evidence of Manning’s statement to the officer.

19 Moreover, appellant did not 

complain in the trial court that the exclusion of the evidence violated his right to 

present a complete defense. Appellant thus has waived these arguments on appeal.

See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing 

 

of appellant’s assertion, it is unclear how it would support a holding that the testimony was 

admissible in this case.

18 A defendant’s constitutional right to a meaningful opportunity to present a complete 

defense is rooted in the Fourteenth Amendment’s Due Process Clause and the Sixth 

Amendment’s Compulsory Process and Confrontation Clauses under the United States 

Constitution. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).

19 Defense counsel stated, 

[A]s to whether or not it’s hearsay, it is. But it clearly is a statement against penal 

interest. . . . But our position is . . . that we’re not here to impeach Joshua 

Manning, as much as we are offering a defensive theory for . . . [appellant].

. . . .

[W]e’re offering under the 802, the exception to hearsay Rule 24, statement 

against penal interests—or statement against interests. Clearly the declarant in this 

case, Joshua Manning, has made a statement that exposes him to criminal 

liability. And it is sufficiently corroborated by the evidence in this case.

(Emphasis added.)
20

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (noting a defendant 

forfeits a claim that he was denied the right to present a defense under the United 

States and Texas Constitutions by failing to lodge proper objection at trial)); see 

also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (acknowledging 

to avoid waiver on appeal, party seeking to introduce evidence must object at trial 

to trial court’s exclusion of evidence with an argument stating the “very complaint 

that party is now making on appeal”). 

For the foregoing reasons, we overrule appellant’s second issue.

III. No Error Regarding Closing Argument

In his third issue, appellant contends the trial court abused its discretion by 

allowing the State’s attorney to ask the jurors to place themselves in the shoes of 

the victim and to personally attack defense counsel. We conclude the first 

complaint and part of the second were not preserved and the trial court did not 

abuse its discretion in overruling the remainder of the second complaint.

During closing argument, the State’s attorney asked the jury to “imagine” 

what it must have been like for Norma to experience the events that she did. 

Appellant argues this was improper jury argument, but concedes defense counsel 

did not object to it. Therefore, appellant has waived this complaint.20 See Cockrell 

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“[A] defendant’s failure to 

object to a jury argument or . . . to pursue to an adverse ruling his objection to a 

jury argument forfeits his right to complain about the argument on appeal.”); see 

 

20 Appellant urges us to follow Boyington v. State, 738 S.W.2d 704 (Tex. App.—Houston 

[1st Dist.] 1985, no pet.), in which the court of appeals reversed the defendant’s conviction 

despite defense counsel’s failure to object to the State’s argument in which he asked the jurors to 

put themselves in the place of the victims. Id. at 710. However, in that case, the court of appeals 

held that defense counsel’s failure to object to the prosecutor’s argument constituted ineffective 

assistance of counsel. Id. at 709-10. Ineffective assistance of counsel is not at issue here.
21

also Nadal v. State, 348 S.W.3d 304, 319 (Tex. App.—Houston [14th Dist.] 2011, 

pet. ref’d). 

Appellant also argues the following statements by defense counsel during 

closing argument were improper: 

“And that’s another tactic by the defense, to point the finger 

somewhere else but at their client”; and 

“[D]on’t think about the dog and pony show that they did, to try to

direct you off the evidence that you know to point toward this man.”

Defense counsel objected to the first statement but not the second. Therefore,

appellant did not preserve error regarding the second statement. See Cockrell, 933 

S.W.2d at 89; see also Nadal, 348 S.W.3d at 319. We thus only address whether 

the trial court abused its discretion in failing to exclude the first statement.21

Jury argument must fall into one of four areas to be permissible: 

(1) summation of evidence; (2) reasonable deduction from the evidence; (3) an 

answer to the argument of opposing counsel; or (4) a plea for law enforcement. 

Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Ayala v. State, 267 

S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.] 2008, pet. filed). Even when an 

argument exceeds the permissible bounds of these approved areas, an error will not 

constitute reversible error unless, in light of the record as a whole, the argument is 

extreme or manifestly improper, violative of a mandatory statute, or injects new 

facts harmful to the accused into the trial proceeding. Ayala, 267 S.W.3d at 433. A 

prosecutor runs the risk of going outside of these permissible areas when her 

 

21 Appellant also argues the State’s argument “presents a [Fourteenth Amendment] due 

process claim because it so infected the trial with unfairness that . . . appellant’s conviction 

constitutes a denial of protection guaranteed by the United States and Texas Constitutions.” 

Appellant did not object to the State’s argument on this basis at trial and thus has waived this 

argument on appeal. See Broxton, 909 S.W.2d at 918 (noting complaints, even of constitutional 

magnitude, are waived on appeal if not called to trial court’s attention).
22

argument is made in terms of defense counsel personally and when the argument 

explicitly impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249, 

259 (Tex. Crim. App. 1998). However, we consider counsel’s remarks during final 

argument in the context in which they appear. Ayala, 267 S.W.3d at 433.

Here, viewing the State’s argument in its entire context, the statement that 

defense counsel’s strategy was a “tactic” to “point the finger somewhere else” was 

not an attack on defense counsel. Rather, it was an answer to the argument of 

opposing counsel that the witnesses had misidentified appellant as the shooter and 

that forensic evidence did not incriminate appellant. See, e.g., Coble v. State, 871 

S.W.2d 192, 205 (Tex. Crim. App. 1993) (concluding trial court did not abuse 

discretion in overruling objection to prosecutor’s remark that defense counsel was 

arguing “something ridiculous” in response to defense counsel’s argument); Pope 

v. State, 161 S.W.3d 114, 126-27 (Tex. App.—Fort Worth 2004) (concluding 

State’s references to defense counsel’s attacks on DNA evidence as “smoke and 

mirrors” and “red herrings or rabbit trails” designed to throw the jury off and 

cautioning the jury not to be “hoodwinked, . . . buffaloed, . . . [or] spooked” by the 

defense’s arguments were proper responses to arguments of the defense), aff’d, 207 

S.W.3d 352 (Tex. Crim. App. 2006); Gonzales v. State, 831 S.W.2d 491, 494 (Tex. 

App.—Houston [14th Dist.] 1992, pet. ref’d) (holding prosecutor’s reference to 

defense counsel’s argument as “rabbit trails” and “bunny trails” was proper 

response to defense counsel’s argument). Thus, the trial court did not abuse its 

discretion in overruling appellant’s objection to the statement.

We overrule appellant’s third issue. 

IV. No Error in Admitting Evidence Regarding Pretrial Photo 

Identifications

In his fourth issue, appellant argues that the trial court abused its discretion
23

in admitting evidence regarding pretrial photo identifications by Norma, Mendiete, 

and Johnson. Appellant did not preserve error on his objection to the pretrial 

identification by Norma.22 See Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. 

App. 1986) (requiring defendant to complain or object in the trial court to preserve 

argument that pretrial identification was suggestive); see also Haq v. State, 01-11-

01057-CR, 2013 WL 1890260, at *6 (Tex. App.—Houston [1st Dist.] May 7, 

2013, no pet.); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.—Houston [14th 

Dist.] 1996, pet. ref’d). Accordingly, we address only appellant’s complaints 

regarding his pretrial identifications by Mendiete and Johnson.

Appellant neither objected at trial to the witnesses’ in-court identifications 

nor challenges them on appeal. The failure to complain or object in the trial court 

to in-court identifications waives any complaint regarding the in-court 

identifications on appeal. See Ballah v. State, No. 14-10-00460-CR, 2012 WL 

19653, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet. ref’d) (mem. op.) 

(citing Perry v. State, 703 S.W.2d 668, 670, 673 (Tex. Crim. App. 1986)). 

Therefore, we consider only appellant’s arguments concerning the pretrial 

identification procedures with regard to Mendiete and Johnson. See id.

 

22 Appellant objected to his pretrial identification by Mendiete by urging an oral motion 

to suppress at trial. Appellant objected to his pretrial identification by Johnson during a hearing 

in which the State proffered testimonial evidence by an officer regarding that photo lineup. 

Norma testified that she viewed a photo lineup at the police station about a month after 

the offense and identified someone. Conversely, two officers testified Norma did not identify 

appellant in a pretrial photo lineup. According to the officers, Norma only viewed a photo lineup 

at the police station on the morning after the offense, which did not include a picture of 

appellant. 

Appellant’s attorney objected to the admission of Norma’s pretrial identification on the 

ground that “the evidence of confusion with [Norma], as to whether or not she was even shown a 

photo spread, leads questions to the v[e]racity of the process.” This objection was too late 

because it came after Norma’s testimony and one officer’s testimony regarding Norma’s viewing 

of the photo lineup had been admitted. See Tex. R. App. P. 33.1 (requiring timely and specific 

objection to preserve error).
24

We review de novo the question of whether a pretrial identification 

procedure was impermissibly suggestive. Gamboa v. State, 296 S.W.3d 574, 581 

(Tex. Crim. App. 2009); Adams v. State, 397 S.W.3d 760, 764 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). First, we determine if the pretrial 

identification procedure was impermissibly suggestive. Gamboa, 296 S.W.3d at 

581; Adams, 397 S.W.3d at 764. Second, if we conclude that the procedure was 

impermissibly suggestive, we then determine if the impermissibly suggestive 

nature of the pretrial lineup gave rise to a substantial likelihood of irreparable 

misidentification. Gamboa, 296 S.W.3d at 581-82; Adams, 397 S.W.3d at 764. If 

the pretrial procedure is found to be impermissibly suggestive, identification 

testimony would nevertheless be admissible where the totality of the circumstances 

shows no substantial likelihood of misidentification. Adams, 397 S.W.3d at 764. 

Appellant must show by clear and convincing evidence that the identification has 

been irreparably tainted before we can reverse his conviction. See Barley v. State, 

906 S.W.2d 27, 34 (Tex. Crim. App. 1995); see also Santos v. State, 116 S.W.3d 

447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Assuming without deciding that the pretrial identification procedures used in 

this case were impermissibly suggestive, appellant has failed to show by clear and 

convincing evidence that these procedures gave rise to a substantial likelihood of 

irreparable misidentification. The factors we consider when determining this issue

include (1) the witness’s opportunity to view the perpetrator at the time of the 

offense, (2) the witness’s degree of attention during the offense, (3) the accuracy of 

the witness’s prior description of the perpetrator, (4) the witness’s level of certainty 

regarding his identification at the time of confrontation, and (5) the lapse of time 

between the offense and the subsequent confrontation. Gamboa, 296 S.W.3d at 

582; Adams, 397 S.W.3d at 764. We consider these issues of historical fact in the 
25

light most favorable to the trial court’s ruling, then weigh them de novo against the 

“corrupting effect” of the suggestive pretrial identification procedure. Adams, 397 

S.W.3d at 764.

Here, Mendiete testified in detail regarding the several minutes during which 

he was able to observe the suspect at very close range. Mendiete testified he was 

lying face up, appellant was within a few feet of him, the lighting was good, and 

Mendiete was able to get a good look at appellant’s face and eyes and recognized 

appellant at trial.

23 Mendiete’s description of appellant—that he was wearing a red 

shirt and black head covering—was consistent with other witnesses’ descriptions 

and appellant’s appearance on the video less than an hour after the robbery. An 

officer testified that Mendiete immediately chose the photograph of appellant and 

told the officer he was “[o]ne hundred percent” certain that appellant was the 

assailant who shot Mauricio. The identification occurred less than a month after the 

offense.

From the context of Johnson’s testimony, it was clear that he got a good look 

at the suspect at very close range. Johnson testified he could reach out and touch 

his assailants when they came into his apartment, they were approximately four to 

five feet away, and he “could clearly make out [appellant’s] face” and had “no 

problem seeing his facial features.” Johnson also testified he paid close attention to 

his assailant because he was holding a gun. Johnson’s description of appellant also 

matched the other witnesses’ descriptions—that he was wearing a red shirt and 

dark (black or navy) cap—and appellant’s appearance on the video. Although 

 

23 Appellant argues Mendiete’s testimony was inconsistent with regard to whether 

Mendiete was lying face up or face down, whether he saw three men or only two, and who shot 

Javier. Appellant also complains that the detail about the red shirt was not included in 

Mendiete’s statement to the police. These are credibility issues that we leave to the trial court. 

See Adams, 397 S.W.3d at 763.
26

appellant took 15 to 30 seconds to choose between two photographs,24 an officer 

testified Johnson reported he was “sure” about his identification of appellant as his 

assailant. When Johnson made his choice, he said, “This is the guy.” The 

identification occurred only twelve days after the offense.

Based on the foregoing facts, even if the photo lineups were impermissibly 

suggestive, the totality of the circumstances shows no substantial likelihood of 

misidentification occurred. See Adams, 397 S.W.3d at 764.

We overrule appellant’s fourth issue.

V. No Error in Admitting Evidence of Extraneous Offenses

In his fifth issue, appellant complains that the trial court abused its discretion 

in admitting evidence of the following extraneous offenses in violation of Texas 

Rules of Evidence 40325 and 404: the aggravated robbery and assault of Johnson 

and the aggravated assault of Mitchell, which occurred as the suspects drove away 

from Johnson’s apartment complex.

Rule 404(b) states that “[e]vidence 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); Martin v. State, 173 S.W.3d 463, 466 (Tex. 

Crim. App. 2005). Rule 403 provides that even relevant evidence may be excluded 

if “its probative value is substantially outweighed by the danger of unfair 

 

24 Before choosing the photo of appellant, Johnson told the officer that the suspect in one 

photo had a similar chin, nose and mouth and the suspect in the other photo had similar eyebrows 

to appellant’s. The officer testified Johnson took an unusually long time to choose between the 

two photos.

25 Appellant states that Rule 403 “provides that relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice,” see Texas Rule of 

Evidence 403, but does not analyze how the probative value of the extraneous offenses was 

outweighed by the danger of unfair prejudice. We nonetheless address the issue in conjunction 

with appellant’s extraneous offense argument.
27

prejudice,” among other things. Tex. R. Evid. 403; Martin, 173 S.W.3d at 466.

“‘Relevant evidence’ means evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable 

or less probable than it would be without the evidence.” Tex. R. Evid. 401;

Martin, 173 S.W.3d at 466. However, Rule 404(b) also provides that extraneous 

offense evidence may “be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident[.]” Martin, 173 S.W.3d at 466 (quoting Rule 404(b)). This list is 

illustrative, rather than exhaustive, and extraneous-offense evidence may be 

admissible when a defendant raises a defensive issue that negates one of the 

elements of the offense. Id. Thus, a party may introduce evidence of other crimes, 

wrongs, or acts if such evidence logically serves to make more or less probable an 

elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or 

defensive evidence that undermines an elemental fact. Id. Whether extraneous 

offense evidence has relevance apart from character conformity, as required by 

Rule 404(b), is a question for the trial court. Id. 

In this case, appellant’s identity as the perpetrator of the crime was hotly 

contested. Identity may be placed in dispute by the defendant’s opening statement 

or cross-examination, as well as by affirmative evidence offered by the defense. 

Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). Cross examination 

places identity at issue if it implies the witness’s identification of the defendant is 

not trustworthy. See Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). 

Throughout trial, appellant raised the issue of identity as a defense by vigorously 

cross-examining witnesses regarding the reliability of their in and out of court 

identifications26 and presenting evidence that the witnesses may have mistaken 

 

26 Appellant cross examined the witnesses regarding whether they could identify him 
28

appellant for Wright, his cousin who resembled him. Accordingly, appellant placed 

his identity as the perpetrator in dispute. But our inquiry does not end with a 

defendant’s raising the issue of identity. Page v. State, 213 S.W.3d 332, 336 (Tex. 

Crim. App. 2006).

Extraneous offense evidence is admissible under both Rules 404(b) and 403 

if that evidence satisfies a two-prong test: whether the evidence is relevant to a fact 

of consequence in the case apart from its tendency to prove conduct in conformity 

with character and whether the probative value of the evidence is substantially 

outweighed by unfair prejudice. Page, 213 S.W.3d at 336; Martin, 173 S.W.3d at

466. We must uphold a trial court’s ruling on the admissibility of evidence “as long 

as the trial court’s ruling was at least within the zone of reasonable disagreement.” 

Martin, 173 S.W.3d at 467.

When the extraneous offense is introduced to prove identity by comparing 

common characteristics, it must be so similar to the charged offense that the 

offenses illustrate the defendant’s “distinctive and idiosyncratic manner of 

committing criminal acts.” Page, 213 S.W.3d at 336; Martin, 173 S.W.3d at 468. 

Such extraneous offense evidence is admissible to prove identity when the 

common characteristics of each offense are so unusual as to act as the defendant’s 

“signature.” Page, 213 S.W.3d at 336. The signature must be apparent from a 

comparison of the circumstances in both cases. Id. To determine the similarity 

between the offenses for the purpose of establishing identity, appellate courts 

should take into account both the specific characteristics of the offenses and the 

time interval between them. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim.

App. 2002). The extraneous offense and the charged offense can be different 

 

because of their ability to see his face, the lighting in their homes at the time of the crimes, 

whether they needed—and if so, wore—glasses, their perception of his height and weight, and 

their ability to recall his features. 
29

offenses, so long as the similarities between the two offenses are such that the 

evidence is relevant. Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.—Houston 

[1st Dist.] 2003, pet. ref’d).

The extraneous offenses in this case bear striking similarities to the offense 

for which appellant was convicted. Both robberies were home invasions where the 

front door was kicked in and involved three African American males. One suspect 

in each robbery was wearing a red shirt and black hat, and one suspect in each 

robbery was wearing a white shirt. The suspect in the red shirt carried a small gun 

and appeared to be in charge, and in both robberies, a second suspect carried a gun. 

In both cases, someone was shot. The incidents occurred at neighboring apartment 

complexes and were reported to 911 eight minutes apart. Appellant was positively 

identified in both robberies. The bullets that killed Mauricio and were fired at 

Mitchell were fired from the same gun. Mitchell’s description of the vehicle 

fleeing the scene of the first robbery matched the vehicle found in the parking lot at 

the apartment complex where Mauricio was murdered. 

We conclude the evidence of the extraneous offenses admitted at trial was 

highly probative of appellant’s identity as the perpetrator and thus relevant to a fact 

of consequence in the case apart from its tendency to prove conduct in conformity 

with character. See Johnson, 68 S.W.3d at 650-51. We further conclude that the 

similarity of the specific characteristics of the offenses, the proximity of the 

locations, and the time interval between them show that the probative value of the 

extraneous offenses was not substantially outweighed by the danger of unfair 

prejudice. See id. at 651; see also Karnes v. State, 127 S.W.3d 184, 191 (Tex. 

App.—Fort Worth 2003, pet. ref’d) (“We conclude that the proximity in time and 

place of each offense, the common mode in which they were committed, and the 

circumstances surrounding the offenses were sufficiently similar to justify 
30

admission of the extraneous offense evidence on the issue of identity.”). 

Moreover, the facts of the extraneous offenses were interwoven with the 

investigation of Mauricio’s murder and necessary because there was no physical 

evidence linking appellant to the crime scene. See Johnson, 68 S.W.3d at 651-52 

(holding extraneous offense evidence was not unfairly prejudicial even though 

State had DNA evidence, fingerprints, and written and oral confessions). The 

extraneous offense evidence provided eye witness testimony and ballistic evidence 

inferentially linking appellant to the second robbery and murder. See id. 

Accordingly, the evidence was not unfairly prejudicial, and the trial court did not 

abuse its discretion in admitting the extraneous offense evidence. See id.

We overrule appellant’s fifth issue.

VI. No Jury Charge Error

In his sixth issue, appellant complains of the trial court’s failure to instruct 

the jury on the admissibility of the extraneous offenses to rebut appellant’s 

defensive theory. See Owens v. State, 827 S.W.2d 911, 917 (Tex. Crim. App. 

1992) (holding extraneous offense evidence was not admissible to rebut defensive 

theory because the defensive theory was not presented to the jury in the trial 

court’s limiting instruction).

Our first duty in analyzing a criminal jury charge issue is to decide whether 

error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); 

Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.] 2012, no 

pet.). If error is found, the degree of harm necessary for reversal depends on 

whether the appellant preserved the error by objecting to the complained of 

instruction. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); see also 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); 
31

Lovings, 376 S.W.3d at 337. If the defendant properly objected to the erroneous 

jury charge instruction, reversal is required if we find “some harm” to the 

defendant’s rights. Olivas, 202 S.W.3d at 144 n.21; Lovings, 376 S.W.3d at 337. If 

the error was not objected to, it must be “fundamental” and requires reversal only 

if it was so egregious and created such harm that the defendant “has not had a fair 

and impartial trial.” Barrios, 283 S.W.3d at 350; Lovings, 376 S.W.3d at 339.

At trial, defense counsel stated that he had no objections to the court’s 

charge. Therefore, appellant was required to show both that the trial court erred by 

failing to instruct the jury on the admissibility of extraneous offense evidence to 

rebut a defensive theory and that the trial court’s error caused him egregious harm. 

See Olivas, 202 S.W.3d at 144; see also Lovings, 376 S.W.3d at 337. 

Appellant’s sole defensive theory at trial was that he had been misidentified 

by the witnesses. Appellant cites Owens for the proposition that the trial court was 

required to submit a limiting instruction on his defensive theory. 827 S.W.2d 911. 

In that case, the State argued extraneous offense evidence was admissible to rebut 

the defendant’s implied theory of “frame-up.” Id. at 917. The Court of Criminal 

Appeals noted, “[E]xtraneous offense evidence of a defendant’s [modus operandi] 

is admissible only as proof of some other basis of admissibility [such as] identity

or lack of mistake.” Id. (emphasis added). Assuming the evidence was admissible, 

the court held that without a limiting instruction, “there [was] no way for an 

appellate court to know whether the jury properly applied the evidence of 

appellant’s [modus operandi] to rebut the weight or credibility of [the defendant’s] 

‘frame-up’ theory or relied on it for an improper basis such as character 

conformity.” Id. There was no dispute in Owens as to identity, motive, intent or 

any of the other exceptions listed in rule 404(b). Webb v. State, 36 S.W.3d 164, 

180 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Owens, 827 S.W.2d 
32

at 916).

Here, the trial court properly instructed the jury to consider the extraneous 

offense evidence only for the purposes allowed under Rule of Evidence 404(b), 

which included determining identity.27 See Blackwell v. State, 193 S.W.3d 1, 16 

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding trial court’s Rule 404(b) 

instruction that jury could consider extraneous offense evidence only “in 

determining the motive, opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident of the defendant” properly limited the jury’s 

reliance on the extraneous offense evidence to defensive issues that the defendant 

raised, specifically, his motive and intent to commit the offense). We conclude, 

therefore, that the trial court did not err. 

We overrule appellant’s sixth issue.

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Boyce, Jamison, and Busby.

Publish — TEX. R. APP. P. 47.2(b).

 

27 The jury charge reads: 

[I]f there is any evidence before you in this case regarding the defendant’s 

committing an alleged offense or offenses other than the offense alleged 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.

(Emphasis added.) See Tex. R. Evid. 404 (b).