AFFIRMED and Opinion Filed December 6, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00506-CR TEMMIE COOLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82809-2014



### MEMORANDUM OPINION Before Justices Bridges, F rancis, and Lang-Miers Opinion by Justice Francis This is a cold case prosecution in which the jury convicted Tem mie Cooley of the decadesold murder of a co-worker with whom he was having an affair. T he trial court assessed punishment at eighty years in prison. In a single issue, appellant conten ds the trial court abused its discretion by allowing evidence of a 2001 murder conviction as proof of id entity in this case. For the reasons set out below, we affirm. On the night of November 24, 1989, Sharon Trimble told her husb and she was going to visit a friend, left her children in the care of a babysitter, and left the house in her car at about 10:15 p.m. When Trimble had not returned home by 4 a.m., her h usband began to worry. He called family members and frie nds and ultimately filed a missin g person report with the police.–2– Several hours later, at about 11:30 a.m., Trimble’s body was fo und in a ditch on the side of a dirt road in an undeveloped area of Plano. Trimble was nu de from the waist down, her brassiere was pushed up, and her sweater w as draped around her, with one arm in the sweater and one arm out. Her boots were near her head, and she was still w earing jewelry. Neither her purse nor car were at the scene. Invest igators believed the crime in volved a sexual component. Collin County Medical Examiner William Rohr performed an auto psy the same day. He determined that Trimble died by ligature strangulation, which h e said is a “disti nctly uncommon” cause of death. In addition to t he neck injury, Rohr said ther e were recent bruises on the upper chest, some bruising and faint a brasion of the jaw area, and br uising underneath the lip and on the tongue, suggesting “some type” of blow from being punched or ha ving fallen and hit her face. There were no defensive wounds on her body, leading police to b elieve she was t aken by surprise or knew the person and was not a fraid to let him get close enou gh to get behind her and put something around her neck. Among other things, Rohr collected a sexual assault kit, which included oral, vaginal, and an al swabs. The technology did not exist in 1989 to develop a DNA profile, but a serologist testifi ed that sperm was detected on vaginal and anal smears, confirming suspicions of a sexual element to the crime. Two days after the body was found, investigators went to the h ospital where Trimble worked and talked with her co-workers, one of whom was appellan t. Trimble’s coworkers said she primarily hung out with appella nt, let him drive her car, a nd described him as her “best friend.” One co-worker told investigator s that Trimble and appellant wer e having a sexual relationship, but, in multiple interviews, appellant denied it. He also prov ided an alibi for his whereabouts on the night of Trimble’s death; h e said he was helping his pregna nt girlfriend move. Police did not discover where Trim ble had been on the night of her death. Her car was found abandoned in an apartment complex about two weeks later w ithin four miles of where–3– appellant’s residence at the time; it had been “wiped clean.” The apartment complex manager who reported the abandoned vehicle told police she had seen two men driving the car before they left it in the parking lot. Although police were suspicious of appe llant because of the conflicting information they received, no arrest was made. Fourteen years later, in 2003, cold case investigator Billy Me eks of the Plano Police Department began looking at the Trimble case again. Meeks re-i nterviewed witnesses and looked at the case file. By that time, DNA technology was more advanc ed, and he sent samples collected at the time of Trimble’s death to a DNA laboratory, where a for ensic analyst developed a DNA profile from the vaginal and anal swabs. That profile was ente red into the Texas CODIS 1 computer database and received a “hit” showing a match to appellant who was facing a pending murder case in Kaufman County. In February 2004, Meek s interviewed appell ant while he was inc arcerated in the Kaufman County Jail as a suspect in the m urder of Earlene Warrell. War rell was found on the side of a county road in a rural area in December 2001; she, too, died by ligature strangulation. During this interview, appellant again denied ever having sexual intercours e with Trimble but said she had performed oral sex on him. He also changed his alibi: in 1989 , he said he was helping his pregnant girlfriend move on the night Tri mble died; in 2004, he said his girlfriend (who he later married) was not pregnant but that he was e ither with his girlfriend or another co-worker, Earl Perkins. Meeks interviewed appellant a second time four months later and told him about the DNA results. After learning of the results, appellant admitted to having an ongoing sexual relationship with Trimble, including sex on the day she died. Meeks’s investigat ion did not result in a prosecution. In early 2014, Detective Beth Spillman took over the case. Spi llman located all the files, reviewed the documents and lab reports, and re-interviewed witn esses. Spillman believed that

1 CODIS is the acronym for Combined DNA Index System.–4– because Trimble was nude when her body was found dumped on a co unty road, there was a sexual component to the crime. She saw that a DNA profile had been de veloped and a match obtained from CODIS. Spillman took a DNA sample from appellant to confi rm the previous DNA match and interviewed him twice. Appell ant denied that he ever denie d having a sexual relationship with Trimble in 1989. He also said the last time he had sex with Tr imble was either the weekend or the Monday prior to her death on Friday night, not on the day she d ied, as he had told Meeks. Appellant’s DNA sample was sent to a lab for testing. The lab concluded appellant could not be excluded as a contributor to the DNA profile in Trimble’s vagin al swabs, and the DNA profile in her anal swabs originated from appellant. Appellant was indicted in December 2014 for Trimble’s murder. In November 2016, a pretrial hearing was held to dete rmine whether appellant’s conv iction for the murder of Earlene Warrell was admissible. At this hearing, former Texas Ranger R ichard Shiang and Spillman testified about the similarities between the murders of Trimble and Warrell. Shiang assisted in the investigation of Warrell’s murder. Her body was found off a rural road in Kaufman County on December 20, 2001. She was nude, par tially wrapped in bed linens, and was still wearing her jewelry. An autopsy showed she died of ligature strangulation. Appellant’s DNA was found underneath her fingernails. Shiang learned appellant and Warrell previously worked together and that she told a friend they were involved in a “romantic relationship.” But when they questioned appellant, who was married, he initially claimed t hey were just friends. Later, h e confessed to strangling her with the strap of her purse. Appellant said he was with Warrell in her car parked across the street from his apartment discussing their rela tionship. At one point, he trie d to leave but she followed him and he thought she was going to wake his wife. Appellant became ag itated, and he choked her with the strap of her purse. He wra pped her body in a sheet and dum ped it on the side of a road. He–5– said he left her car at a nearby service station hoping someone would steal it. The car was found in a parking lot within four miles of where appellant lived; it was “damaged, wrecked, and on fire.” The State argued the evidence was admissible to provide identit y in Trimble’s murder because the circumstances of the two crimes were so substantial ly similar as to show appellant’s “signature” or “handiwork.” The trial court, however, excluded the evidence. The trial ended in a mistrial when the jury coul d not reach a unanimous verdict. Appellant’s second trial was set for April 2017 before a newly elected judge. Prior to this trial, the judge reviewed the testimony and evidence presented at the November 2016 pretrial hearing and, over appellant’s objection, ruled that evidence of Warrell’s murder was admissible for the limited purpose of proving identity. Before the eviden ce was admitted, the trial court gave the jury a limiting instruction. T his trial ended in appellant ’s conviction. In his sole issue, appellant contends the trial court abused it s discretion by admitting evidence of Warrell’s murder because the evidence was not admis sible to show identity and its probative value was substantially outweighed by unfair prejudic e in violation of Texas Rules of Evidence 403 and 404(b). We review a trial court’s deci sion to admit evidence concernin g an extraneous offense for an abuse of discretion. Page v. State , 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). As long as the trial court’s ruling is within t he “zone of reasonable disagree ment,” the court does not abuse its discretion, and we will uphold the ruling. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Evidence of extraneous offenses is not admissible to prove tha t a defendant acted in conformity with a bad character. See T EX

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. 404(b). An extraneous offense, however, may be admissible to show identity when identity is at issue in the case. Page , 137 S.W.3d at 336. Identity may be placed in dispute by a defendant’s opening stat ement or cross-examination, as well–6– as by affirmative evidence offered by the defense. Segundo v. State , 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). Raising identity does not automatically render evidence of ext raneous offenses admissible. See Page v. State , 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State , 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). When the extraneous offense is int roduced 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 manne r of committing criminal acts.” Page , 213 S.W.3d at 336. In other words, the theory of relevancy i s usually that of modus operandi in which the pattern and characteristics of the charged crime a nd the uncharged misconduct are so distinctively similar that they constitute a “signature.” Segundo , 270 S.W.3d at 88. “Usually, it is the accretion of small, sometimes individually insignificant, d etails that marks each crime as the handiwork or modus operandi of a single individual.” Id. There are no rigid ru les dictating what constitutes sufficient similari ties; rather, the common charact eristics may be proximity in time and place, mode of commission of the crimes, the person’s dress, or any other elements which mark both crimes as having been committed by the same person. Id . If the similarities are generic, or typical to this type of crime , they will not constitute a “sign ature” crime. Id

. Here, we conclude the mode of committing the offenses and the circumstances surrounding the offenses are sufficiently similar for Warrell’s murder to b e relevant to the issue of identity in Trimble’s case. Both were adult females; both were involved in a romantic/sexual relationship with appellant at the time of their deaths; in each case, one o f the parties was involved in an extramarital affair (Trimble was married when she was murdered , and appellant was married when Warrell was murdered); the bodies of both women were dumped on the side of a rural road, next to the roadway; both women were nude or partially nude and were partially covered up; both were still wearing jewelry and their purses were never found; both w omen died from ligature–7– strangulation, a cause of death that is “distinctly uncommon”; appellant worked with both women; appellant initially denied any relationship with the women, oth er than friendship; there were no witnesses to the murders; although both women were last seen dr iving, their cars were not found at the crime scene and were later found within four miles of ap pellant’s apartment; and appellant’s DNA was found on the bodies of both women––underneath Warrell’s fingernails and from Trimble’s vaginal and anal swabs. Appellant nevertheless argues the offenses were not similar en ough to rise to the level of showing a “signature.” Specifi cally, he argues (1) no one saw appellant and Trimble together on the evening she was murdered whereas Warrell told a friend she was going to see appellant on the day she was murdered; Warrell’s body was found wrapped in a bed sheet belonging to one of appellant’s children; calls wer e placed from Warrell’s cellphon e after she was murdered; and appellant’s fingerprints were found in Warrell’s car after it w as recovered. Although there were some details that differed between the two offenses, those diff erences do not negate the many numerous small details that were similar. For example, evidenc e showed cellphones were not widely used in 1989 and Trimble did not own one. And the other dissimilarities noted by appellant are not differences in the mode of the commission of the crime but are additional links to appellant.
See Lane , 933 S.W.2d at 519 (reviewing mo de of committing offenses and circumstances surrounding offenses when determining admissibility of extraneo us offense). Appellant also argues the prior offense was too remote to be a dmissible under rule 404(b). But cases may be sufficiently similar even if committed years a part. For example, in Lane , the offenses occurred a decade apart in different states; neverthel ess, the court concluded the mode of committing the offenses and the circumstances were sufficiently similar to the extraneous offense to be relevant to identity. See Lane , 933 S.W.2d at 519. Similarly, in Segundo , an eleven-year difference between the offenses did not render the extraneous o ffense too remote. See Segundo ,–8– 270 S.W.3d at 89–90. Given the similarities of the two crimes as set out above, we conclude it was within the zone of reasonable disagreement for the trial co urt to determine the Warrell murder was sufficiently similar to Trimble’s murder that evidence of t he Warrell murder was admissible to prove identity in the Trimble case. We next address appellant’s contention that even if the evidenc e was relevant and admissible under rule 404(b), the trial court abused its discre tion by failing to exclude it under rule 403. Rule 403 allows for the exclusion of otherwise relevant e vidence when its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or ne edless presentation of cumulative evidence.” T EX

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. 403. The rule favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010); Young v. State , 283 S.W.3d 854, 876 (Tex. Cr im. App. 2009). Rule 403 does not require exclusion of evidence simply because it creates prejudice; rather, the prejudice must be “unfair.” Martinez , 327 S.W.3d at 737. To determine admissibility under rule 403, courts consider (1) how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence; (2) the poten tial that the extraneous offense will impress the jury in some irrational but indelible way; (3) the trial time needed to develop evidence of the extraneous mis conduct; and (4) the proponent’s need for the extraneous offense evidence. Lane , 933 S.W.2d at 520. We uphold the ruling on a rule 403 balanc ing test if it is within the zone of reasonable disagreement. Id

. The first factor in the rule 403 balancing analysis considers t he strength of the extraneous offense to make a fact of consequence more or less probable. A t trial, appellant disputed his identity as the murderer, which is a fact of consequence in the case. The Warrell murder, given its striking similarities with the Trimble murder, including the pr esence of appellant’s DNA on both–9– women’s bodies, is compelling evidence of identity and probativ e of appellant’s identity as the person who murdered Trimble. That Trimble was murdered twelve years before Warrell is a factor to consider when assessing the probative value of the evidence, but it does not alone render it excludable. See Gaytan v. State , 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d) (concluding extraneous offenses committed more than twenty year s before charged crime admissible under rule 403). Eve n considering remoteness, we co nclude the probative value of the evidence was strong. The second factor requires us to examine the extraneous offense evidence “for its potential to impress the jury in some irrational but indelible way,” such as character conformity. But an impermissible inference of character conformity can be minimize d by the use of a limiting instruction. McGregor v. State , 394 S.W.3d 90, 120–21 (Tex. App.—Houston [1 st Dist.] 2012, pet. ref’d ). Here, before admitting evidence of Warrell’s mur der, the trial court specifically instructed the jury it could consider the evidence only for the limited purpose of identity; the court told jurors it could not consider the evidence as a substitute for proof that appellant committed the crime charged or as proof that appellant had a “criminal person ality or bad character.” The trial court repeated the instruction a second time the following day before the Kaufman County investigating officer testifie d. Additionally, the trial court included the same limiting instruction in the jury’s charge. Nothing in the record indicates the jury could not, or did not, evaluate the import of this evidence in accordance with the trial court’s or al and written instructions. Nor do we perceive any reason a limiting instruction would be any less effective in the present case than in other cases in which identity is an issue. See Lane , 933 S.W.2d at 520. Additionally, the evidence regarding Warrell’s murder was no more heinous than Tr imble’s murder and was not likely to create such prejudice that the jury would have been u nable to limit its consideration to its
proper purpose. See Taylor v. State , 920 S.W.2d 319, 323 (Tex. Crim. App. 1996).–10– The third factor takes into account the amount of time taken to develop the evidence of Warrell’s murder. The evidentiary portion of the guilt-innocen ce phase of the trial lasted about two-and-a-half days. The defense presented no witnesses and re sted after the State presented its case. The extraneous offense evidence took less than a half da y to present and constituted no more than about 70 pages of more tha n 500 pages of testimony, or abo ut fifteen percent. See Lane , 933 S.W.2d at 520 (concluding amount o f time not excessive when dev eloped in less than one-fifth of testimony in State’s case in chi ef). Appellant argues the Stat e took an “inordinate” amount of time and essentially tried him for Warrell’s murder by calling the i nvestigating officer, two DNA witnesses, and the medical examine r who performed the autopsy o n Warrell’s body in 2001. But the State had to do more than simply offer evidence of the prio r murder conviction; these witnesses were necessary to develop the details of the Warrell offense to show the similarities to the instant offense, including evidence that appellant’s DNA was found on h er body and that she died by ligature strangulation. See Segundo , 270 S.W. 3d at 90 (noting that developing chain of custody for vaginal swabs, analysis fo r semen, and identification of DN A profile then matc hed against the appellant’s, “requires a long lis t of witnesses and a slow plod through pertinent scientific procedures”). As for the admission of photographs of the Warrell crime scene, these photographs illustrated the similarities between the two crimes: both bodi es, nude or partially nude, and covered by either a sheet or cl othing, were dumped on the side the road in undeveloped areas. This was not evidence that might lead the jury into an irrational or emotional decision; it was admissible as evidence of identity in Trimble’s murder and to ensure the j ury considered the extraneous offense for its proper, limited purpose. Finally, the State’s need for the evidence was great. More tha n twenty-seven years had passed by the time appellant was tried for the murder of Trimbl e. Much of the evidence was circumstantial, and identity was contested. There were no witn esses to the murder or to the–11– dumping of the body. The only phy sical evidence connecting app ellant to Trimble’s murder was his DNA found inside her vaginal and anal canals. But appellan t ultimately admitted to investigators that he was having a sexual relationship with Tri mble, which would provide an explanation for the evidence. Here, considering all of the factors, we conclude the trial cou rt was within the zone of reasonable disagreement when it concluded the probative value o f the extraneous offense was not substantially outweighed by the danger of unfair prejudice, con fusion of issues, and misleading of the jury; thus, the trial court did not abuse its discretion in overruling appellant’s rule 403 objection. We overrule the sole issue. We affirm the trial court’s judgment.

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. P. 47.2(b) 170506F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–12– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TEMMIE COOLEY, Appellant

No. 05-17-00506-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 416th Judicial District Court, Collin County, Texas Trial Court Cause No. 416-82809-2014. Opinion delivered by Justice Francis; Justices Bridges and Lang-Miers participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered December 6, 2018.