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

NO. 03
- 19
- 00091
- CR

Ty Lee Whitfield, Appellant

v. The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR
- 16
- 0981, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury con victed app ellant Ty Lee Whitfield of the first

- de gree felony offense of aggravated r obbery. See Tex. P enal Code § 29.03. In one point of error , appellant contends that
the t rial court abused its discretion when it adm i t ted extraneous

- acts evi dence during the guilt/innocence phase of trial , see Tex. R. Evid. 404(b), and that this erro r was harmful

. For the following reaso ns , we affirm the judgment of conviction

.

BACKGROUN D The jury heard evi dence that , on August 2 , 201 6, John Moore was robbed in a n HEB parking lot in Buda, Texas

. A round 2:00 p.m. th a t day, Moore parked his Ford F

- 150 “ c lub

ca b ” tru ck away from other vehicles in the parking lot and the store entrance and, when h e was unloading his groceri es in the back seat on the pass enger side of his truck, a man approached him, put a small black hand gun in to his stomach , and de man ded his wallet. After the m an had2

taken Moore ’ s wallet , the man returned to his veh icle that was parked nearby and drove awa y
. Moore calle d 9

- 1

- 1 , and the poli ce responde d

. Based on surveillance video footage from the store and a nearby gas station a nd Moore ’ s descript ion of the man ’ s ve hicle , the poli c e determined that the vehicle w a s a black four

- do or 2010 Dodge Cali ber with a tempor ary d ealership license plate that had “ CUERO ” on the license plate frame

. The po lice ident ified the
vehicle ’ s ow ner to be Alejandr a Zaiontz , with who m appellant ha d been sta ying and who

rece ntly had rep orted the vehicle as stolen

. On Augus t 19, 2016 , t he poli ce arrested appel lant

a fter finding him in the Dodge Caliber at a Walm art parking lo t in San Ma rcos shortly afte r midnight

. A fter appellant ’ s arrest , an investig ating detective inte rview ed appellant who told the
detect ive that he h ad t aken the Dodge Cali b er from Zaiontz and had it for t en day s
. T he State subsequently indicted appellant for agg rava ted robbery of M oore
. 1

T he State ’ s case agai nst appella nt proceeded to a jury trial in February 201 9. The
State ’ s witnesses were Moore ; Cas ey Lopask y , a B uda P o lice D epartment detective wh o inve stigated t he robbery ; a Cuero Dodge deal ersh ip employee who sold the Dodge C ali ber t o Zaiontz in J uly 201 6 ; Zaiontz ’ s mo ther ; and Patrick Aubr y, the San Marcos P olice D epartment
officer who arrested ap pellant o n Augu st 1 9, 2016 , after finding him in the Dodge C ali ber in the
San Marcos W almart parking lot

. Zaiontz ’ s mot her confirmed that she knew appellant ,
test ifying that he was a fr iend who had been “ staying there ” “ at the house in the back ” with her daughter , bu t s he co u ld not identify him in court

. At t he time of trial, Zai ontz was in a nursi ng home recovering from a st roke and did not te stify at trial

.

1 The State also indicted appellant for credi t card abuse but d ropped this charge. See Tex . Penal Code § 32.31.3 In hi s testimon y, Moore described b eing robbed at gun point in th e HEB parking
lot

. He testified that his “ crew cab ” tru ck re quired the front d oor s to be open be f o re th e back
doo r s cou ld be o pened 2 and that he parked “ away ” from the ent rance to the store and other

v ehicles so that he could open the truck ’ s doors without “ banging somebody

. ” He was unload ing
hi s gro ceries in the back sea t w hen h e “ turned to get ano ther bag ou t of the cart , and [the man ]

was t here p utting a gun in [his ] stomach. ” He testified th at the man “ came up and stuck a gun in [his ] stomach and sa id, Give me your wall et. ” He desc ri bed the gun as bei ng small and b l ack

a nd f urther testified that t h e man asked for his wallet a “ second time ” while “ put[ting] the gun further in [his] stomach ” and asked for the PIN number to his ATM ca rd

. Moore ga ve the man
his w allet , which included a credit card an d AT M card , but he gave a phony number f or the PIN

. As t he man w as walking away , he said to Moore that , i f Moore did not give him the right number, he kn ew where Moore live d

. Moore descri bed the man wh o robbed him as b eing
Caucasian , “ rough ly a bout 5 ’ 9 , ” 5 ’ 10 , ” with a ro undish f ace, no speci al f

e ature s ” and “ [a]bout a

tw o
- day growth of bea rd , ” wea ring a gray short

- sleeved shir t and shorts, and the man ’ s ve hic le
as b eing a “ dark

- colored sedan ” with “ new vehicle dealer tag s ” that said “ C uero ” o n the fram e.
Moor e also tes tified that approximately fif te e n minutes after the robbery, his credit card was used without permission at a local gas stat ion.

Moore , however, was unabl e to identify appellant as the m a n who robb ed him. In his testimony, he confirme d tha t he h a d identified a different indivi dual who “ was close , ” “ ab out
75 percent ” to the man w ho rob bed him in a photo array conducted by law enforcement on Augu st 11, 201 6

. He also ackn owledged that he tol d th e district attorney that the man who

2 M oor e explained : “ It ’ s a club cab, whereby you have your

— the bigger mod els , all four doors open out. With the club cab , th e front

— the f ront doors open out. The back door, you hav e to open it from the in side

. ”4

r obbed him was yo u n ger with more ha ir than appellant

. Moore further testified that he “ was looking for tattoos on the out er part of the arms ” but di d not see “ any markings or anything ” on the man who ro bbed him , but the evid ence sh owed that appellant ha s tatto os on his up p er arm s, his elbows down to his forearm s , and a fin ger
.

Lopask y , the responding officer to the robber y, testifi ed t hat based on his rev iew

o f surveillanc e video footage from the HEB and the gas stat ion where Moore ’ s credit card was used “ right aft er ” the r obbery occurred , he identifie d the robber ’ s vehicle as a bla ck fo ur
- door Dodg e Caliber

. Lo pasky contacted the Cuero Dodge dealership , a nd th e dea lershi p had sold
Zaiontz a 2010 Dod ge C ali b er tha t recently had been reported sto len. The employee f rom the
C uero Dodge dealership tes tified that she s old the vehicle to Zaiontz in July 2 016 , that it was the only Dodge C aliber the dealership sold between June 13 and August 31, 2016 , and that Zaiontz reported that the vehicl e was stolen not long after the s ale. T he dealership employee also
identified the Dodge Caliber by it s VIN and a photo of a license plate frame with “ CUERO ” o n it
as b e ing from her dea lership

. She testified th at the temporar y “ paper tags ” coul d be on the

v ehicle “ up to 60 to 90 days

. ”

Aubry , t he officer who arrested a ppellant on August 19, 2 016 , test ified tha t when
he found appellant in the Dodge Cali ber in the Wal mart parking lot ar ound midnight , appellant
app eared to have been sleeping, that the vehicle ha d been reported s t olen , an d that t he

re sponding offi cers viewed a small , b lack hand gun “ [ o ] n the d river ’ s side floor board , protruding

o ut from underneath the driver ’ s seat

. ” In addition to the hand gun, other items tha t t he police
fo und inside the vehicle were ammu nition, a wallet th at cont a i ned Zaiontz ’ s driver ’ s license , and a receipt f rom a h otel in San Marcos f or lodging from Au gust 3 to 5, 2016.5 Over objection and after receiving a contemporaneous limiting instruction from
the t rial c ourt that the j ury could o nly conside r t he e vidence of an extran eous offens e with regard to identity , 3 t he jury also heard evi dence about a rob bery that appellant committed on August 5, 2016 , in the parking lot of a Sam ’ s Club in San Antonio (the Bex ar Cou nty robbery)

. See Tex. R. Evid. 404( b)(2 ). The State ’ s witnesses who testified about th at rob bery were the two

wom e n who were robbed , a San Antoni o P olice D e pa rt ment detective who responded to th e robbery, a forensic sc ientist who linked D NA evidence on a cap that fell off appellan t du ring the

com mission of that offense to appellant , and a sergeant /investiga tor with the Hays County
District Attorn ey ’ s office w ho te sti fied abou t the judgment s of co n viction in that case
.

The evidenc e concer ning that offense showed that “ around noontime ” on August 5 , 2 016, appe l l ant took the purses of the two women from the front seat of their For d
F

- 150 truck in the p arking lot and drove away in a four

- door Dodge Ca liber

. The women ’ s truck

was a n “ ext ended cab ” with the f ront and back doors open ing in opposite dire ctions and

r e q uir ing the front door to be opened before the back door could open. The women parked their
truck “ a li ttle bit far away from the entrance ” and “ where all the cars were there

. ” T hey were

3 T he trial co urt instructed the jury:

Lad i es and Gentlemen, the State intends to produce evidence

— or present evidence of events outside of this particular allegation; in other words, extraneous offenses. And I need to adm onish you

- all o r instruct you that you can onl y consider this testimony and evidence if you have a question with regards to the identity of the defendant, as to whether or not he actually committed this offense. And also, you have to, before you c an consid er the evidence , find beyond a reas onable doub t that the other offenses act u ally took place. In other words, you have the same burden of proof as to the extraneous offenses as you do to this particular one before you can consider that in your deliberation s as to the ide ntity of the perpetr ator in thi s particular matter.6

finishing unloading their groceries on the dr i ver side of the t ruc k w h e n appellant pulled his
vehic le into a parking sp ace close to the truck . Appellant got out, walked to the truck on the
passe nger s ide , an d took the women ’ s purses from the truck

. H e then h urried to his vehicle with
the women chasing a fter him

. He pu s h ed on e o f the women “ real l y far

. ” T he other wom a n was able to grab on to his vehicle as he was driving away , but she eventu al ly let go and fell onto the
g r ound in the pa rking lot , and he continued dri ving away
. One of the women was unable to pick

a nyone out of a photo arra y prepared by law enforc ement , but she descri bed the man who robbed
them as being whit e with fa cial hair . She esti mated the man ’ s he ight to be 5 ’ 7 , ” and she did not

n ot ice any distinctive ma rkings or tatto os on him

. The ot he r victim e s t im ated his height to be
5 ’ 8 , ” described him as wearing a T

- shirt and shorts and having a goatee , and did no t recall seeing

a ny tat toos. Both women described appellant ’ s veh icle as a b lack four

- door Dodge

. T he police
also fou nd one of t he wo men ’ s purses amon g the items in Zaiontz ’ s Dodge Caliber on Au gust 1 9, 2016

.

The State ’ s exhibits at trial included Moore ’ s 9

- 1

- 1 ca ll

. During t he call, Moore
describe d the four

- door veh i c le and the man who robbed him as white with facial gro wth and

w ea r ing a gray T

- s h irt

. Other exhibits were the surveillan ce v ideo footage of both r ob b er ies ; a recording of Lopasky ’ s inter view of appellant after he was arrested ; ph oto gra ph s of Zaiontz ’ s Dod ge Caliber and ite ms that the pol ice found in the vehicle, includi ng the black h a nd gun, ammunition, and a hol s ter ; physical evid en ce , including t he hand gun and the cap that fell off appel lant during the Bexar C ounty r obbery ; and t he j udgment s and ind ictment from the Bexar
Cou nty ro bbery

. The jud gments reflect that a pp el lant p le aded n o lo contendere to two counts of
agg ravated robbery with deadly weap on finding s based on the indictment alle gation that7

appellant used a moto r veh icle that “ in the ma nner of it s use and intended us e was c apable of

cau sing death and serious bod ily inju ry
. ”

T h e v ideo footage captures b oth robberies from a distance

. T he images of the
indi viduals involved are blurry

. As to t he robbery of Moor e , the v ideo captures a black four

door vehicle being driv en into the parking lot , cir c ling around, and then parking in a ne arby
sp ace as Moore wa s unloading his groceries on his truck ’ s passenger side with both doors on that
sid e ope n
. Moore ’ s truck was parked o ff to the s ide and aw ay from the store ’ s ent rance
. The

man who robbed Moore is seen lea ving hi s vehicle and wal k ing into the space between the front
and back door s on t he passe nger s ide of Moore ’ s truck , sta y ing there for a short time , and then

w alk i ng back to his vehicle and driving away

. Beca use the doors on the passe nger s ide of the
truck were open , the robbery itself is not seen on the video

.

In t he Bexar Cou nty r obbery, the video capt ures the same typ e of black four

- door
vehicle being driven i nto the parking lot, circling around, and then par king in a ne arby sp ace to
the wom en ’ s truck , which was parked off to t he side of the parking lot and a way from the st ore ’ s

e ntrance. The man who committed the rob bery is seen le av ing his vehicle , walk ing t o the truck on the passenger side, and then hu rriedly return in g to his v ehicle . The video also capt ures the

women foll o wing him to his vehicle , the man pus hing one of the women and then driving aw ay with the othe r wom a n holding on at the driver side windo w before falling onto the ground in the park ing lot with the man continu ing to d riv e away
.

I n its j ury charge , t he tr ia l c ourt includ ed the followi ng instruct ion as to evidence of other crimes or bad acts by appell ant:

During the trial, you heard evidenc e that the defendant may have committed wrongful or criminal acts not charged in th e indictment. T he state8

offered t he e v idence as proof of t he de fendant ’s identi ty. You are not to consider evid ence of such a wro ngful act at all unless you find, beyond a reaso nable doubt, that the defe ndant did, in fact, commit the wrongful act. Those of you who be li eve the defendant d id t he wrongf ul act may consi der it. Even if you do find that the d efendant committed a wrongful act, you may consider th is eviden ce only f or the limited purpose s I have de scribed. To consi der thi s evidence for any other p urpose would b e improper.

The ju r y f

o und appellant guilty , a nd pun i shment was to the trial court. After hearing additional ev idence , the trial court assessed punishment at confinement of fifty yea rs in the Texas Departm ent of Criminal Ju stice (Institutional Division )

. This ap peal follo w e d

.

ANALYSIS
In his s ole point of error, ap pellant complains about the admis sion of the e vide nce regarding the Bexar C ounty robbery during the guil t/innocence p hase o f trial

. A ppella nt

conte nds that the trial c our t ab used its dis cretion in allowing thi s extraneo us
- offe nse evidence
because the robberies were not “ uniquely simil ar to constitute [appellant] ’ s ‘ signature ’ ” ; that,
even if the y were, the pr obative value o f the evi de nce was substa ntia lly ou tweigh e d by th e d anger of unfai r prejudice ; and that t h e admission of the evid ence was harmful error
.

R ules of Eviden ce 403 and 404(b)

Appellant ’ s point of error concerns Texas Rule s of Ev id ence 403 and 40 4(b). Rule 403 p rovides that a tr ial court “ may ex clude relevant evidence i f i ts probative v alue is

su b stantially outwe igh ed by a danger o f

. . . unf air p rejudice. ” Tex. R. Ev id. 403; see also i d.
R. 401 ( stating test for relevant evid e n ce). And R ule 40 4(b) prov ides that e xtran eous
- offe nse evidence “ is not admissible to prove a pe rson ’s charact er in orde r to show that on a particular occasion the person acted in ac cordance with the ch a r acter. ” Id. R

. 404(b)(1).9

E xtran eous
- offense evide nc e , however, “ may be admi ssible for another purpos e , ” such as proving “ identity

. ” Id

. For e xt raneou s
- offense evidence to b e ad missible under bot h Rules 403
and 404(b) , it m ust s atisfy a two

- pronged test : (1) it must be relevant to a fact of con sequen ce in
the case aside from it s tendency t o sh ow that the defendant acted in conf ormity with chara cter, and (2) its pr obativ e value must not be substantiall y ou t we igh ed by unf air preju dic e. P age

v. S tate , 213 S.W.3d 332, 336 (Tex. Cri m. App. 2006)

.

“ Whether extraneous offense evid e nce has releva nce apart from character

co nformity, as required by R ule 404(b), is a question f o r the trial court. ” D evoe v. State , 354 S.W.3d 457, 469 (Tex. Cri m. App. 2011) (quoting Moses v. State , 105 S.W.3d 62 2, 627 (Tex. Crim. App. 2003))

. “ Thus, a t ria l court ’ s r uling on the admissibility of extraneous offenses
i s reviewed under an abuse

- of

- d i scretion standard. ” Id. (citing Prible v. State , 175 S.W.3d 724, 731 (Tex. Crim. App. 2005) ). “ As long as the trial court ’ s ruling is within the ‘ zone of

rea s ona ble disagre ement, ’ there is no abuse o f discretion, and the tria l court ’ s ruling will be
up h e ld. ” Id

. “ A trial c ourt ’ s 404(b) ruling admitting evidence is g enerally within this zone if
there is evide nce supporting th at an extraneous transaction is re l eva nt to a mat erial, non

propensity issue

. ” Id. (c iting Powell v. State , 63 S.W.3d 435, 438 ( T e x. Crim. App. 2001) )

.

We also review trial court rulings on R ule 403 grounds for abuse of discretio n , Pa wlak v. State , 420 S.W.3d 807, 810 (Tex. Crim. App. 201 3), afford i ng trial cour ts a high leve l
of defe rence regarding a dmissibility , s ee Rob i sheau x v . State , 483 S.W.3d 205, 218 (Tex. App.

— A ustin 2016, pet. ref ’ d)

. Th ough no t e xclusive, t he f actors that c ourt s balance w hen performing a Rule 403 analysis a re :10

(1) how prob ati ve the evidence is ; (2) the po tential of the e vid en ce to impress the j ury in so m e irrati onal , but never theless indelible wa y ; (3) the time the proponent needs to dev elop the evide nce; an d (4 ) the propo n ent ’ s need for the evide nce
.
Colo ne v. State , 573 S. W.3 d 249 , 266 (Tex. Crim. App. 2019) (citin g Shuffi eld v. State , 189 S.W.3d 782, 7 87 (Tex. Crim. App. 2006)) ; see Gigliobianco v. State , 210 S.W.3 d 637, 641

– 42 (Tex. Crim. App. 2006) ( stati n g fact ors t hat courts balan ce when performing Rule 403

a nalysis ) ; see also Davis v. State , 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining t h at

“ pr obative value ” refers to how str ongly evidence makes exi st ence of “ fact of consequence ”

“ mor e or less probable ” and to how much proponent needs evidence and th at “ un fair prejudice ” refers to how likely it is that eviden ce might result in decision ma d e on “ i mproper basis, ” including “ an emo tional one ” (quoting Cas ey v . State , 215 S.W.3d 870, 879 (Tex. Crim . App. 2007) ) )

. All evid ence is “ likely to be preju dicial to one party or th e other. ” Davis , 329 S.W.3d

at 806

. “ It is only when th ere exists a c l ear disparity betwe en t he de gree of prejudice of the
offered evid en ce and it s probative value that Rule 403 is applicable. ” Id. (citing Williams

v. State , 958 S.W.2d 186 , 196 (Tex. Cri m . App. 1997)).

A trial court ’ s rulin g to admit evid ence will be uph e ld provided that the trial

court ’ s decision “ is reasonab ly suppo rted by the record and is correct u nder any theory of l aw applicable to the case. ” Carrasco v . State , 154 S.W.3d 127, 129 (Tex. Crim. Ap p. 2005). Further, we will no t reverse a trial court ’ s erroneous admission of ev iden ce un less the error
affected the a ppellant ’ s substantial rights. See Tex. R. App. P. 44.2(b) ; Sandoval v. State , 409 S.W.3d 259 , 287 (Tex. App.

— Austin 20 13 , no pet. ) ( stat ing that “ erro n eous ad mission of
evidence is non

- con s t itutional error ” and that “ [ n ] on
- con stitutional error requires reversal on ly if it affects the substantial rights of the accused ” )

.11 Guided by th ese stand ards, we tu rn to appellant ’ s point of error.

Bexar C ounty Rob b e r y

In this case, the State offered th e ev ide nce regard ing the Bexar C ounty robbery to
prove identity

. For evidence of an extraneous offense to be adm issible to prove iden t ity “ by
comp aring common ch aracte ristics , ” the ext ran eous offens e “must be so simil ar to th e charged
offense that t he off

e nses illustrate the de fendant ’s ‘disti nctive and idiosyncratic manner of committing cr

iminal acts. ’ ” Page , 213 S.W.3d at 3 36 (quoting Martin v. State , 173 S.W.3 d 463, 468 (Tex. Crim. App. 2005)). “ [ T ] he the ory of re le vancy is usuall y that of mo dus opera n di in which the pattern and characteristics of the charged crime a nd the uncharged misconduct are so
distinctive ly similar that they constitute a ‘ signature. ’ ” Segundo v. S tate , 270 S.W.3d 79, 88 (Tex. Cr im. App. 200 8)

. “ No rigid rules dictate w hat cons t itutes sufficient similarities; rather,
the common characteristics ma y be proximity in time and place, mode of c ommission of the crimes, the person ’ s dress, or a ny other elements which mark both crimes as h avi ng been

com mitted by the same person. ” I d

. “ U sually, it is the accretion of small, s ometi mes individually insign if

icant, details that marks each crime as the handiwork or modus operandi of a single individu al. ” Id.

Ap pellan t contends that the trial court ab us ed its discretion by a dmitting the

e vi d ence re garding the Bexar County r ob bery be cause it “ only served to pr ov e character in conformity , that [appellan t] is a known robber, so therefore he must hav e c ommit ted the robbery
at hand. ” As support f

or this argu ment, appellant cites t he State ’ s clos i ng statements to the jury that:12

We know it ’ s him bec ause he has a s chtick. This is a thing he do es. He ’ s pra cticed it. He ’ s gotten it down . He did i t once , and he ’ s like, you know , [i] t works

. S o he goes and do es it again . You can consider that when you make your decisio n, that this is something that ’ s happened more t han once, and that we ’ re ce rta in that he ’ s the one tha t did it in S an Antonio.
Appellant a sks this Court to conclude that the Bexar County rob be ry “ was si mpl y a generic and fungible cr i me ” that was “ not indicative of a ‘ signature , ’ to permissibly show
id en tity under 404(b). ” Appellant argues tha t “ when co mparing and contrasting the two
aggrava ted robberies, there is nothing that ca n be gleaned to c onclude that the two offenses are

so u n iquely similar to const itute [appellant] ’ s signature. ” As s up port fo r this argument, a ppellant
focuses on discr epancies in the evidence abo ut the vehicle that w as i nvo lved in the respective
robber ies , the victims ’ “ extremely ge neric ” desc ription of the m a n who robb ed them “ especially when taking into account that [appellant] does actually have distinctive tattoos on his body to
identif y him , ” and other differences betwe en the robb eries , such as : (i) t he location of where they occurred

— i n d i f

f e r e n t c i t i e s ; (ii) the ti me of when they occurred

— on different day s ; (ii i ) the victim s

— the robbery in this case was against a m a n compared w ith the Bexar County robbery aga inst two women ; and (iv) the deadly weapon in this case w as a hand gu n compared
with the Bexar C o u nty robbery in which a ve h ic le w as the deadly weapon

.

Although the r obb eries were commit ted in two different ci ties

— Buda a nd San
An tonio , the cities are in the same geographic area , a nd the robber ies were aggrava ted and
in volv ed the use of deadly weapon s
. The rob beries a lso were committed within a few days of

eac h other w ith the same type of vehicle and around t he same time of day

— in broad daylight

— in a similar type of parking lot to a store , and the victims were robbed wh en th ey were in the process of u nloading their pu rchased goods into their trucks with cabs that requir ed the front and13

back doors to be opened

. See Segundo , 270 S.W.3d at 88 (explaining that “ n o rigid rules dictate

w hat constitutes s ufficient si milarities ” and that “ common characterist i cs may be proximity in time and place ” and “ mode of commission of the crimes ” ). The victims all des cribed the man a s b eing whi t e with facial hair ; one of t he women test ified that the man was wear ing a T

- shirt and
shorts ; in the 9

- 1

- 1 call, Moore describe d the ma n a s wearing a T

- sh irt , an d in his testimony,
Moore described the man as wearin g a short

- sleev e shirt and shorts ; and the women provided
estimate s of the man ’ s height that were w ithin a few inch es of Moore ’ s e stimate

. See id. (explaining that “ com m on charact eristics ” ma y include “ the person ’ s dress, or any other
el ements which mark both crimes as h aving been com mitted by the same person ” ). The video

re cording s capturing the two robber ies also show : (i ) the same type of black four

- door vehicle
bei n g driven in to the respec tive parking lot s , circling aro und, and then p arking in a ne arby sp ace to the victims ’ trucks with cabs ; (ii) a similar manner of the robber leaving and returning to his
vehicle ; and (ii i ) th e robbing of victims who chose parking s p ace s that we re in the peripher y of the respective s to re s ’ parking lots (and surveillance cameras)

. Given t hese similarities, w e

cann ot conclude that the trial court abused its discretion when it de ter mined that the evidence of

t he Bexar County ro bber y wa s re levant to the fact of identity

. See id

. ; P age , 213 S.W.3d at 336.

Appellant also arg ues that the danger of unfair prejudice substantially outweighed
the probative value of the evide nce
. See Tex. R. E vid. 40 3. Appellant argues that the “ onl y logi c a l link ” between the off enses was that the “ same vehicle, or a very similar vehicle, was in vo lved in both cases ” and cites : (i ) the “ great deal of time ” that the State s pent du ring t rial to
prove “ an inherently infl ammatory extra neous offense: ag gravated ro bbery by two female
victims who were very much affected by the offe nse ” when appella nt continued to drive off in
his veh icle after one of the victims fell onto the gro und ; (i i ) the State ’ s emphasis on the Bexar14

C ou nty robbery and the judgment s f rom that offense in closing argu ments ; and ( iii ) the State ’ s

o ther probative evidence to prov e identity in this case

. Appellant cites the evidence that he was
found in the stolen Dodge Cali ber that was used durin g the robber y at issue, the receipt that wa s f ound i n the vehicle from the h otel room in San M a rcos from Au gust 3 to 5, “ putting [him] in the area during the time frame of the aggrav ated robbery ” ; and other items found in the v ehicle, including Zaiontz ’ s wall et an d th e handgun tha t mat ched Moore ’ s descri pt i on of the ha ndgun
used in the robb ery against him

.

Appellant fu rther argues tha t th is Court should consider the admission of the judgment s in the B exar County robbery in a separate analysis under R ule 403 and that it was prejudicial and un ne ce s sa ry for the jury to know tha t he pled to f ifteen years in prison in the
Bexar Coun ty case when th e State had several wi tne sses to prove that he committed the Bexar
C ounty robbery

. He ar gues that “ the Court cannot objectivel y hold that the probative value of
the c ertified judgment confi rming [appe llant] ’ s guilt and fiftee n (15) year prison se n tence was not sub stantially outweighed by the dan ger of unf air p rejudice ” and that he “ had z ero chan ce of winning his case on the d efen sive is sue that [ app ellant] cou ld n ot b e positively identified when the ju ry was provided with affi rmative evi dence confi rming that [appellant] pled guilty to the
Bexar Cou nty case, and was convic ted and sentenced to prison for committing the offense. ” 4

A lthough the State called five witnesse s and spent a sig nifica nt amount of time on the Bexar County robber y , t he testimony fr om the women describing the robbery and the sergeant about the judgments was no t extensive , the State did not mention the length o f the

4 Appel l ant also objects to th e admission of the judgment s because they contain his

“ SID ” number and the jury ma y have been a ware that a n SID n umber can connote a p rior criminal history. He , however, did not raise this argu me nt with th e trial court and has not p r eserved it for our revi ew. See Te x. R. App. P. 33.1 (a )

.15

prison se ntence in its closing, an d the testimony from the detective w ho resp on ded to the robbery
and the fo rensic scienti st concerned the inves tigation a nd proce du res employed to link appellant

t o t he DNA evidence found on the cap , which by its natu re is t ime

- co nsuming and not em otional

. See Segundo , 270 S.W.3d at 90 ( observing that identification of DN A profi le that was matched with appellant “ requi re[ d] a long list of witnesses a nd a slow p lod through the pertinent scientific procedures ” and that evidence of “ unemotional sc i ence of DNA p rofiling and identification ”

“ wa s not evid ence that m ight lead t he ju ry into m aking an irrational or emot ional decision ” but

“ was calculated to result in a r ational decision based upon modern sc ience, genetic
fin ger printin g, and probabilities ” ).

Further , the State ’ s need for the evidence and the pro bative value of the evidence was high

. See Colon e , 573 S.W .3d at 266. I n thi s case , the determinative contest e d fact was the identity of the man who robbed Moore , and Moore was unable to id entify appellant

. In his testimony, Moor e confirmed that , in a photo arra y, he h ad identified a different individual whom

“ was close, ” “ about 75 percent ” to the man who robbed him and that he had told th e district attorney that he th ought the man who ro bbed him was y ounger w ith more hair than appellant

. Moore also did not see tatt oos or other markings o n appellant despite looking for th em , but appellant had the m
. And, as d escribe d above, t he evidence showed that there were sufficien t

“ common characteristics ” “ to mark both crimes as being committ ed by the same person, ” see Segundo , 270 S.W.3d at 88, and that appellant had committed the Bexar C ounty robbery.

Balancing the factors , we cannot conclude that the trial court abused its d iscretion
in ad mitting the evidence of th e Bexar County r obber y including the judgme nts for t he lim ited
purpose o f identity

. See Devoe , 354 S .W.3d at 469; see also Colo ne , 573 S.W.3 d at 266

. On this
ba sis , w e overrule appellant ’ s point of er ror
.16 CONCL USION Having o verruled appellant ’ s point o f error, we affirm the judgmen t of conv ict ion

.

_________________________ ____________ _____ Mel issa Goodw in , J ustice
Before Justices Goodwi n , Baker, and Kelly
Affirmed
Filed: February 10, 2021
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