No. 01-14-00902-CR

In the 

Court of Appeals

For the 

First District of Texas

At Houston

♦

No. 1399343

In the 230th District Court

Of Harris County, Texas

♦

KENNETH ALLEN ROSS

Appellant

v.

THE STATE OF TEXAS

Appellee

♦

State’s Appellate Brief

♦

Clinton A. Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1201 Franklin St., Suite 600

Houston, Texas 77006

Telephone: 713.755.5826

Devon Anderson

District Attorney

Harris County, Texas

Sarah Roberts

Lisa Calligan

Assistant District Attorneys

Harris County, Texas

Oral Argument Not Requested

ACCEPTED

01-14-00902-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/30/2015 1:55:26 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/30/2015 1:55:26 PM CHRISTOPHER A. PRINE Clerk
Statement Regarding Oral Argument

The appellant requested oral argument, though he gave no 

particular reason why. The State believes that the briefs in this case 

adequately apprise this Court of the issues and the law, and any 

marginal benefit from oral argument does not justify the considerable 

amount of time that preparation for oral argument requires of the 

parties and the Court. The State does not request oral argument.

i
Identification of the Parties

Counsel for the State:

Devon Anderson 

 District Attorney of Harris County

Sarah Roberts & Lisa Calligan

— Assistant District Attorneys at trial

Clinton A. Morgan

 Assistant District Attorney on appeal

Appellant:

Kenneth Allen Ross

Counsel for the Appellant:

Danny Easterling

— Counsel at trial

Mandy Miller

— Counsel on appeal

Trial Judges:

Brad Hart

 Presiding judges

ii
Table of Contents

Statement Regarding Oral Argument .................................................i

Identification of the Parties .............................................................. ii

Table of Contents ................................................................................ iii

Index of Authorities .............................................................................v

Statement of the Case ..........................................................................1

Statement of Facts ................................................................................1

Summary of the Argument..................................................................3

Reply to Point One ................................................................................4

Strong modus-operandi evidence from two other robberies 

committed by the appellant, combined with a tentative eyewitness 

identification, are sufficient to allow a rational factfinder to find, 

beyond a reasonable doubt, that the appellant committed a third 

robbery that was introduced as an extraneous offense in the 

punishment phase. ......................................................................................................4

I. Trial Proceedings............................................................................................4

A. The June 21st Robbery..............................................................................4

B. The Appellant’s Request to Strike.......................................................6

C. The June 3rd Robbery................................................................................8

II. Standard of Review: A trial court’s decision to admit evidence 

of an extraneous offense in the punishment phase is reviewed only 

for an abuse of discretion.....................................................................................9

III. Argument........................................................................................................ 10

A. The evidence at trial was sufficient to show, beyond a 

reasonable doubt, that the appellant committed the June 21st

robbery.................................................................................................................. 10

B. Even if the trial court erred, the repeated instructions to the 

jury to disregard any extraneous offense not proven beyond a 

reasonable doubt cured the error. ............................................................ 13

Conclusion .......................................................................................... 16

iii
Certificate of Compliance and Service........................................... 17

Appendix:State’s Exhibits 28 & 57

iv
Index of Authorities

Cases

Apolinar v. State

106 S.W.3d 407 (Tex. App.—

Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 

2005).............................................................................................................................. 14

Colburn v. State

966 S.W.2d 511 (Tex. Crim. App. 1998)........................................................... 14

Martin v. State

173 S.W.3d 463 (Tex. Crim. App. 2005)........................................................... 11

Page v. State

213 S.W.3d 332 (Tex. Crim. App. 2006)........................................................... 10

Thompson v. State

4 S.W.3d 884 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d)....................................................................7

Statutes

TEX. CODE CRIM. PROC. art. 37.07................................................................................. 10

Rules

TEX. R. APP. P. 44.2........................................................................................................... 14

v
Statement of the Case

The appellant was indicted for aggravated robbery. (CR 25). The 

indictment alleged two prior felony convictions, with one of the felonies 

having been committed after the conviction for the other became final. 

(CR 25). A jury found him guilty as charged. (CR 98, 113). The State 

abandoned one of the enhancement allegations; the jury found the other 

allegation true and assessed punishment at forty years’ confinement and 

a $5,000 fine. (CR 111). The appellant filed a timely notice of appeal and 

the trial court certified his right of appeal. (CR 116, 118).

Statement of Facts

On August 26, 2013, near closing time at a Family Dollar store in 

west Houston, a man in a hoodie, a black cap, and black-framed glasses

approached a store employee, Jaymil Johnson, and asked where the air 

fresheners were. (3 RR 23, 112; 4 RR 19). The man walked away from 

Johnson, but rather than buying air fresheners he lingered in the store 

past closing time. (3 RR 24). When Johnson next saw him, the man 

brandished a pistol and instructed Johnson to “be cool” and not to make 

any noise. (3 RR 24-25). The man walked Johnson to another aisle 

where the other two store employees were, and then took all three 

1
employees into the back of the store and had them set their cell phones 

on a box. (3 RR 26-27; 4 RR 24-25).

The man forced two of the employees into a bathroom, but 

instructed the store manager, Maheshkumar Desai, to take him to the 

store’s safe. (3 RR 101-04). Desai did as instructed. (3 RR 104-05). After 

Desai entered the combination, though, he informed the man that the 

safe had a time delay and would not open for several minutes after the 

combination was entered. (3 RR 105). The man then began talking to 

someone on his cell phone, advising that the safe would take 10-15 

minutes to open. (3 RR 106).

The man walked Desai to the back of the store, where he noticed 

that one of the employees’ cell phones was no longer sitting on the box. 

(3 RR 106). The man asked which of them had called the police, but no 

one admitted to having done so. (3 RR 107). The man then took Desai 

back to the front of the store where he had him empty the cash registers 

into a plastic bag. (3 RR 107). The bag also contained some air 

fresheners. (3 RR 107). The man forced the employees back into the 

bathroom, and from there they heard the store alarm sound from the 

opening of the emergency exit in the back of the store. (3 RR 108).

2
Houston Police Officer James Swank was dispatched to a report of 

a robbery in progress at the Family Dollar. (3 RR 88-89). He was the 

second officer to arrive on the scene; when he learned that the first 

officer was in the front of the store, Swank went to the back. (3 RR 94). 

He observed a man with a black hat and grey hoodie running away from 

the store. (3 RR 96, 100). When Swank shone his spotlight on the man, 

he dropped a cell phone and a plastic Family Dollar bag and immediately 

sat down. (3 RR 98, 211). The plastic bag contained cash, rolls of coins, 

and air fresheners. (3 RR 256-57). Next to the bag was a black 

semiautomatic pistol. (3 RR 257). The man was identified as the 

appellant. (3 RR 266). The appellant was taken back to the store and 

Johnson identified him as the robber. (3 RR 274). 

Summary of the Argument

The appellant raises no challenges to his conviction. His sole point 

relates to evidence of an extraneous robbery that was admitted during 

the punishment phase. He argues that the evidence was inadmissible 

because the State did not prove the offense beyond a reasonable doubt. 

The State believes that the similarities between that robbery, another 

extraneous robbery, and the charged offense, combined with a tentative 

3
eyewitness identification from the complained-of robbery is sufficient to 

allow a finding, beyond a reasonable doubt, that the appellant 

committed the complained-of robbery.

Reply to Point One

Strong modus-operandi evidence from two other robberies 

committed by the appellant, combined with a tentative eyewitness 

identification, are sufficient to allow a rational factfinder to find, 

beyond a reasonable doubt, that the appellant committed a third 

robbery that was introduced as an extraneous offense in the 

punishment phase. 

I. Trial Proceedings

A. The June 21st Robbery

In the punishment phase, the State called two witnesses to testify 

about a robbery that occurred on June 21, 2013, at a Family Dollar store 

in southwest Houston. Kierra Pipkin was a cashier working the closing 

shift that night. (7 RR 34). The store closed at 10:00 pm, but the 

employees had locked the doors early because no one was in the store.

(7 RR 36). At 9:40, a man beat on the doors until Pipkin let him in. (7 RR 

36). He said he needed worm pills for his dog, but when Pipkin said they 

did not sell those he asked for the baby wipes. (7 RR 36). Pipkin directed 

the man to the baby wipes and then walked away to resume cleaning up 

the store. (7 RR 36). 

4
Sometime later, the man approached Pipkin and brandished a 

revolver. (7 RR 38-39). The man directed Pipkin and the store’s assistant 

manager, Shondria Laymond, to a different aisle and had them lie on the 

ground. (7 RR 40). The man asked who the manager was, and when 

Laymond spoke up he forced her to go open the door and let in a second 

man. (7 RR 40-41). This second man was taller; he wore a dark cap with 

a white symbol on it and glasses. (7 RR 41-42, 85-86; State’s Ex. 57). The 

second man was also talking on the phone to someone named “Frank.” 

(7 RR 43). After he entered the store, the second man brandished a 

semiautomatic pistol. (7 RR 44). It was apparent that the second man 

was in charge. (7 RR 45).

The second man asked Laymond what the code to the safe was, 

but Laymond advised that the safe had a timer on it. (7 RR 46). Laymond 

entered the code into the safe, and while they waited on it to open the 

second man forced her to empty the cash registers into a plastic store 

bag. (7 RR 71-73). Once the safe opened, he made Laymond empty it

into a store bag as well. (7 RR 73). The man also made her put several 

boxes of cigarettes in the bags. (7 RR 72-73). 

The robbers made the employees lay on the ground again, and 

then asked where the back door was. (7 RR 73). The second man told 

5
whoever he was talking with on the phone to drive around the back of 

the store and pick them up. (7 RR 73-74). However, the person on the 

other end of the phone advised that there were people behind the store, 

so the robbers left through the front door. (7 RR 74-75). Before leaving, 

they advised the employees to wait ten minutes before calling the police, 

or else they would return and shoot them. (7 RR 75). 

After the robbery, Laymond was shown a photo lineup; she said 

that she was 70% sure that the second man in the robbery was the 

appellant. (7 RR 85-86, 96, 111). At trial, the State introduced security 

footage of the robbery, as well as a few screenshots taken from that 

video. (State’s Exs. 57, 59). 

B. The Appellant’s Request to Strike

After the State admitted all of its evidence regarding the June 21st

robbery, defense counsel approached the trial court and asked for the 

jury to be instructed to disregard it. (7 RR 114-15). The appellant 

argued that the State’s evidence was not sufficient to show, beyond a 

reasonable doubt, that the appellant committed that robbery, and 

therefore it was inadmissible in the punishment phase. (7 RR 114-15); 

see Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st Dist.] 

6
1999, pet. ref’d) (“The trial court must first determine that the evidence 

is relevant and that the jury could reasonably find beyond a reasonable 

doubt that the defendant committed the extraneous offense.”). 

The State replied that, combined with Laymond’s 70% 

identification, the similarities between the charged offense and the June 

21st robbery would allow the jury to find that the appellant committed 

both crimes. First, the State noted, the robber in both cases seemed to 

be wearing a “similar hat” 1 in both robberies. (7 RR 115-16). Moreover, 

the methods used in both robberies were strikingly similar:

[T]hat it is the Family Dollar, that it was closing time, that he 

was on the cell phone. He knew about the safe, asking for 

the manager, not touching anything. And ... asking them to 

go to the back door. Wanting to leave out of the back door, 

but they just couldn’t in this specific situation. And the fact 

that he was on the phone with another person apparently 

outside the store.

(7 RR 116-17).

1 The cap recovered from the scene of the charged offense was admitted into 

evidence as State’s Exhibit 28, and it is currently in the custody of the Harris County 

District Clerk. The State’s appellate counsel went to the clerk’s office to view the cap. 

In an appendix to this brief, the State’s appellate counsel has included a photograph 

of the cap placed, for comparison purposes, next to screenshots of the second robber 

in the June 21st robbery that were admitted as part of State’s Exhibit 57. The 

distinctive kangaroo logo on the cap appears very similar to the logo on the cap 

worn by the robber. The similarity is even stronger when the cap is compared to the 

color surveillance video in State’s Exhibit 59. 

7

 
The trial court was initially skeptical of the State’s argument and 

signaled its intention to grant the appellant’s motion. (7 RR 119). 

However, after taking a break the trial court announced that it would 

deny the appellant’s motion but would verbally instruct the jury that it 

could only consider evidence of the extraneous robbery if it the evidence 

proved, beyond a reasonable doubt, that the appellant committed it. (7 

RR 121-22; see CR 106 (providing same instruction in jury chare)). 

C. The June 3rd Robbery

The next witness was Crespin Guerrero, who used to work at a 

Dollar Tree in Webster. (7 RR 125). On June 3, 2013, Guerrero was the 

assistant manager working the night shift. (7 RR 127). After locking the 

store at closing time, Guerrero walked outside the store to put 

something in his truck. (7 RR 127-28). He heard something behind him, 

and when he turned around he saw a man holding a gun; the gunman 

advised Guerrero not to run or he would shoot. (7 RR 128).

The gunman forced Guerrero to unlock the store and the two of 

them went inside, along with a third person who was with the gunman 

but who Guerrero did not get a good look at. (7 RR 129-30). Once in the 

store, the gunman forced Guerrero and the other Dollar Tree employee 

8
to go to the store’s office and open the safe. (7 RR 132). Guerrero 

complied; this safe did not have a timer on it so he was able to open it 

right away. (7 RR 133). The gunman made Guerrero pick up the money 

and put it into a backpack. (7 RR 133-34). After that, the gunman made 

Guerrero and the other employee get on the ground, and he sat their cell 

phones outside of the office. (7 RR 134). The robbers then left. (7 RR 

135).

Guerrero later identified the appellant as the gunman. (7 RR 142). 

During the robbery, the appellant was wearing a gray hoodie, a black 

cap, and glasses. (7 RR 130). Guerrero said that State’s Exhibit 28, the 

cap recovered from the scene of the charged offense, was similar to the 

hat the appellant wore during the robbery, and the gun recovered from 

the scene of the charged offense was similar to the gun the appellant 

used. (7 RR 140-41). 

II. Standard of Review: A trial court’s decision to admit 

evidence of an extraneous offense in the punishment 

phase is reviewed only for an abuse of discretion.

In the punishment phase of a trial, the State may offer “evidence of 

an extraneous crime or bad act that is shown beyond a reasonable doubt 

by evidence to have been committed by the defendant or for which he 

9
could be held criminally responsible ...” TEX. CODE CRIM. PROC. art. 

37.07 § 3(a). Appellate courts do not review the evidence of an 

extraneous offense for sufficiency; rather, the question on appeal is 

whether the trial court abused its discretion in admitting the evidence. 

Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.] 

2011, pet. ref’d). Though the State can find no case explicitly stating as 

much, under this standard of review the relevant question on appeal is: 

“Did the trial court abuse its discretion in determining that the evidence 

was sufficient?” 

III. Argument

A. The evidence at trial was sufficient to show, beyond a 

reasonable doubt, that the appellant committed the 

June 21st robbery.

The State’s argument (at trial and on appeal) involves applying the 

“modus operandi” doctrine in an uncommon way. Typically, the way that 

modus operandi arises is that the State will offer evidence of extraneous 

offenses that were committed in distinctive ways in order to prove that 

it was the defendant who committed the charged offense. See, e.g., Page 

v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (discussing use of 

extraneous offenses to prove identity). Here, however, because it is the 

10
sufficiency of the evidence to prove the extraneous offense that is at 

issue, the State’s argument uses the charged offense to prove identity. In 

either case, the relevant question is whether the crimes are sufficiently 

distinctive as to allow a conclusion that whoever committed one 

committed the others. See Martin v. State, 173 S.W.3d 463, 468 (Tex.

Crim. App. 2005). The State believes that the similarities between the 

June 21st robbery and the other two robberies, combined with 

Laymond’s “70%” identification, support the trial court’s determination 

that a rational factfinder could have concluded that the appellant 

committed the June 21st robbery. See Davis v. State, 180 S.W.3d 277, 285 

(Tex. App.—Texarkana 2005, no pet.) (considering modus operandi 

evidence as part of sufficiency analysis). 

The similarities between the robberies are striking:

• The three robberies occurred within a three-month period, 

making it possible they were all committed by the same people.

All three occurred within Harris County. 

• All three were of the same type of store: Two Family Dollar Stores 

and a Dollar General.

• All three robberies occurred at or near closing time. 

• All three robberies involved forcing the store manager to open the 

store’s safe and place the money in a bag. In none of the robberies 

did the robber himself touch the safe or the money.

11
• In all three robberies the relevant robber was described in similar 

terms: A black man around or slightly shorter than six feet tall 

with a large build wearing a dark cap and glasses. This robber was 

always described as wielding a semiautomatic pistol.

• In two of the robberies (June 21st and August 26th) the relevant 

robber was on a cell phone during the robbery communicating 

with the presumed getaway driver.

• In two of the robberies (June 3rd and August 26th) the robber made 

the victims give him their cell phones for a period of time, but he 

did not steal them.

• In two of the robberies (June 21st and August 26th) the robber took 

seemingly random items — air fresheners in one instance, and 

cigarettes and baby wipes in the other. 

• In two of the robberies (June 3rd and June 21st) there was an 

accomplice present who was shorter than the relevant robber and 

who was taking commands from the relevant robber.

• In the August 26th robbery the robber was described as wearing 

glasses with black frames. Though it is not apparent in the blackand-white screenshots of State’s Exhibit 57, in the color

surveillance footage of the June 21st robbery (State’s Exhibit 59), 

the relevant robber clearly is wearing glasses with black frames.

• Additionally, comparing the color footage on State’s Exhibit 59 to 

State’s Exhibit 28 (the cap) shows that the relevant robber in the 

June 21st robbery wore a cap that was identical to the cap 

recovered from the August 26th robbery. Specifically, on the 

camera angle looking at the door, where the footage is 

timestamped 21:49:17 and 21:49:18, the shape of a kangaroo, the 

same as is on State’s Exhibit 28, is plainly visible on the robber’s 

cap. (See also Appendix). 

In sum, the State’s evidence showed that the appellant had a 

penchant for robbing a certain type of store in a certain way while 

12
wearing a certain type of attire. The witnesses to the June 21st robbery 

described a man similar to the appellant committing a robbery at a 

similar store as those the appellant like to rob in a manner similar to 

how the appellant committed his robberies. One of the witnesses to the 

June 21st robbery (who was not privy to the details of the other 

robberies) picked out the appellant from a photo lineup and said she 

was “70%” sure that he was one of the robbers. From the combined 

logical force of these facts, the trial court was, at least, within the zone of 

reasonable disagreement to conclude that a rational factfinder could 

have found the appellant guilty of the June 21st robbery beyond a 

reasonable doubt. Thus the trial court did not abuse its discretion in 

declining to instruct the jury to disregard the evidence of that robbery.

B. Even if the trial court erred, the repeated 

instructions to the jury to disregard any extraneous 

offense not proven beyond a reasonable doubt cured 

the error.

The erroneous admission of an extraneous offense in the 

punishment phase of a trial is subject to the non-constitutional harm 

test found in Rule of Appellate Procedure 44.2(b) and should not result 

in reversal unless it had a substantial or injurious effect on the jury’s 

verdict. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—Houston [1st 

13
Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 2005); Roethel v. 

State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.); see TEX. R.

APP. P. 44.2(b). 

The jury in this case was twice instructed that it was not to 

consider the evidence of extraneous offenses unless it believed, beyond 

a reasonable doubt, that the appellant was criminally responsible for 

them. (7 RR 121-22; CR 106). One of these instructions came 

immediately after the State concluded its evidence of the June 21st

robbery, which should have made the point abundantly clear to the jury. 

Appellate courts presume that juries follow the instructions as 

given. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). That 

presumption is rebuttable, but there is no evidence in this case 

suggesting that the jury disregarded the instructions. Indeed, 

disregarding the instructions in this case would involve the jury 

increasing the appellant’s sentence for an offense it did not believe he 

committed, which, even without an instruction, would be passingly 

strange behavior.

The State’s punishment evidence, even excluding the June 21st

robbery, was strong enough to warrant the appellant’s punishment: The 

evidence for the June 3rd robbery was quite strong, and the State 

14
admitted evidence of numerous prior convictions, including one for a 

robbery. (7 RR 202-04 (prosecutor summarizing prior convictions); 

State’s Exs. 40-42; 45-56). Given the general nature of a punishment 

verdict, the adequate evidence showing that the appellant deserved a 

harsh punishment, and, most importantly, the trial court’s repeated 

instructions to the jury not to use evidence of the June 21st robbery 

unless it believed, beyond a reasonable doubt, that the appellant was 

one of the robbers, there is no reason to believe that the June 21st

robbery had a substantial effect on the jury’s verdict if they did not 

believe, beyond a reasonable doubt, that the appellant was one of the 

robbers. Accordingly, any error by the trial court does not warrant 

reversal. 

15
Conclusion

The State respectfully submits that all things are regular and the 

judgment of the trial court should be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

713.755.5826

Texas Bar No. 24071454

16
Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word counting 

function, the portion of this brief for which Rule of Appellate Procedure 

9.4(i)(1) requires a word count contains 3,320 words.

I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

Mandy Miller

mandy@mandymillerlegal.com

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

Texas Bar No. 24071454

Date: June 30, 2015

17
Appendix: 

State’s Exhibits 28 & 57