1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00083-CR

__________________

MARQUIS DESHAWN CLARK JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 18-09-12648-CR

__________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Marquis Deshawn Clark Jr. for aggravated 

robbery by using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal 

Code Ann. § 29.03(a)(2). Clark pleaded “not guilty,” but a jury found him guilty of 

the offense charged and assessed punishment at imprisonment for life. Clark appeals 

his conviction, raising six issues. Finding no reversible error, we affirm.
2

Evidence at Trial

Testimony of Law Enforcement Officers

Corey Cooke, a deputy with the Montgomery County Sheriff’s Office testified 

that he responded to a call at about 2:45 a.m. on August 23, 2018, for an aggravated 

robbery at a Circle K convenience store in Porter, Texas. Cooke testified that the 

surveillance video showed that the suspects arrived in a black Dodge Ram truck and 

left in the same vehicle. According to Cooke, four men arrived in the truck and 

entered the store, and two of the men had handguns. The suspects held a man in the 

parking lot at gunpoint and forced the man into the store, one suspect jumped over 

the counter and put a gun in the cashier’s face, took $50 from the register, about ten

packs of cigarettes, and two cell phones. One of the suspects was not wearing a mask 

and he was later identified as Lacharles Craige and as the man who put a gun in the 

cashier’s face. 

The surveillance video from the Circle K was admitted into evidence and 

published to the jury. Cooke identified Trenton Jackson and Lacharles Craige in the 

video. Cooke also identified a third suspect wearing all black, a mask, and red 

gloves, and a fourth suspect wearing a University of Houston hoodie and mask. 

Craige had a black and silver semi-automatic handgun, Jackson also had a pistol 

pointed at the cashier, and the third suspect who was wearing the red gloves had a 

black semi-automatic handgun. According to Cooke, the suspects also held two 
3

people in the parking lot at gunpoint and stole their cell phones so they could not 

notify law enforcement. Cooke characterized the robbery as “extremely violent and 

extremely reckless[.]”

The following day, Cooke learned of a robbery at an adult bookstore in 

Houston that was also committed by four men about thirty minutes after the robbery 

at the Circle K. Cooke contacted Detective Nealy with the Houston Police 

Department who provided a photograph of one of the suspects from the adult 

bookstore robbery and that photograph was of Craige. Craige was the only suspect 

in the Circle K robbery who was not wearing a mask. Cooke learned that Nealy had 

already interviewed Craige, and Craige had admitted to the Circle K robbery. Cooke 

testified that he spoke with a victim whom the suspects pulled into the store from 

the parking lot, and the victim recalled that someone held a pistol to the back of his 

head. On cross-examination Cooke testified that Lacharles Craige and the third 

suspect, who wore red gloves, held guns to the victims’ heads. Cooke agreed that 

the third suspect seemed to be a “lookout” for a while and then he went behind the 

counter. 

Detective Brad Curtis, with the homicide and violent crimes unit of the 

Montgomery County Sheriff’s Office, testified that he was assigned to the Circle K 

robbery that occurred on August 23, 2018, in Porter. He had reviewed videos of the 

Circle K robbery and of the robbery committed about thirty minutes later. Curtis 
4

agreed he verified that four people were involved in both robberies. According to 

Curtis, the deputies who responded to the robbery quickly learned of another similar 

crime that occurred not far away that seemed to involve the same vehicle and people. 

Curtis testified that the responding deputies at the Circle K identified that a Dodge 

pickup truck was involved in the Circle K store robbery, and later a wrecked Dodge 

pickup truck was located at the scene of the second robbery. Curtis identified certain 

exhibits as photos of Clark, Craige, Jackson, and Cameron Lucas. Curtis agreed that 

Craige had entered a guilty plea and received a fifty-year sentence, Jackson pleaded 

guilty and received a forty-year sentence, and Lucas pleaded guilty and received a 

thirty-year sentence—all for their involvement in the Circle K robbery. On crossexamination, Curtis agreed that based solely on the video from the Circle K, he could 

not say that Clark was in the store that night. 

Officer Bobby Carlyle, with the Houston Police Department, testified that on 

August 23, 2018, he responded to a “hold-up panic alarm” from an adult bookstore. 

Carlyle testified that when he arrived and entered the store, he encountered a man 

wearing a hoodie and a mask who was holding a gun, and the man ran toward the 

back of the store where he got into a black four-door sedan and drove to the front of 

the store. When Carlyle’s backup arrived, the officers pursued the vehicle south 

toward Houston, they lost the vehicle for a while, but other police units caught the 

vehicle when it crashed. According to Carlyle, the police matched one of the suspects 
5

to video from the store’s surveillance cameras. Carlyle also testified that he talked 

with the store’s cashier shortly after the robbery, and she told them, “they [] made 

her...get naked and then made her perform oral sex on [two] of them.” 

Officer Joshua Vincent, with the Houston Police Department, testified that on 

the night of August 23, 2018, dispatch put out a priority call for service on a holdup panic alarm at an adult bookstore. Before he could get to the location, he heard 

over the radio that the suspects’ vehicle had crashed, and the suspects were running 

on foot. He and his superior officer stopped the vehicle to help set up a perimeter, 

and a Black male who was bloody and sweaty approached the vehicle and said he 

was in a crash and was hurt. Vincent testified that he later identified the man as 

Lacharles Craige. 

Special Agent Curtis Williams, with the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (“ATF”), testified that he is a digital media collections 

specialist trained to extract information stored on electronic devices, including from 

cell phones. Williams agreed he was contacted by another special agent to complete 

a “cell phone dump” in this case pursuant to a warrant, and he identified Clark’s cell 

phone, which was admitted into evidence. He was unable to unlock the cell phone, 

but ATF was able to extract information from the phone and store it on two USB 

drives, and Williams generated a report on the phone’s contents, which was admitted 

into evidence. 
6

Special Agent Dominic Rosamilia, a special agent with ATF assigned to 

violent crimes, testified that he was brought into this case by a Houston Police 

Department robbery task force officer. According to Rosamilia, ATF became 

involved because the crimes were in two jurisdictions and initial investigation 

discovered that robberies had been committed in three counties. Rosamilia testified 

that the suspects would use stolen vehicles and often wore the same clothing, 

including a skull mask. Rosamilia characterized the robberies as “a string of 

violence.”

Rosamilia stated he served as a case manager, and he took over the search 

warrant for the phones. Rosamilia testified that he received a report of the “cell 

phone dump” of Clark’s phone, and he examined the timeline of calls, messages, 

and pictures from the phone. According to Rosamilia, the timeline from Clark’s cell 

phone showed no data, messages, or pictures during at least a two-hour window on 

the dates of the robberies except for one Facetime call. Based on his experience and 

training, this indicated the cell phone user was likely turning the phone off during 

that window, and he was unable to identify the phone’s location from pings off cell 

towers during that window. Rosamilia testified that the report from Clark’s phone 

showed more than twenty Google searches between August 27 and September 4 for 

news updates on robbery, update on adult bookstore robbery, “adult bookstore 

employee raped in takeover robbery[,]” and suspects caught after sexual assault. 
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Rosamilia also testified that in the days prior to August 24, 2018, the report showed 

searches for “Shipley Donuts robbery[,]” a drive-through robbery at McDonald’s, 

and robberies in northwest Houston. According to Rosamilia, one message from the 

phone dated August 23, 2018 stated “I lost my stuff on the lick last night[.]” 

Rosamilia testified that he identified other messages from the phone dated August 

29 indicating that people were “snitching” or “telling[]” and at that time, arrests had 

been made in the robbery. Rosamilia also identified a message from the phone 

identifying the sender as “Marquis.” Rosamilia also identified a photo from the 

phone that depicted Clark with a semi-automatic firearm with an extended magazine 

that holds thirty rounds of ammunition, and he agreed that a gun similar to this had 

been used in at least one of the robberies in this case. 

Detective Jeremy Curtis, with the Houston Police Department, testified that 

he is assigned to the robbery division, violent offender task force, and the ATF crime 

strike force in Houston. Curtis agreed that, with the assistance of ATF, he was able 

to link numerous aggravated robberies that took place in and around Houston based 

on common factors, including the clothing and faces of the individuals involved in 

the series of robberies, their guns, and their propensity for violence with firearms. 

He agreed that there were instances where robberies were committed “within 

minutes of each other [and] [i]n close proximity to each other[.]” Curtis testified that 

he and Detective Nealy interviewed Lacharles Craige after he was caught fleeing 
8

from the adult bookstore robbery. According to Curtis, after interviewing Craige, 

Trenton Jackson, Cameron Lucas, and Marquis Clark were identified as suspects. 

Curtis testified that a warrant for Clark’s arrest was obtained, he was apprehended 

with the assistance of the SWAT team, and Curtis interviewed Clark when he was 

in police custody. Curtis agreed that in interviewing Cameron Lucas and Trenton 

Jackson, he learned some corroborating information about the numerous aggravated 

robberies that were committed by them and by Clark. A video exhibit of Curtis’s 

interview with Clark was admitted into evidence. 

Detective Ken Nealy, with the Houston Police Department, testified that he 

was a task force officer assigned to ATF. Nealy testified that when he is involved in 

investigating “crews,” he looks “at those as individuals, at least two to three people, 

that have the same common goal, that sometimes they are organized and sometimes 

unorganized. But the purpose and the design [of the crew] is to go in and commit a 

robbery or aggravated robbery.” Nealy also testified that suspects will often use a 

stolen car when committing a crime and abandon it after committing the crime. 

Nealy agreed on cross-examination that no DNA evidence linked Clark to the 

robberies at the Circle K or the adult bookstore.

Nealy testified that he responded to the robbery at the adult bookstore on 

August 23, 2018. Upon arrival at the scene, he saw a truck parked in front of the 

business and a wrecked Toyota Corolla that had been returned to the store by a tow 
9

truck. Nealy testified that he entered the store, found it “in total disarray,” and spoke 

with the security guard, who told him he had been forced to the ground, had a gun 

held on him, and had his weapon taken. Nealy also testified that he spoke to the store 

clerk, who reported that the suspects “basically took over[]” when they entered the 

store, held a gun to her head, and forced her to perform oral sex on two of the 

suspects. According to Nealy, the store clerk had triggered the hold-up alarm during 

a time when the men left her alone in a back room. Nealy testified that the store clerk 

made an identification from photo spreads that was corroborated by the similarity of 

other cases, with what he observed from surveillance video, by the gloves and skull 

mask worn by Clark at the numerous robberies, and from what Craige, Jackson, and 

Lucas told him. Nealy also testified that the surveillance video from the adult 

bookstore was “[p]robably the best ever[]” that he had seen because it was clear and 

digital. 

Nealy testified that he interviewed Lacharles Craige, who was the first suspect 

to be arrested. According to Nealy, Craige provided Trenton Jackson’s name, and 

after Nealy matched a photo of Jackson from a law enforcement database to the 

video from the store, an arrest warrant for Jackson issued. Nealy testified that the 

investigation expanded based on statements from Craige and Jackson, and after 

receiving a call from a Detective Curtis in Montgomery County about the Circle K 

robbery, they determined that the vehicle the suspects used in Montgomery County 
10

was the same one the suspects drove to the adult bookstore. According to Nealy, he 

was able to “reconcile the video[s]” from both the Circle K and the adult bookstore, 

both of which depicted the same crew, including Clark, wearing the same clothes, 

behaving in the same manner, and displaying the same make and model firearms. 

Nealy agreed that this group of defendants also “had a very keen affinity for Newport 

cigarettes[.]” 

Nealy agreed that he and Detective Curtis, along with the prosecutor, 

interviewed Cameron Lucas in prison, who was forthcoming with information that 

linked Clark to the Circle K and adult bookstore robberies. Nealy testified that after 

reviewing video footage of robberies at a Denny’s off of FM 1960 and McDonald’s 

on FM 1960, robberies in Sugar Land and Missouri City, and at the Shipley’s Donut 

store, he noted “they were very similar in the fact that they would basically do a 

takeover. They would actually enter the business swiftly armed. They would produce 

weapons and actually make demands of the people inside that were in the business.” 

After “putting the pieces of the puzzle together[,]” an arrest warrant for Clark was 

obtained. Nealy testified that Clark was arrested with the assistance of undercover 

officers. Nealy also testified that in a search of Clark’s residence,1 officers found a 

long-sleeved black hoodie that resembled what Nealy had observed on surveillance 

1 The search of the residence was conducted pursuant to consent by the owner, 

who was Clark’s stepfather, and Clark also signed a consent to search his room. 
11

videos of the Circle K and the adult bookstore. Nealy stated that a detective who 

specializes in social media had located Clark’s social media accounts, and she 

identified a picture posted by Clark about a wreck he had been in that was posted on 

August 26, 2018. Nealy also stated that information from Clark’s cell phone 

supported the fact that Clark was involved in the Circle K robbery including Google 

searches and text messages. Nealy verified that the cell phone obtained was Clark’s 

by having Clark use his fingerprint to unlock it. According to Nealy, Clark 

consistently denied his involvement. Nealy agreed that a backpack found in the 

Dodge truck that was left at the adult bookstore contained Clark’s Texas ID card, a 

pair of “working hands gloves[,]” and six unopened packages of Newport cigarettes. 

Nealy also agreed that two cartons of Newport cigarettes were recovered from the 

Dodge truck. On cross-examination, Nealy agreed that the store clerk at the adult 

bookstore had stated there was a mole on Clark’s genitals, but Nealy was unable to 

identify any distinguishing marks on Clark in a photograph taken after Clark was 

arrested.

The State also called eleven additional law enforcement officers from the 

Harris County Sheriff’s Office, the Houston Police Department, the Pasadena Police 

Department, the Missouri City Police Department, and the Sugar Land Police 

Department to testify. The officers testified about their involvement investigating 

the following takeover-style robberies: America’s Inn on July 12, 2018; Shipley’s 
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Donuts on July 16, 2018; Subway restaurant on July 20, 2018; Shipley’s Donuts on 

July 23, 2018; Denny’s on August 8, 2018; McDonald’s on August 12, 2018; Stripes 

gas station and McDonald’s on August 14, 2018; and Pappa’s Son donut shop and 

Timewise gas station on August 18, 2018.

Testimony of Victims2

Tom testified that he and his fiancé Allie stopped at the Circle K store one 

night, and there was a four-door Dodge vehicle with all doors open in the parking 

lot. Tom testified that a person wearing black clothes, red gloves, and a red bandana 

on his face approached their vehicle and demanded that they give him their phones. 

Timothy and his fiancé went home and called 911 to report the incident. Timothy 

was unable to identify anyone in the courtroom as the person who took their phones.

Allie testified that on August 23, 2018, Tom picked her up after her work shift 

ended in the early morning hours, and they stopped at a store to get something to 

drink. According to Allie, a man with a gun approached their car and asked for their 

phones, and they complied. Allie testified that the man wore all black, red gloves, 

and had a red bandana covering his face. Allie testified that the police arrived within 

a few minutes, and she gave a statement to the police. 

2 We use pseudonyms to refer to the alleged victims. See Tex. Const. art. I, 

§ 30(a)(1) (granting crime victims “the right to be treated with fairness and with 

respect for the victim’s dignity and privacy throughout the criminal justice 

process[]”).
13

Donald testified that he was working the night shift by himself at the Circle K 

on the day of the robbery. The surveillance video from the store was admitted into 

evidence and published to the jury. Donald testified that he saw a black Dodge truck 

circling around the parking lot before the robbery occurred. According to Donald, 

when the men first entered the store, one man jumped over the counter, knocked 

over cigarettes, and opened the register. Donald testified that two other men walked 

behind the counter, and one put a gun to his head and told him to open the safe. 

Donald testified that he was present in court when Craige pleaded guilty to the 

robbery, and he recognized Craige as the man who told him to open the register. In 

reviewing the surveillance video from the store, Donald identified a man wearing 

red gloves who told him to open the safe. Donald agreed that at one point, the man 

wearing red gloves tried to open the safe. Donald also agreed that during the robbery, 

a customer who was getting gasoline entered the store, and the man in the red gloves 

said, “shoot him and let’s go[.]” 

Donald testified that the store’s property loss report showed a loss of $172 

from the cash box and 64 packs of Newport cigarettes valued at $441. After the men 

left the store, Donald called his wife and then called 911. On cross-examination, 

Donald agreed he originally told the police that five or six people were involved in 

the robbery, but in his estimation, it was “an honest mistake[.]” He agreed that two 
14

of the men showed their faces and two did not, but he could tell that one man wearing 

a mask was Black because he could see the area around his eyes.

Nathaniel testified that he worked for a security company and on August 23, 

2018, he was working the night shift at an adult bookstore in Houston. According to 

Nathaniel, at about 3 a.m., four Black men entered the store and held the cashier at 

gunpoint. A man wearing red gloves told him to lie on the floor, pointed a gun at 

him, kicked him, and took his gun, wallet, and cell phones. Nathaniel testified that 

when the men left, they took his car—a black Toyota Corolla—which they wrecked 

when the police followed them. Nathaniel recognized his vehicle in the photo 

admitted as Exhibit 2-A-1. Nathaniel agreed he watched surveillance video from the 

store the night of the robbery, which was admitted into evidence and published to 

the jury. He testified that the video showed four men enter the store, and two of the 

men had guns, including a man wearing red gloves. 

Connie testified that she works at an adult bookstore on US 59, and she agreed 

that on August 23, 2018, the store was robbed in the early morning hours. According 

to Connie, she and the security guard were at the store at about 2 a.m. when the door 

opened, and she saw the reflection of a gun. Connie testified that four men came in, 

she saw that two of the men had guns, and one man asked her to take him to the 

money. Connie testified that she opened the register that held cash, some of the men 

disarmed the security guard, but she was unable to open the safe as the men asked.
15

According to Connie, when the men realized she “was no good to them,” they threw 

her in the break room, she was held at gunpoint, a man who was not wearing a mask 

made her take off her clothes and perform oral sex on him, and then a man with a 

gun who was wearing red gloves also made her perform oral sex on him. Eventually 

Connie pressed the panic button in the break room. Connie testified that she heard 

the men say “laws[,]” which she understood as their cue to leave, the men left 

through the back door of the store, and after they had gone, she used the store phone 

to call the police. Connie testified that after the men left, she discovered her cell 

phone and backpack were gone as well as two or three hundred items from the store. 

Connie testified that she went to Ben Taub for a rape kit exam. According to Connie, 

she later identified Craige and Jackson to the police, and she was 80% certain of her 

identification of Clark to the police. She also told police that one of the men who 

sexually assaulted her had a mole on his genitals. 

Amy testified that she was a department manager at a McDonald’s where 

several men committed a robbery on August 8, 2018, while she was working. 

According to Amy, one of the men fired his gun inside the restaurant, and she hit 

one of the men on the head with a coffee pot. 

Codefendants Craige, Lucas and Jackson

Lacharles Craige, Cameron Lucas, and Trenton Jackson were charged in 

Montgomery County for the aggravated robbery that occurred on or about August 
16

23, 2018, and all three men entered guilty pleas, and judgments were entered for all 

three. Craige was sentenced to fifty years’ imprisonment, Lucas was sentenced to 

thirty years, and Jackson was sentenced to forty years. 

Jackson testified at Clark’s trial and told the jury that on the night of August 

23, 2018, he, Clark, Craige, and Lucas drove in a black truck to an area north of 

Houston. According to Jackson, the four men robbed a convenience store where 

Jackson took Newport cigarettes. Jackson testified that the four men entered the 

store, they laid the store clerk on the ground, Jackson grabbed Newport cigarettes, 

and then asked the clerk to open the safe. According to Jackson, they left in the truck, 

and after about twenty minutes, they stopped at another store where they held the 

security guard hostage and took his gun, phone, and credit cards, and they also took 

store merchandise and about two thousand dollars. Jackson identified himself, Clark, 

Craige, and Lucas in photos taken from the convenience store surveillance video and 

the adult bookstore surveillance video, and he agreed that Clark was the man 

pictured wearing red gloves. Jackson agreed the men left in the security guard’s 

vehicle, which they wrecked when the police were chasing them. Jackson testified 

that Clark told him he had checked the internet to see if the robbery made the news.

Cameron Lucas testified that he was an inmate at the Gibb Lewis Unit, he had 

pleaded guilty to an aggravated robbery that occurred on or about August 23, 2018, 

and he had agreed to testify against Clark in exchange for certain charges not being 
17

prosecuted against him. Lucas testified that he, Clark, Craige, and Jackson were 

together in a black truck on August 23, 2018, they planned to “hit a lick[,]” they had 

masks and gloves, they found a store that was open, but they did not get much money 

there. Lucas looked at photos from the store’s surveillance video, and he identified 

himself wearing a hoodie and yellow gloves, Jackson with something pink over his 

face, and he identified Clark. Lucas testified that the clerk was unable to open the 

safe, and Lucas’s role was to get Newport cigarettes and get money out of the 

register. Lucas testified that they decided to “hit another lick[]” because they did not 

get much money, and they went to another store within about an hour. Lucas 

identified Jackson, Craige, Clark, and himself in photos taken from the surveillance 

cameras at the second store, including Clark who was wearing red gloves. According 

to Lucas, they were supposed to get money and whatever they could sell from the 

store and then leave. According to Lucas, Clark made the cashier perform oral sex. 

Lucas testified that when a police officer entered the store at the front door, they left 

from the back door and took the security guard’s car, leaving whatever they had 

taken from the other store in the black truck. Lucas recalled that, at some point, Clark 

asked Lucas where his phone and ID were, and they concluded he left his ID in the 

backpack in the truck. Lucas testified that, after a chase, they crashed, and when they 

split up, he jumped off the freeway. 
18

Lucas testified that he saw on the news that Craige had been caught, and Lucas 

was caught about a week later after Craige informed on him. According to Lucas, 

Clark always used a skull mask when they robbed stores, and they always checked 

the internet after a robbery to see if the police had any leads. Lucas identified a skull 

mask as one that Clark had worn in a robbery at a McDonald’s in Missouri City. 

Lucas testified that he did “licks” with the other men over a period of months in 

2018 including: a McDonald’s and a gas station in Missouri City about twenty 

minutes apart, a Cambodian donut shop, a Dollar Store, a 99 Cent store, an 

America’s Inn, a Shipley’s Donuts store, a Shell station, a McDonald’s and a 

Subway in Pasadena, a McDonald’s and Denny’s in the FM 1960 area, a Stripes gas 

station and a McDonalds in Missouri City near US 59, and a Timewise Shell station 

in Sugar Land—although Lucas did not recall that Clark was involved in the 

robberies at the Shipley’s Donuts or the Shell station. Lucas also identified a mask 

he stole from Academy and sold to Clark that Clark liked to wear during “licks[.]”

After the State rested, the defense did not call any witnesses. The jury charge 

included instructions on the law of parties, accomplice-witness testimony, and 

extraneous offense evidence.3 The jury found Clark guilty as charged. After a 

hearing on punishment, the jury assessed punishment at life imprisonment. Clark 

timely appealed. 

3 Clark does not raise a challenge to the jury charge in this appeal.
19

Issues

Appellant raises the following issues on appeal:

1. Appellant was denied his constitutional due process right to be 

tried solely on the case for which he was indicted.

2. Appellant was denied his constitutional due process right to a fair 

trial by the Trial Court’s failure to understand and apply the law 

applicable to his case.

3. The Trial court failed to conduct the probative v. prejudicial 

balancing test required by T.R.E. Rule 403.

4. The State’s attorney failed in his constitutional and statutory duty

to see solely that justice is done in putting inadmissible evidence 

before the jury.

5. Defense counsel was ineffective in failing to object to the 

extraneous offenses as being non-contextual.

6. Defense counsel was ineffective in failing to raise a T.R.E. Rule

404(b) objection to the extraneous offense evidence at 

guilt/innocence.

Each of Appellant’s issues relates to the admission of evidence of extraneous 

offenses for which he was not indicted or prosecuted in this case.

Preservation of Error

In this case, the trial court initially allowed the State to introduce evidence of 

the aggravated robbery at the adult bookstore but required the State to omit facts 

about the alleged sexual assault. The court explained:

I think you are able to talk about that there was another aggravated 

robbery and that he became a suspect, that’s how they honed in on him, 

and the links to him in order to show that -- because I think the car at 

the other place and the car at the first place, I think that that to me is 

part and parcel of the first offense, our offense.
20

Defense counsel stated, “We are not going to object to that....We are not going to 

make an objection at that point.” In addition, the State put on testimony by law 

enforcement officers and by codefendants and other evidence of other aggravated 

robberies during its case in chief. Later during trial, the defense agreed to the 

admission of an alleged sexual assault at the adult bookstore because the defense 

believed the evidence included “exculpatory material[.]” Specifically, the victim of 

the sexual assault described one of her assailants as having a mole on his genitals.

To preserve error for appellate review, the record must show that the objection 

“stated the grounds for the ruling that the complaining party sought from the trial 

court with sufficient specificity to make the trial court aware of the complaint, unless 

the specific grounds were apparent from the context[.]” Tex. R. App. P. 

33.1(a)(1)(A). The point of error on appeal must comport with the objection made 

at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Thomas 

v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). Therefore, even when a 

party fails to properly object to alleged constitutional errors at trial, the errors can be 

forfeited. Id. (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)).

In his first issue on appeal, Appellant argues that because of the admission of 

extraneous offense evidence—that is, other aggravated robberies—he was 

prosecuted for a “criminal episode” under sections 3.01 and 3.02 of the Penal Code, 

which denied him the “constitutional right to be tried solely for the offense for which 
21

he was indicted.” Appellant did not make these objections at trial, and there is 

nothing in the record that indicates the trial court or prosecutor knew that Appellant 

was making this or a similar due-process objection. Moreover, the jury charge does 

not reflect that the case was submitted to the jury as a “criminal episode” offense, 

but rather that the jury was asked to decide only the offense charged in the 

indictment. Appellant never put the court on notice of his alleged due-process

complaint, nor did he argue to the trial court that he believed he was being denied a 

fair trial, and the issues Appellant raises on appeal were forfeited. See Clark, 365 

S.W.3d at 339-40 (explaining that evidentiary objections at trial do not preserve a 

due process claim for appeal). In addition, Appellant cites no authority for his 

argument that the admission of the extraneous-offense evidence denied him due 

process. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992) (refusing 

to address an argument as inadequately briefed where appellant cited no 

constitutional provision, statutory authority, or case law in support of his claim). We 

overrule Appellant’s first issue.

Appellant’s fourth issue argues that the prosecutor “failed in his constitutional 

and statutory duty to see solely that justice is done” in putting inadmissible evidence

before the jury. “Prosecutorial misconduct is generally an independent basis for 

objection that must be specifically urged [at trial] in order for error to be preserved.” 

Taylor v. State, Nos. 09-16-00303-CR & 09-16-00307-CR, 2018 Tex. App. LEXIS 
22

3426, at *16 (Tex. App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not 

designated for publication) (citing Hajjar v. State, 176 S.W.3d 554, 566 (Tex. 

App.—Houston [14th Dist.] 2004, pet. ref’d)). The proper method of preserving 

error for a claim of prosecutorial misconduct is to (1) object on specific grounds, 

(2) request an instruction that the factfinder disregard the comment, and (3) move 

for a mistrial. See Joyner v. State, 548 S.W.3d 731, 735 (Tex. App.—Houston [1st 

Dist.] 2018, pet. ref’d) (citing Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 

1995); Hajjar, 176 S.W.3d at 566). 

We have examined the entire record and Appellant never made this objection, 

nor did he request an instruction that the factfinder disregard the comment, nor move 

for a mistrial on this basis. Appellant did not preserve the issue for appeal. See Tex. 

R. App. P. 33.1(a)(1); Joyner, 548 S.W.3d at 735-36; Patterson v. State, 496 S.W.3d 

919, 929 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (“Defense counsel did 

not assert that the State...engaged in prosecutorial misconduct. Thus, Patterson has 

not preserved any alleged prosecutorial misconduct issue for appellate review.”); 

Hajjar, 176 S.W.3d at 566 (addressing prosecutorial misconduct argument and 

concluding: “By failing to object on this theory at trial, appellant has preserved 

nothing for our review.”). Moreover, as we have already noted, Appellant did not 

object to the evidence of the robbery at the adult exotic store at trial. We overrule 

Appellant’s fourth issue.
23

Admission of Evidence

In his second issue on appeal, Appellant argues that he was “denied his 

constitutional due process right to a fair trial by the Trial Court’s failure to 

understand and apply the law applicable to his case.” Specifically, he argues that the 

trial court (1) “was not clear” on the standard for admission of same contextual 

transaction evidence versus extraneous offense evidence to prove identity under 

Rule 404(b) and (2) “confus[ed] evidence admissible for a [Penal Code] Chapter 3 

‘criminal episode’ with the evidence admissible to prove the one indicted aggravated 

robbery.” Appellant argues that the trial court’s “failure to understand and apply the 

law applicable to his case[]” resulted in a denial of his constitutional due process 

right to a fair trial. Appellant failed to make this objection at trial. Moreover, we 

conclude that any error in the admission of evidence is generally non-constitutional 

error and subject to a harmless error analysis. See Tex. R. App. P. 44.2(b). Appellant 

complains that admission of evidence of five robberies in addition to the one for 

which Appellant was tried did not meet the standard for same contextual transaction 

evidence and that the second robbery at the adult bookstore was not needed to 

explain the Circle K robbery for which Appellant was indicted. 

Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) 
24

(op. on reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of 

reasonable disagreement[.]” Id. “The erroneous admission of evidence is nonconstitutional error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 

2018) (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). “Nonconstitutional errors are harmful, and thus require reversal, only if they affect 

Appellant’s substantial rights.” Id. (citing Tex. R. App. P. 44.2(b)). The Court of 

Criminal Appeals has construed this to mean that “an error is reversible only when 

it has a substantial and injurious effect or influence in determin[ing] the jury’s 

verdict.” Id. (citing Taylor, 268 S.W.3d at 592). “If we have a fair assurance from 

an examination of the record as a whole that the error did not influence the jury, or 

had but a slight effect, we will not overturn the conviction.” Id. If the trial court’s 

evidentiary ruling is correct on any theory of law applicable to that ruling, it will not 

be disturbed even if the trial court gave the wrong reason for its correct ruling. De 

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing Osbourn v. 

State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Sewell v. State, 629 S.W.2d 42, 

45 (Tex. Crim. App. 1982); Shugart v. State, 32 S.W.3d 355, 362 (Tex. App.—Waco 

2000, pet. ref’d)). 

Applicable Law

“Same transaction contextual evidence” is evidence that “imparts to the trier 

of fact information essential to understanding the context and circumstances of 
25

events which, although legally separate offenses, are blended or interwoven.” 

Desormeaux v. State, 362 S.W.3d 233, 238 (Tex. App.—Beaumont 2012, no pet.) 

(citing Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Rogers v. 

State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). Same transaction contextual 

evidence reflects the context in which a criminal act occurred and recognizes that 

events do not occur in a vacuum, and “a jury has a right to hear what occurred 

immediately before and after the offense in order to realistically evaluate the 

evidence.” McDonald v. State, 148 S.W.3d 598, 601 (Tex. App.—Houston [14th 

Dist.] 2004), aff’d, 179 S.W.3d 571 (Tex. Crim. App. 2005) (citing Wesbrook v. 

State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). 

To be admissible under Rule 404(b)—that is, relevant for a purpose other than 

to show character conformity—same transaction contextual evidence must be 

necessary to the jury’s understanding of the offense. Id. at 601-02. Thus, necessity 

may be the “other purpose” for which the evidence is admissible under Rule 404(b). 

Id. at 602 (citing Rogers, 853 S.W.2d at 33). Necessity can exist either because: 

(1) several offenses are so intermixed or connected as to form a single, indivisible 

criminal transaction, such that in narrating the one, it is impracticable to avoid 

describing the other; or (2) the same transaction contextual evidence tends to 

establish some evidentiary fact, such as motive or intent. Id. In addition, upon a 

timely request, the State must give notice of its intent to introduce Rule 404(b) “other 
26

purpose” extraneous offense evidence “other than that arising in the same 

transaction.” See Tex. R. Evid. 404(b). Although necessity is required for same 

transaction contextual evidence to be relevant under Rule 404(b) for a purpose other 

than character conformity, there is no indication that it is required in order for same 

transaction contextual evidence to simply be evidence “arising in the same 

transaction” and thereby exempt from the Rule 404(b) notice rule. Id.

Although admissible under Rule 404(b), evidence may still be excluded under 

Rule 403 “if its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. 

“Rule 403 favors admissibility of relevant evidence, and the presumption is that 

relevant evidence will be more probative than prejudicial.” Montgomery, 810 

S.W.2d at 389; Gittens v. State, 560 S.W.3d 725, 732 (Tex. App.—San Antonio 

2018, pet. ref’d). Once a trial court determines that extraneous offense evidence is 

admissible under Rule 404(b), the trial court must, upon proper objection by the 

opponent of the evidence, weigh the probative value of the evidence against its 

potential for unfair prejudice. Id.; see Tex. R. Evid. 403. 

[W]hen undertaking a Rule 403 analysis, [the trial court] must balance 

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 

issues, (5) any tendency of the evidence to be given undue weight by a 
27

jury that has not been equipped to evaluate the probative force of the 

evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence 

already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also 

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Once a Rule 403 

objection as to prejudice versus probative value is invoked, the trial court has no 

discretion whether to engage in the balancing test required by that rule. Williams v. 

State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). However, the trial court is not 

required to place any findings it makes or conclusions it draws on the record when 

engaging in the balancing test, and the trial court is presumed to engage in the 

required balancing test once Rule 403 has been invoked. Id.

In this case, the trial court conducted a pretrial hearing on the admissibility of 

evidence of the robbery at the adult bookstore. The State argued that evidence of the 

adult bookstore robbery was admissible as same transaction contextual evidence, 

and the defense agreed that was the legal theory before the court. The court heard 

evidence that the robbery at the adult bookstore occurred about thirty minutes after 

the Circle K robbery, and that Clark was ultimately identified based on evidence 

that the same black truck was identified at both scenes, the suspects wore the same 

kind of clothing, both were “takeover” style robberies, Clark’s Texas-issued ID card 

was found in the bag inside the truck found at the second robbery, and a “significant 

amount” of cigarettes taken from the Circle K were found in the abandoned black 
28

truck at the adult bookstore. Clark’s trial counsel agreed that the ID card found at 

the adult bookstore identified Clark. 

Later, during the trial, the court stated that identity had been placed at issue, 

the defense agreed, and the court further stated that under Rule 404(b), evidence of 

other bad acts was admissible and “that second one on the same day within the 20 

or 30 minutes could lend some relevance on the issue of identity.” The defense 

objected that only evidence of similar bad acts would be admissible and requested 

the court to limit the evidence to what was relevant to a common scheme or plan. 

The court agreed that because there were so many other bad acts, it would limit the 

State to evidence of the “takeover robberies[]” that happened very close in time to 

the charged offense and that involved the codefendants. Clark’s trial counsel told the 

court that, after having spoken with Clark, the defense agreed to admission of 

evidence of the robbery at the adult bookstore because “we believe there is 

exculpatory material that can be provided to the jury[]” and that Clark was “in 

agreement with that.” The State told the court that it had agreed with Clark’s trial 

counsel not to bring in evidence of a sexual assault by Clark and Craige that occurred 

about two weeks before the robbery for which Clark had also been charged. The 

court asked Clark if he understood and agreed to this, and he said “Yes[.]”

The record reflects that the defense agreed that identity was at issue and 

consented to admission of the evidence of the robbery at the adult bookstore. 
29

Therefore, Appellant has waived error as to this issue. Further, the defense also 

requested that the court limit admission of extraneous offense evidence to those that 

show a common scheme or plan. See Tex. R. Evid. 404(b). We conclude, based on 

the record before us, that the trial court limited the admission of extraneous offense 

evidence committed prior to the Circle K and adult bookstore robberies to other 

similar “takeover robberies” and the trial court concluded that identity was at issue 

and the other offenses tended to prove a common scheme or plan under Rule 404(b). 

Therefore, we cannot say that the trial court’s ruling was outside the zone of 

reasonable disagreement. We conclude that the trial court did not err in admitting 

evidence of extraneous offenses under Rule 404(b). We need not address whether 

any such evidence was also admissible as same transaction contextual evidence. See

Tex. R. App. P. 47.1. Because we find no error, we also need not determine if any 

such error was harmful, resulted in an improper verdict, and affected Clark’s 

substantial rights. See Tex. R. App. P. 44.2(b); Gonzalez, 544 S.W.3d at 373. That 

said, we also find that Appellant’s brief fails to present a harm analysis or explain 

how the admission of the complained-of evidence affected his substantial rights or 

resulted in an improper verdict. See id. We overrule Appellant’s second issue on 

appeal.

Appellant’s third issue argues that the trial court failed to conduct a Rule 403 

balancing test in admitting evidence of extraneous offenses and that “[t]he 
30

extraneous aggravated robbery offense evidence was not needed by the State to 

prove anything[.]” As we have already noted above, the trial court stated that identity 

was at issue, to which the defense agreed, and evidence of the takeover-style 

robberies tended to prove a common scheme or plan. The appellate record does not 

affirmatively show that the trial court refused to conduct a Rule 403 balancing test. 

We presume the trial court engaged in a balancing test before admitting the evidence. 

See Williams, 958 S.W.2d at 195. Furthermore, Rule 403 favors the admission of 

relevant evidence, and relevant evidence carries a presumption that it is more 

probative than prejudicial. See id. at 196. Appellant has failed to overcome the 

presumption that the evidence was more probative than prejudicial. See id. at 195-

96. We overrule Appellant’s third issue.

Effective Assistance of Counsel

Appellant’s fifth and sixth issues argue that he was deprived of the effective 

assistance of counsel because his trial counsel failed to object to the admission of 

extraneous-offense evidence as “non-contextual” and he also failed to object to the 

extraneous evidence as inadmissible under Rule 404(b). We analyze these issues 

together.

To establish ineffective assistance, a defendant must satisfy the following test:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the defendant 

by the Sixth Amendment. Second, the defendant must show that the 
31

deficient performance prejudiced the defense. This requires showing 

that counsel’s errors were so serious as to deprive the defendant of a 

fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Perez v. State, 310 

S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Allegations of ineffective assistance 

“must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 

(Tex. Crim. App. 1999). “Appellate review of defense counsel’s representation is 

highly deferential and presumes that counsel’s actions fell within the wide range of 

reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. 

Crim. App. 2002). The appropriate context is the totality of the representation; 

counsel is not to be judged on isolated portions of his representation. See Thompson, 

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). The 

challenged conduct will constitute ineffective assistance only when “the conduct was 

so outrageous that no competent attorney would have engaged in it.” See Garcia v. 

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

“The two prongs of Strickland need not be analyzed in a particular order[.]” 

See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Failure to 

satisfy either prong of Strickland is fatal. See Ex parte Martinez, 195 S.W.3d 713, 

730 n.14 (Tex. Crim. App. 2006). “The Court of Criminal Appeals has noted that 

the standard for showing prejudice on a claim of ineffective assistance of counsel is 
32

more demanding than the showing needed to prove harm under the Rules of 

Appellate Procedure.” Thomas v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston 

[1st Dist.] 2013, pet. ref’d) (citing Martinez, 330 S.W.3d at 903). “To prevail, 

[appellant] must show a reasonable probability that but for his counsel’s deficient 

performance, the result of the proceeding would have been different.” Id. (citing 

Bone, 77 S.W.3d at 833). 

To successfully assert that trial counsel’s failure to object amounted to 

ineffective assistance, the applicant must show that the trial judge would have 

committed error in overruling such an objection. See Martinez, 330 S.W.3d at 901 

(citing Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 

931 S.W.2d 564, 566 (Tex. Crim. App. 1996)).

Ordinarily, on direct appeal, the record will not have been sufficiently 

developed during the trial to demonstrate in the appeal that trial counsel provided 

ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d 

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as 

ineffective, counsel should normally be given an opportunity to explain the 

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). When counsel has not been given an opportunity to explain the challenged 

actions, we will find deficient performance only if the conduct was “so outrageous 

that no competent attorney would have engaged in it.” Id.
33

Clark did not file a Motion for New Trial or present any evidence as to the 

basis for counsel’s reasoning for why he did not object to the admission of 

extraneous-offense evidence as “non-contextual” or otherwise object to the evidence 

as inadmissible under Rule 404(b). Because the record is silent as to the reasons for 

counsel’s conduct, we may not speculate to find counsel’s performance deficient. 

See Bone, 77 S.W.3d at 835. That said, as we have noted, the trial court conducted a 

pretrial hearing on the defendant’s objections under Rule 404(b). Furthermore, the 

record in this case reflects that Appellant’s trial counsel objected to the admission of 

extraneous-offense evidence at several points during the trial. Appellant’s brief does 

not specify when or how trial counsel should have objected in addition to these 

instances. Moreover, Appellant’s brief fails to present argument as to how he was 

prejudiced by his trial counsel’s alleged deficiencies other than conclusory 

statements that he was deprived of his “constitutional right to be tried solely for the 

offense for which he was indicted[]” and that it deprived him of a “‘crucible of 

meaningful adversarial testing[,]’” citing to Moran v. Burbine, 475 U.S. 412, 431 

(1986) (citing United States v. Cronic, 466 U.S. 648, 656 (1984)). A conclusory 

statement that the defendant was prejudiced by his trial counsel’s allegedly deficient 

performance is inadequate to establish prejudice under Strickland. See Ex parte 

Parra, 420 S.W.3d 821, 828 (Tex. Crim. App. 2013). We conclude that Appellant 

has not met his burden to show that his trial counsel’s performance was deficient or 
34

that, but for counsel’s deficient performance, the result of the proceeding would have 

been different. See Thomas, 445 S.W.3d at 210 (citing Bone, 77 S.W.3d at 833); see 

also Martinez, 195 S.W.3d at 730 n.14. We overrule Appellant’s fifth and sixth 

issues.

Having overruled all of Appellant’s issues, we affirm the trial court’s 

judgment.

AFFIRMED.

_________________________

 LEANNE JOHNSON

Justice

Submitted on June 23, 2021

Opinion Delivered November 24, 2021

Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.