       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00727-CR


                                     Dustin Clark, Appellant

                                                v.

                                   The State of Texas, Appellee


                FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY
       NO. D-1-DC-15-207044, THE HONORABLE DAVID CRAIN, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Dustin Clark was charged with five counts of engaging in organized criminal

activity. See Tex. Penal Code § 71.02. At the end of the guilt-or-innocence phase, the jury

found Clark guilty of all five charged offenses.      During the punishment phase, the jury

recommended that Clark be sentenced to seventeen years’ imprisonment for the first, third, and

fifth counts, to ten years’ imprisonment for the second count, and to twelve years’ imprisonment

for the fourth count. See id. §§ 12.32, 71.02(b). The district court rendered its judgments of

conviction in accordance with the jury’s verdicts. In three issues on appeal, Clark contends that

the district court erred by admitting extraneous-offense evidence. We will affirm the district

court’s judgments of conviction.
                                        BACKGROUND

               As mentioned above, Clark was charged with engaging in organized criminal

activity. The five counts arose from allegations that Clark impersonated a police officer and also

committed several robberies. See Tex. Penal Code §§ 29.02, 37.11(a), 71.02. During the trial,

the State presented evidence pertaining to the following five separate offenses:


       November 17, 2015, at approximately 8:20 p.m.: three individuals
       impersonated police officers by using emergency lights on a car and attempted to
       initiate a traffic stop of a family in Buda, Texas. The individuals were wearing
       ski masks and hoodies and were holding handguns.

       November 17, 2015, at approximately 9:30 p.m.: three individuals robbed a
       Golden Chick in Kyle, Texas. Two of the individuals were carrying handguns,
       and they each pointed the weapons at restaurant employees. Surveillance footage
       and photographs from inside the restaurant showed three individuals wearing dark
       ski masks and gloves and hoodies each of a different color—one red, one white,
       and one black.

       December 1, 2015, at approximately 9:20 p.m.: three individuals robbed a
       convenience store named Webberville Grocery in Webberville, Texas.
       Surveillance footage and photographs from the store showed three offenders
       wearing ski masks and gloves. Two of the offenders were also wearing black
       hoodies and carrying handguns, and the last individual was wearing a red hoodie.
       The two individuals carrying the guns pointed the guns at two store employees.

       December 4, 2015, at approximately 9:00 p.m.: three individuals robbed a
       ConocoPhillips gas station in Travis County, Texas. Surveillance footage and
       photos from inside the store showed three robbers wearing hoodies, ski masks,
       and gloves. Two of the hoodies were red in appearance, and the third was black
       in color. One of the offenders with a red hoodie was also wearing red pants. Two
       of the individuals carried handguns and pointed the guns at the store clerk. The
       individual wearing the black hoodie walked down a food aisle and grabbed
       various items before leaving the store.

       December 6, 2015, at approximately 9:20 p.m.: three men robbed a Super Food
       Mart in Travis County, Texas. Surveillance footage and photographs from inside
       the store showed three offenders wearing hoodies and masks. Two of the
       individuals were holding handguns and wearing red hoodies, and they aimed their
       weapons at the store clerk. One of the individuals wearing a red hoodie also wore
       red pants. The third individual wore a dark hoodie, walked down one of the food
       aisles, and took various items before leaving the store.

                                                2
               During the trial, the State introduced evidence of a traffic stop of a vehicle being

driven by Clark on December 9, 2015, and of events that occurred following the traffic stop. In

particular, Officer Sheldon Banta testified that he initiated a traffic stop of the vehicle after the

driver “failed to stop at the proper place at” a stop sign and failed to maintain a single lane.

Next, Officer Virgil Villarreal explained that he responded to a call about the traffic stop, that

three individuals were in the car, that the driver was identified as Clark, and that the two

passengers were identified as Cedric McClain and Ryan Carson. In his testimony, Officer

Villarreal related that he observed inside the car in plain view several pairs of gloves, a black-

and-white bag with “a dark hoodie or sweatshirt” inside it, “a hat or a mask,” red pants, “the

back end of a pistol,” candy, and cash. During Officer Villarreal’s testimony, photos of the

contents of the car were admitted into evidence.

               After Officer Villarreal finished his testimony, Officer Sylvia Leal related that she

had been investigating “a series of robberies” and that she received a call regarding the traffic

stop after the officers involved in the traffic stop became suspicious that Clark and the two

passengers might have been involved in those robberies.           In her testimony, Officer Leal

explained that she reviewed the surveillance footage from the robberies and that she was able to

match Clark, Carson, and McClain with the individuals depicted on those recordings based on

differences in height and other “mannerisms,” including the way that Clark walked and wore a

dark hoodie and shoes with “red laces” or boots. Additionally, Officer Leal related that she was

able to determine that Carson generally wore “camouflage pants and . . . police-style boots” and

that McClain “had an item of red in most of the videos and shiny basketball-type tennis shoes.”

Moreover, Officer Leal testified that the surveillance footage from the Conoco and Super Food

Mart convenience stores depicted Clark taking candy from the two stores.

                                                   3
                   Next, Officer Leal related that she obtained a search warrant to search the car and

that she found the following items in the car: three cell phones, red workout pants, a dark-colored

hoodie, a blue hoodie, two ski masks, two sets of gloves, “an airsoft gun” or “a high-powered BB

gun” that was “a replica of a Glock,” and another airsoft gun that was “a replica of a Colt 1911.”

Further, Officer Leal explained that the car had been leased to Clark, that the car had a GPS

device inside because it was “on lien,” and that she obtained a search warrant for Clark’s home

and for the GPS information for the car and the cell phones recovered from the search of the car.

Regarding the search of Clark’s home, Officer Nathan Matteson testified that he found items

generally associated with police officers, including “red and blue police lights for a vehicle.”

                   During the trial, the State presented testimony and other evidence regarding the

robbery of an Exxon station on November 30, 2015, in Jonestown, Texas. Surveillance footage

from the store was admitted into evidence and played for the jury. On the recording, two

individuals wearing dark hoodies are depicted entering the store at approximately 8:00 p.m. The

first individual was not wearing a ski mask but was wearing a dark hoodie and gloves, and he

went to a food aisle and took several items before leaving the store. The second individual was

wearing a ski mask, a dark hoodie, and gloves, and he was carrying a handgun and pointed it at

the store clerk.

                   Next, the State called Mark Sedwick to the stand to discuss the GPS analysis that

he performed on Clark’s car as well as on the cell phones belonging to Clark, McClain, and

Carson. In his testimony, Sedwick explained that his analysis revealed that Clark’s car and the

phones associated with Clark and Carson were near the sites of the five charged offenses around

the time that those offenses occurred. Similarly, Sedwick explained that his analysis showed

that McClain’s phone was near the site of the robberies occurring on December 4, 2015, and

                                                    4
December 6, 2015, around the time those offenses occurred. Next, Sedwick testified that he

examined the phone and car records for the day of the Exxon robbery and that his analysis

showed that the phone and vehicle associated with Clark were near the Exxon station at the time

of the robbery but that the phone associated with McClain was not near the location of the

robbery.

               Finally, the State called Manny Fuentes to the stand to discuss the results of a

forensic data extraction that he was able to perform on Carson’s phone. During his testimony,

Fuentes discussed text messages that were sent by and to Carson’s phone during November and

December of 2015. For example, Fuentes testified that the following messages were sent among

Carson’s, McClain’s, and Clark’s phones: “Tryna make sum bread tonight”; “U know anybody

with bread we can snag n grab”; “That’s what I figured n bring that piece u had from the other

day”; “The first part is real easy where going to get some ‘dirtys’, then to a small place we’ll be

in and out in under a min a 3man job”; and “I was trying to say today is Tuesday n Popeyes got

bread.”

               After both sides rested and closed, the jury found Clark guilty of all five charged

offenses.


                                         DISCUSSION

               In his first two issues on appeal, Clark contends that the district court erred by

admitting evidence pertaining to the traffic stop conducted after the robberies at issue because

the evidence was impermissible extraneous-offense evidence and because the prejudicial value

of the evidence outweighed any probative value. In his third issue on appeal, Clark argues that




                                                5
the district court erred by admitting evidence regarding the robbery of the Exxon convenience

store because the evidence was impermissible extraneous-offense evidence.


Traffic Stop

                 At the start of the trial and outside the presence of the jury, the State explained to

the district court that it intended to call police officers to discuss how after performing a traffic

stop of Clark’s vehicle on December 9, 2015, and observing what was seen inside the vehicle in

plain view, the police suspected that the vehicle’s occupants were involved in the five charged

offenses and subsequently searched the vehicle and Clark’s home. At the hearing, the State also

explained that there was another robbery in the area just prior to the traffic stop, that the three

occupants of the vehicle matched the description of the individuals involved in that robbery, that

there was a trial regarding those charges, and that Clark was found not guilty of that offense.

However, the State explained that it did not intend to mention that contemporaneous robbery or

argue that Clark and the other occupants were fleeing from that offense shortly before the traffic

stop was initiated; instead, the State explained that it just wanted to mention that the traffic stop

occurred in an effort to show how the three occupants became suspects through the police

investigation.

                 In response, Clark argued that the evidence was irrelevant, that the evidence

was impermissible extraneous-offense evidence, and that the prejudicial value outweighed

the probative value. The district court overruled Clark’s objections. Following those rulings,

Officers Banta and Villarreal provided testimony regarding the traffic stop and the items that

were seen in the car during the traffic stop, and Officer Leal testified regarding the search of




                                                   6
Clark’s car that the investigating officers performed after obtaining a search warrant following

the traffic stop.


Relevance and Background Contextual Evidence

                Appellate courts review a trial court’s ruling regarding the admission or exclusion

of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.

App. 2011).         Under that standard, a trial court’s ruling will only be deemed an abuse of

discretion if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez

v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld

provided that the trial court’s decision “is reasonably supported by the record and is correct under

any theory of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim.

App. 2005). In addition, an appellate court reviews the trial court’s ruling in light of the record

before the court “at the time the ruling was made.” Khoshayand v. State, 179 S.W.3d 779, 784

(Tex. App.—Dallas 2005, no pet.).

                Under the Rules of Evidence, “[r]elevant evidence is admissible unless” provided

otherwise by “the United States or Texas Constitution,” “a statute,” the Rules of Evidence, or

“other rules prescribed under statutory authority,” and evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be without the evidence” and if

“the fact is of consequence in determining the action.” Tex. R. Evid. 401, 402. However,

“[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with the character,”

but this type of “evidence may be admissible for another purpose, such as proving motive,


                                                  7
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Id. R. 404(b). “Rule 404(b) . . . is a rule of inclusion rather than exclusion,” Chaparro

v. State, 505 S.W.3d 111, 115-16 (Tex. App.—Amarillo 2016, no pet.), and the “enumerated

exceptions” listed under Rule 404(b) “are neither mutually exclusive nor collectively

exhaustive,” Torres v. State, 543 S.W.3d 404, 420 (Tex. App.—El Paso 2018, pet. ref’d).

Accordingly, courts have explained that “extraneous-offense evidence, under Rule 404(b), is

admissible to rebut a defensive theory raised in an opening statement or raised by the State’s

witnesses during cross-examination.” Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—

Houston [14th Dist.] 2008, no pet.). Also, “extraneous offense evidence may be admissible as

contextual evidence.” Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.]

2003, pet. dism’d).

               There are two forms of contextual evidence: “(1) ‘same transaction contextual

evidence,’ which refers to other offenses connected with the primary offense; and

(2) ‘background contextual evidence’ which includes all other general background evidence.”

Blakeney v. State, 911 S.W.2d 508, 514 (Tex. App.—Austin 1995, no pet.) (internal footnote

omitted) (quoting Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991), superseded on

other grounds by Tex. Code Crim. Proc. art. 38.37). “[B]ackground contextual evidence ‘fill[s]

in the background of the narrative and give[s] it interest, color, and lifelikeness.’” Aguillen v.

State, 534 S.W.3d 701, 712 (Tex. App.—Texarkana 2017, no pet.) (quoting Mayes, 816 S.W.2d

at 87) (alterations in Aguillen), and “provides an exception to rule 404(b)’s general proscription

because its relevance stems not from a consequential fact, but because ‘it illuminates a

circumstance otherwise dimly perceived by the factfinder,’” Lorence v. State, No. 02-15-00398-

CR, 2017 WL 4172077, at *11 (Tex. App.—Fort Worth Sept. 21, 2017, pet. ref’d) (mem. op.,

                                                 8
not designated for publication) (quoting Mayes, 816 S.W.2d at 85).          “Typically, so-called

‘background’ evidence is admissible, not because it has particularly compelling probative value

with respect to the elements of the alleged offense, but simply because it provides the jury with

perspective, so that the jury is equipped to evaluate, in proper context, other evidence that more

directly relates to elemental facts.” Langham v. State, 305 S.W.3d 568, 580 (Tex. Crim. App.

2010). However, “[c]haracter evidence offered on the rationale that it is ‘background’ evidence

helpful to a jury . . . is not admissible as one of the alternative purposes such evidence may be

introduced under Rule 404(b).” Mayes, 816 S.W.2d at 88. In other words, “[b]ackground

contextual evidence . . . is not admissible under Rule 404(b) when it includes an impermissible

character component.” Blakeney, 911 S.W.2d at 514; see Miller v. State, 2 S.W.3d 475, 480

(Tex. App.—Tyler 1999, no pet.).

               On appeal, Clark contends that the evidence pertaining to the traffic stop was

irrelevant, was impermissible character evidence, and was not admissible as an exception under

Rule 404(b) because it was not background information necessary for the jury’s consideration.1

Regarding the potential use of the evidence as background contextual evidence, Clark argues that

the traffic stop was initiated because the police believed that he and the occupants had been

involved in a robbery “that [wa]s separate and distinct from each robbery tried under the instant

cause number” and were fleeing the scene of that offense. As such, Clark contends that the

evidence contains an impermissible character component and that the Court of Criminal Appeals


       1
         During the trial, the State also argued that the evidence was admissible as evidence that
Clark, Carson, and McClain were acting in concert or in a combination as charged in the
indictment and as evidence that the three had a plan. See Tex. R. Evid. 404(b). In his brief,
Clark argues that the evidence was not admissible for those purposes. Given our ultimate
resolution that the evidence was admissible as background contextual evidence, we need not
reach these arguments. See Tex. R. App. P. 47.1.
                                                9
has explained that character evidence may not be admitted as background contextual evidence.

See Mayes, 816 S.W.2d at 87-88. Moreover, Clark argues that evidence pertaining to the traffic

stop was not necessary to prove “the facts of consequence” because it occurred days after the

alleged robberies at issue and because he “did not make an issue during the trial of ‘how’ or

‘why’ [he] was made the focus of the investigation for the instant cases.” Accordingly, Clark

urges that the evidence amounted to inadmissible character evidence or inadmissible extraneous-

offense evidence.

               Initially, we note that although the traffic stop may have commenced in part by

the possibility that Clark and the occupants had been involved in a robbery on that day, the State

explained that it would not mention that to the jury. Instead, Officer Banta explained that he

initiated the traffic stop after observing Clark fail to maintain his lane and to properly stop at a

stop sign. Accordingly, we do not agree with Clark’s suggestion that the evidence regarding the

traffic stop presented the type of character evidence that the Court of Criminal Appeals has

explained may not be admitted as background contextual evidence. See id. at 88 (concluding

that evidence that defendant was “housed in administrative segregation” in prison at time of

alleged offense constituted background evidence but “also possessed a character component”

because evidence conveyed that defendant “was ‘a threat to the general population of the prison,

a threat to staff, threat to other inmates, and generally cannot get along’”); see also Tex. R.

Evid. 404(b) (providing that evidence of crime or wrong is not admissible to prove character to

show that person acted consistently with that character on particular occasion).

               Moreover, although the evidence pertaining to the traffic stop may not itself have

been relevant to elements of the alleged offenses, the evidence did help to establish how the

police linked Clark and the occupants to the charged offenses. Before evidence pertaining to the

                                                10
traffic stop was admitted, various witnesses testified regarding the five offenses, but no one’s

testimony linked any suspect to those offenses; in fact, the witness testimony and surveillance

footage demonstrated that the offenders were wearing clothing that concealed their identities

during each offense. Further, the evidence established that after detaining Clark the officers

observed in plain view items that appeared to be similar to the items that the offenders used

in the robberies and obtained warrants to search the car and Clark’s home based on

those observations.    Evidence regarding those searches was presented that ultimately tied

Clark, Carson, and McClain to the charged offenses. See Lorence, 2017 WL 4172077, at *12

(determining that evidence that defendant “was a part of a murder-for-hire scheme” was

marginally relevant and admissible as background contextual evidence because “[o]therwise[]

[a]ppellant’s alleged participation in the crime would have appeared random, occurring in a

vacuum and making little sense”); see also DeLeon v. State, 937 S.W.2d 129, 135-36 (Tex.

App.—Waco 1996, pet. ref’d) (determining that trial court did not abuse its discretion by

admitting evidence that defendant was in stolen car as background contextual evidence because

it explained his motive for attacking police officer “at a simple traffic stop for speeding”).

               In light of the preceding, we conclude that the district court did not abuse its

discretion by concluding that the evidence pertaining to the traffic stop was relevant and

was admissible as background contextual evidence. See Mell v. State, No. 07-14-00207-CR,

2015 WL 5244423, at *2-3 (Tex. App.—Amarillo Sept. 3, 2015, no pet.) (mem. op., not designated

for publication) (concluding that trial court did not abuse its discretion by determining that

evidence was admissible as permissible “background contextual evidence” where “the jurors

well could have been confused by the officer’s immediate arrest of a passenger in a vehicle

stopped for a minor traffic offense”); see also Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

                                                 11
App. 2011) (stating that “[a] trial court’s 404(b) ruling admitting evidence is generally within . . .

zone [of reasonable disagreement] if there is evidence supporting that an extraneous transaction

is relevant to a material, non-propensity issue”).


Rule 403

               As set out above, Clark also objected to the admission of the evidence pertaining

to the traffic stop under Rule of Evidence 403.

               Rule 403 provides that relevant evidence may be excluded “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. “Under Rule 403, it is presumed that the probative value of

relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of

evidence only when there is a clear disparity between the degree of prejudice of the offered

evidence and its probative value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.

2009) (footnotes and internal quotation marks omitted). Accordingly, “the plain language of

Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence

is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to

be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation

omitted). Moreover, reviewing courts should afford trial courts a high level of deference regarding

admissibility determinations under Rule 403. See Robisheaux v. State, 483 S.W.3d 205, 218

(Tex. App.—Austin 2016, pet. ref’d).

               When evaluating the admissibility of evidence under Rule 403, courts should

balance the following factors:


                                                  12
       (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 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) (footnote omitted); see

Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that “probative value”

refers to how strongly evidence makes existence of fact more or less probable and to how much

proponent needs evidence and that “unfair prejudice” considers how likely it is that evidence

might result in decision made on improper basis, including emotional one).

               On appeal, Clark contends that the background contextual evidence pertaining to

the traffic stop should have been excluded under Rule 403 because he “did not raise any issue”

during his opening statement or cross-examination of witnesses regarding how the investigation

of Clark began. Further, Clark argues that the evidence regarding the traffic stop established that

Clark was in the same car with the individuals that he was alleged to have been acting in a

combination with, that they were in possession of items and clothing similar to that seen on the

surveillance recordings, and that they were wearing some items of clothing that were similar to

clothing the suspects were seen wearing on the recordings. Moreover, Clark asserts that the

recovered items “were the only real evidence to put a name to the robber that also wore similar

items.” Accordingly, Clark urges that “[a]ny probative value in admitting the evidence . . . as

contextual ‘background’ evidence . . . is substantially outweighed by [the] prejudicial effect it

had to have on the jury.”




                                                13
               We do not agree with Clark’s broad assertion regarding what the extraneous-

offense evidence was. The alleged misconduct at issue was the behavior that resulted in the police

initiating the traffic stop. Although clothing and other items were observed in Clark’s car after

the traffic stop occurred, the evidence pertaining to the contents of the car was not extraneous-

offense evidence and was instead evidence regarding the offenses for which Clark was being

tried. Accordingly, our analysis is limited to the evidence pertaining to the traffic stop.

               Turning to the 403 factors, we note that although the evidence pertaining to the

traffic stop does not help to establish the elements of the charged offenses, the evidence did, as

set out earlier, help establish how the police discovered the items recovered during the search of

Clark’s car and home and, thereby, linked Clark to the charged offenses. Accordingly, the

district court could have reasonably determined that the probative value, although perhaps minor,

either weighed in favor of admission or was neutral regarding the admission.

               Regarding the State’s need for the evidence, we note that the State did present

other evidence linking Clark to the five charged offenses through the testimony of witnesses

indicating that Clark’s car and phone as well as McClain’s and Carson’s phones were near the

locations of the charged offenses during the relevant time periods. However, when the district

court made its ruling, no other evidence had been admitted that affirmatively linked Clark to the

five offenses. See Khoshayand, 179 S.W.3d at 784. Accordingly, the district court could have

reasonably concluded that the State’s need for the evidence weighed in favor of its admission.

               As for the potential of the evidence to suggest a decision on an improper basis,

see Gigliobianco, 210 S.W.3d at 641 (stating that evidence might encourage decision on improper

basis if “it arouses the jury’s hostility or sympathy . . . without regard to the logical probative

force of the evidence”), we note that Officer Banta testified that he initiated the traffic stop

                                                 14
because he observed Clark commit traffic violations. Moreover, nothing in the testimony from

the officers regarding the traffic stop itself was inflammatory or otherwise prejudicial beyond

stating that Clark potentially committed two traffic offenses. Cf. Norwood v. State, No. 03-13-

00230-CR, 2014 WL 4058820, at *5 (Tex. App.—Austin Aug. 15, 2014, pet. ref’d) (mem. op.,

not designated for publication) (explaining that “[w]hen the extraneous offense is no more

heinous than the charged offense, evidence concerning the extraneous offense is unlikely to

cause unfair prejudice”). Accordingly, the district court could have reasonably determined that

the potential for the evidence to result in a decision on an improper basis either weighed in favor

of admission or was neutral regarding admission.

               Turning to the potential for the evidence to confuse the jury and for the jury to

give undue weight to the evidence, the district court could have reasonably concluded that the

evidence regarding the traffic stop would not “distract the jury from the main issues in the case”

because the evidence linked Clark to the charged offenses. See Gigliobianco, 210 S.W.3d

at 642. Similarly, given that the evidence did not address a complex subject matter and was

instead a limited description of a traffic stop, the district court could have reasonably concluded

that the jury would not give undue weight to the evidence. Cf. id. at 641 (explaining that

scientific evidence is one type of evidence that might mislead jury not properly equipped to

consider probative value). Accordingly, the district court could have reasonably determined that

these factors weighed in favor of admission.

               Regarding the time needed to present the evidence, we note that the State

explained that it intended to limit its discussion to the fact that the traffic stop occurred and did

not intend to discuss the other robbery that Clark was allegedly fleeing from at the time that the

traffic stop happened. Consistent with that assessment, Officers Banta, Villarreal, and Leal

                                                 15
briefly mentioned the traffic stop in their testimonies, and the amount of testimony discussing the

traffic stop was a small portion of the reporter’s record, which was hundreds of pages in length.

Accordingly, the district court could have reasonably determined that the time needed to develop

the evidence weighed in favor of admission of the evidence.

               Given our standard of review, the presumption in favor of admissibility, and the

resolution of the factors discussed above, we cannot conclude that the district court abused its

discretion by overruling Clark’s Rule 403 objection. Cf. Work v. State, No. 03-18-00244-CR,

2018 WL 2347013, at *12 (Tex. App.—Austin May 24, 2018, pet. granted) (mem. op., not

designated for publication) (affirming trial court’s ruling denying Rule 403 objection when

majority of factors weighed in favor of admission of evidence).

               For all the reasons previously given, we overrule Clark’s first and second issues

on appeal.


Exxon Robbery

               During the trial, the State asked the district court to admit evidence regarding

the robbery of an Exxon station on November 30, 2015. The State asserted that Clark and

Carson committed the offense and that surveillance footage from the store captured images of

Clark’s face. When discussing why the evidence should be admitted, the State argued that Clark

opened the door to the testimony by making identity an issue. The district court determined

that identity had become an issue “through the opening statement or through the development

of the evidence” and that the evidence would be relevant to whether Clark committed the

charged offenses.




                                                16
               In his final issue on appeal, Clark contends that the district court erred by

admitting evidence regarding the robbery of the Exxon station. Specifically, Clark argues that

the district court erred because he did not make identity an issue and that, therefore, the

extraneous evidence was not admissible to establish his identity as one of the offenders.

Alternatively, Clark argues that even if identity was an issue, the evidence of the Exxon robbery

should not have been admitted because there was nothing distinctive about the charged offenses

or the extraneous offense to tie those offenses together and establish the identity of the

perpetrators. More specifically, Clark asserts that the number of offenders involved in the Exxon

incident differed from the five charged offenses, that the colors of the hoodies used in the

various offenses differed, that the clothing of the offenders changed, that none of the clothing

was distinctive, that none of the offenses occurred at the same time of day, and that the

robberies occurred at different types of businesses or locations (e.g., roadway, restaurant, and

convenience stores).

               As set out in the previous issues, extraneous-offense evidence may be admitted

under Rule 404(b) to prove identity or to rebut a defensive theory presented during a defendant’s

opening argument or through his cross-examination of the witnesses. See Tex. R. Evid. 404(b);

Bargas, 252 S.W.3d at 890. In this case, the district court did not abuse its discretion by

determining that the identity of the offenders was at issue. Although there was no dispute

regarding whether the offenses occurred, the issue in this case was whether the jury could have

determined beyond a reasonable doubt that Clark, McClain, and Carson were the individuals

responsible for the five offenses. In his opening statement, Clark pointed out that identity was an

issue when he stated as follows:



                                                17
       But I want you to keep one thing in mind as you go forward. Their burden is not
       to prove his car was there. Their burden is not to prove that his phone was
       anywhere. Their burden is to prove that he was there. Okay? And as you listen
       to all the witnesses, I want you to tune in on how they can identify if he was
       present at any of those places. And at the very end you’re going to find they did
       not prove that he was at any of these places.


               Similarly, when cross-examining the State’s witnesses, Clark questioned whether

Clark’s identity had been established. For example, when Officer Leal testified that she was able

to determine whether any of the offenders depicted in the surveillance recordings was Clark,

Clark objected, stated that there was no proof to support Officer Leal’s assertions, and then

questioned Officer Leal about the clothing appearing in the surveillance footage and any DNA

testing performed in the case. In her testimony, Officer Leal admitted that no DNA testing was

performed on any of the recovered items of clothing and that the types of clothing worn by the

offenders were common. In light of the preceding and other elicited testimony, the district court

could have reasonably determined that the issue of the identity of the offenders had been raised.

               However, “[m]erely raising the issue of identity does not automatically render the

extraneous evidence admissible.” Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006).

“When the extraneous offense is introduced to prove identity by comparing common

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

defendant’s ‘distinctive and idiosyncratic manner of committing criminal acts.’” Id. (quoting

Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)). In other words, “[w]hen identity

is a material issue, there is a great need to establish the degree of similarity in the extraneous

matters to prove modus operandi,” which means that “the pattern and characteristics of the

charged crime and the extraneous offenses are so distinctively similar that they constitute a

‘signature.’” Chaparro, 505 S.W.3d at 116 (quoting Segundo v. State, 270 S.W.3d 79, 88 (Tex.

                                                18
Crim. App. 2008)). Common characteristics that may make a charged offense similar to an

extraneous offense include the “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.” Segundo, 270 S.W.3d at 88. “No rigid rules dictate what constitutes sufficient

similarities,” and it is usually “the accretion of small, sometimes individually insignificant,

details that marks each crime as the handiwork or modus operandi” of an individual. Id.

               During the trial, the State presented evidence that five offenses occurred between

November 17, 2015, and December 6, 2015, that the offenses occurred between 8:00 p.m. and

9:30 p.m., that the offenses were committed by three individuals wearing hoodies and ski masks,

that some of the offenders were carrying handguns, and that they pointed the weapons at the

employees of the places being robbed. Moreover, evidence was presented establishing that four

of those offenses involved the robbery of three convenience stores and a fast food restaurant by

individuals wearing gloves. In each of those robberies, at least one person was wearing a black

hoodie. In addition, during the robbery of two of the convenience stores, an individual wearing a

black hoodie grabbed food from a food aisle before leaving the store. All five of the charged

offenses occurred in Austin or in the surrounding areas. Similarly, the Exxon robbery occurred at

approximately 8:00 p.m. near the Austin area. Although there were only two offenders involved

in this robbery and although one was not wearing a ski mask, both were wearing dark hoodies

and gloves, and one of the individuals was carrying a handgun and pointed it at the store clerk.

In addition, the offender not wearing a ski mask went down a food aisle and took several items

before leaving the store. 2


       2
         When objecting to the admission of this extraneous-offense evidence, Clark did not
object under Rule of Evidence 403. However, in his brief, Clark contends that an analysis under
                                               19
Rule 404(b) must assess whether the probative value of the extraneous-offense evidence is
substantially outweighed by the danger of unfair prejudice. As support for that proposition,
Clark refers to De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009). In that case, the
Court of Criminal Appeals did state that a trial court’s ruling admitting extraneous-offense
evidence will be upheld “if the evidence shows that 1) an extraneous transaction is relevant to a
material, non-propensity issue, and 2) the probative value of that evidence is not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.”
Id. at 344. However, in that case, the defendant objected under Rules 404(b) and 403. Id. at 340,
348. Accordingly, the section of the De La Paz opinion highlighted by Clark may have been a
summary of the requirements under both Rules 404(b) and 403 rather than an expression that an
appellate issue pertaining to an objection under Rule 404(b) alone requires a weighing of the
prejudicial and probative value of the disputed evidence.

         Indeed, prior to De La Paz, the Court of Criminal Appeals explained that once a “trial
judge has ruled on whether the evidence is relevant beyond its character conformity value, he has
ruled on the full extent of the opponent’s Rule 404(b) objection” and that “[t]he opponent must
then make a further objection based on Rule 403, in order for the trial judge to weigh the
probative and prejudicial value of the evidence.” Santellan v. State, 939 S.W.2d 155, 169 (Tex.
Crim. App. 1997); see Johnston v. State, 145 S.W.3d 215, 220 (Tex. Crim. App. 2004)
(explaining that potential for unfair prejudice stemming from extraneous offense needs to be
considered only if objection under Rule 403 is made in addition to objection under Rule 404);
Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990) (on reh’g) (stating that
defendant must object under both Rules to preserve error regarding prejudicial nature of
extraneous-offense evidence). Consistent with that statement, this Court and other courts of
appeals have explained that when a defendant objects under Rule 404(b) alone, the defendant
does not preserve a complaint regarding whether the evidence should have been excluded
because it was substantially more prejudicial than probative. See Swain v. State, No. 01-18-00377-
CR, 2019 WL 2345415, at *5 (Tex. App.—Houston [1st Dist.] June 4, 2019, pet. ref’d) (mem.
op., not designated for publication); Lewis v. State, No. 03-01-00512-CR, 2002 WL 1723778, at
*2, *5 (Tex. App.—Austin July 26, 2002, pet. ref’d) (op., not designated for publication).
However, the Court of Criminal Appeals has also stated that there is a “Rule 403 balancing test
that is an inherent part of Rule 404(b).” Castaldo v. State, 78 S.W.3d 345, 350 (Tex. Crim. App.
2002); see Garcia v. State, No. 14-04-00399-CR, 2006 WL 664182, at *3 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (mem. op., not designated for publication).

        Even if we are required to consider the Rule 403 factors when performing our review of
an admissibility determination under Rule 404(b), we would conclude that the probative value of
the evidence pertaining to the Exxon robbery was not substantially outweighed by the danger of
“unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” See Tex. R. Evid. 403. As discussed above, the evidence was
relevant to establish Clark’s identity as one of the offenders for the charged offenses. At the time
that the district court made its ruling, the only evidence potentially linking Clark to the charged
offenses was the discovery of items in his car and in his home that were similar to items used in
the offenses and the testimony from Officer Leal indicating that she was able to ascertain which
                                                20
               In light of these similarities, we cannot conclude that the district court abused its

discretion by admitting the extraneous-offense evidence. Cf. Swain v. State, No. 01-18-00377-

CR, 2019 WL 2345415, at *4 (Tex. App.—Houston [1st Dist.] June 4, 2019, pet. ref’d) (mem.

op., not designated for publication) (determining that offenses were “sufficiently similar” to

warrant admission where robberies occurred within one hour of each other, involved individuals

wearing similar clothing, had similar victims being held at gunpoint, and had other similarities);

Hill v. State, No. 01-16-00595-CR, 2017 WL 2290201, at *5 (Tex. App.—Houston [1st Dist.]

May 25, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding that extraneous

offense was sufficiently similar where robberies occurred within one day of each other, where

robberies were committed “in the Houston metropolitan area,” where robberies “occurred at a

gas station with a convenience store,” where robbers wore masks, where robbers “demanded

money at gunpoint from the cashiers,” where robbers used “black handgun,” and where robbers

wore dark hoodie, baseball cap, and “a black mask”); see also Page, 213 S.W.3d at 338

(explaining that “extraneous-offense evidence” does not need “to be completely identical to the

charged offense to be admissible to prove identity”).

               For these reasons, we overrule Clark’s third issue on appeal.




of the masked offenders was Clark from the surveillance footage. Moreover, the misconduct
depicted on the recording from the Exxon station was no more gruesome or heinous than the
misconduct captured on the surveillance footage for the charged offenses, and the district court
provided a limiting instruction before the jury was able to view the Exxon footage. Additionally,
the amount of time devoted to the extraneous offense was brief compared to the amount of time
spent on the charged offenses, and the evidence did not involve a complicated or otherwise
confusing subject matter and was related to the charged offenses.
                                                21
                                      CONCLUSION

              Having overruled all of Clark’s issues on appeal, we affirm the district court’s

judgments of conviction.



                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: January 15, 2020

Do Not Publish




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