Opinion issued October 8, 2015




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-14-00902-CR
                         ———————————
                   KENNETH ALLEN ROSS, Appellant
                                      V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 230th District Court
                          Harris County, Texas
                      Trial Court Case No. 1399343


                     MEMORANDUM OPINION

     Appellant Kenneth Allen Ross was indicted for the first-degree felony

offense of aggravated robbery, 1 and the indictment alleged an enhancement


1
     See TEX. PENAL CODE ANN. § 29.03 (West 2011).
paragraph for theft by receiving stolen property. 2 The jury convicted appellant of

aggravated robbery and, after finding the enhancement paragraph to be “true,”

assessed appellant’s punishment at forty years’ confinement and a $5,000 fine. In

his sole point of error, appellant contends that the trial court abused its discretion in

admitting evidence of an extraneous offense during the punishment phase of trial.

We modify the trial court’s judgment to reflect the jury’s finding that the

enhancement paragraph was “true,” and we affirm the trial court’s judgment as

modified.

                                     Background

      On August 26, 2013, appellant entered a Family Dollar Store located on

Bellaire Boulevard shortly before closing, forced an employee and the assistant

manager into the bathroom at gunpoint, and ordered the manager to give him the

money from the cash register. The employee, Jaymil Johnson, called 911, and

appellant fled out the back door.

      Houston Police Department Officer James Swank arrived at the scene and

saw appellant running out of the back of the store. When Officer Swank shone his

flashlight in appellant’s direction, appellant dropped a plastic Family Dollar bag

containing cash and rolls of coins and sat down on the ground. Officer Swank

discovered a gun and a black cap lying next to the bag.             Johnson identified

2
      The record reflects that the State abandoned a second enhancement paragraph for
      robbery.
                                           2
appellant as the man who had just robbed the store and later identified appellant in

court.     The store manager and assistant manager also identified appellant in

separate photo arrays two days after the robbery.

         At the conclusion of the guilt/innocence phase of the trial, the jury convicted

appellant of aggravated robbery. During the punishment phase of the trial, the

State presented evidence of two unadjudicated extraneous offenses as well as

evidence of appellant’s prior convictions from 1988 to the present, including

convictions for criminal trespass, theft by receiving stolen property, conspiracy,

theft, robbery, and aggravated assault.

   1. First Extraneous Offense

         Kierra Pipkin and Shondria Laymond testified that on June 21, 2013, two

armed men robbed the Family Dollar store on South Post Oak Boulevard where

they were working. Two months after the robbery, police showed photo arrays to

Pipkin and Laymond. Pipkin was unable to identify either perpetrator. Laymond

testified that she did not identify anyone in the array at the time because she was

not 100% sure but she stated at trial that she was 70% sure then and at the time of

trial that one of the men who had robbed the store was in the number three spot in

the array. Appellant was the man in the number three spot.

         Following this testimony, defense counsel argued that the State’s evidence

was insufficient to show beyond a reasonable doubt that appellant committed the

                                            3
June 21 robbery and, therefore, the jury should be instructed to disregard it. The

trial court initially indicated its intent to give the requested instruction; however,

following a break, the trial court denied the motion but orally instructed the jury

that it could only consider the extraneous offense if the evidence proved beyond a

reasonable doubt that appellant committed the offense.

    2. Second Extraneous Offense

      Crespin Guerrero, an assistant manager of a Dollar Tree store in Webster,

Texas, testified that on June 3, 2013, two armed men robbed the store shortly after

closing time. Nearly three months after the robbery, police showed a photo array

to Guerrero from which Guerrero identified appellant as one of the men who had

robbed the store.    Guerrero also identified appellant in court as one of the

perpetrators.

      At the conclusion of the punishment phase, the jury found the enhancement

paragraph in the indictment true and assessed appellant’s punishment at forty

years’ confinement and a $5,000 fine. 3

                                     Discussion

      In his sole point of error, appellant contends that the trial court abused its

discretion in admitting evidence that he was involved in the June 21, 2013 robbery


3
      See TEX. PENAL CODE ANN. § 12.32 (West 2011) (stating range of punishment for
      first-degree felony offense as five to ninety-nine years’ confinement and up to
      $10,000 fine).
                                          4
because neither witness to the robbery identified him as one of the perpetrators.

He further argues that admission of this evidence harmed him because it resulted in

an increased sentence.

   A. Admission of Extraneous Offense

      Article 37.07 of the Texas Code of Criminal Procedure establishes the

admissibility of evidence during the punishment phase of trial. See TEX. CODE

CRIM. PROC. ANN. art. 37.07 (West Supp. 2014); Henderson v. State, 29 S.W.3d

616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Subsection 3 of

Article 37.07 provides that the State may offer “evidence of an extraneous crime or

bad act that is shown beyond a reasonable doubt by evidence to have been

committed by the defendant or for which he could be held criminally responsible,

regardless of whether he has previously been charged with or finally convicted of

the crime or act.” TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). During the

punishment phase, evidence of an extraneous offense is offered to assist the trial

court or the jury in determining punishment. Mitchell v. State, 931 S.W.2d 950,

954 (Tex. Crim. App. 1996) (en banc).

      Whether an extraneous offense or bad act was established beyond a

reasonable doubt is a question of fact for the trier of fact, not a preliminary

question of admissibility for the trial court. See Mitchell, 931 S.W.2d at 954. The

trial court satisfies its responsibility by making an initial determination that a jury

                                          5
could reasonably find beyond a reasonable doubt that the defendant committed the

extraneous offense. Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 2000),

aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); see Mitchell, 931 S.W.2d at 954.

This threshold determination is not a finding by the court that the State has proved

an extraneous bad act beyond a reasonable doubt, but is instead a finding that

sufficient evidence exists from which a jury could reasonably so find. See Arzaga

v. State, 86 S.W.3d 767, 781 (Tex. App.—El Paso 2002, no pet.); Mann, 13

S.W.3d at 94. We review a trial court’s decision to admit an extraneous offense

during the punishment phase under the abuse of discretion standard. Mitchell, 931

S.W.2d at 953. The reviewing court may reverse the trial court’s decision only if

the ruling is outside the zone of reasonable disagreement. Agbogwe v. State, 414

S.W.3d 820, 830–31 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

      Appellant contends that the trial court abused its discretion in its initial

determination that the jury could have found beyond a reasonable doubt that

appellant committed the first extraneous offense, the June 21, 2013 robbery,

because neither Pipkin nor Laymond positively identified appellant as one of the

men who robbed the store. At trial, Laymond testified that she did not identify

appellant as one of the robbers at the time because “I wasn’t 100% sure.”

Appellant also points out that neither witness identified appellant in court.

Although Laymond’s tentative identification of appellant as one of the robbers was

                                         6
likely sufficient, we nevertheless conclude that the trial court’s error, if any, in

admitting evidence of the June 21, 2013 robbery was harmless.

    B. Harmless Error Analysis

      The erroneous admission of extraneous offense evidence under section 3(a)

is non-constitutional harm error and is analyzed to determine whether the error

affected a substantial right of the defendant. TEX. R. APP. P. 44.2(b); Peters v.

State, 31 S.W.3d 704, 722 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

Substantial rights are “affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). If the error had no, or only a slight influence on the jury’s

verdict, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998).

      Our harmless error analysis entails consideration of the following four

factors: (1) the source and nature of the error; (2) whether and to what extent the

state emphasized the error; (3) the probable collateral implications of the error; and

(4) the probable weight a juror would place on the error. Higginbotham v. State,

807 S.W.2d 732, 735 (Tex. Crim. App. 1991); Hoffman v. State, 874 S.W.2d 138,

141 (Tex. App.—Houston [14th Dist.] 1994, writ ref’d).4 The focus of a harm



4
      The fifth factor considered by the courts in Higginbotham and Hoffman—whether
      finding the error harmless would encourage the State to repeat it with impunity—
                                          7
analysis is on the error itself to determine whether the error tainted the jury’s

otherwise objective assessment of the evidence. Hoffman, 874 S.W.2d at 141.

      We review the source and nature of the introduction of the allegedly

improper evidence to determine whether the state intended to taint the trial by

offering inadmissible evidence. See id. Here, the State did not aim to taint the

judicial process with evidence of the June 21 robbery because it is substantially

similar to other properly admitted evidence of a similar nature about which

appellant does not complain, namely, the June 3, 2013 robbery of a Dollar Tree

store. Cf. Apolinar v. State, 106 S.W.3d 407, 415 (Tex. App.—Houston [1st Dist.]

2003), aff’d 155 S.W.3d 184 (Tex. Crim. App. 2005) (holding that error in

admitting evidence with insufficient notice under article 37.07 § 3(g) was harmless

due in part to properly admitted evidence of same nature). Thus, we conclude that

this factor weighs in favor of finding the error harmless.

      Next, we review the amount of emphasis which the State placed on the

extraneous offense.     Although there was a significant amount of testimony

regarding the June 21, 2013 robbery presented during the punishment phase, any

harm was cured by the trial court’s oral instruction immediately after presentation

of this evidence as well as in its written instruction in the jury charge that the jury

should not consider evidence of an extraneous offense unless it believed beyond a

      is no longer a proper consideration when conducting a harm analysis under Rule
      44.2(b). See Snowden v. State, 353 S.W.3d 815, 821–22 (Tex. Crim. App. 2011).
                                          8
reasonable doubt that appellant committed the offense or bad act. See Hawkins v.

State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004) (finding that oral instruction

coupled with written instruction in jury charge was sufficient to cure harm). 5 We

conclude that this factor weighs in favor of finding the error harmless.

      The factor assessing the collateral implications of the error refers mainly to

such potential grave results as damaging an accused’s sole defense.                   See

Higginbotham, 807 S.W.2d at 737; Hoffman, 874 S.W.2d at 141. The extraneous

offense complained of here was raised in the punishment phase and identity was no

longer at issue.6 Therefore, we find no such implication here. See Hoffman, 874

S.W.2d at 141; cf. Higginbotham, 807 S.W.2d at 737 (noting that introduction of

calm confession allowing State to erode defendant’s remorse was harmful

collateral consequence). Further, evidence regarding the June 21 robbery was not

introduced to erode any of appellant’s defenses; rather, it was intended to support

other properly admitted evidence. Thus, we conclude that this factor weighs in

favor of finding the error harmless.




5
      Although Hawkins addressed whether the trial court had abused its discretion in
      denying a mistrial, the court noted that its analysis was substantially similar to a
      non-constitutional harm analysis. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
      Crim. App. 2004).
6
      Defense counsel conceded during the punishment phase that “[i]dentity is not an
      issue here anymore.”
                                           9
      Finally, we also review the probable weight the jury placed on the

extraneous offense. During the punishment phase, the jury is allowed to consider

all of the evidence presented to it, including the evidence adduced at the

guilt-innocence phase. See Apolinar, 106 S.W.3d at 415; King, 953 S.W.2d at 272.

Here, the State introduced evidence of another uncharged aggravated robbery as

well as appellant’s numerous prior convictions dating back to 1988, including one

for robbery. Thus, the jury had before it evidence of appellant’s lengthy criminal

history. See King, 953 S.W.2d at 273 (noting jury could observe escalation in

crimes from defendant’s chronological criminal history to assess greater

punishment). The trial court also provided oral and written instructions to the jury

to disregard the extraneous offense evidence if the State did not prove beyond a

reasonable doubt that appellant committed the offense. Even with these matters

before it, the jury assessed punishment at forty years’ confinement, considerably

less than the maximum prison time of ninety-nine years. See TEX. PENAL CODE

ANN. § 12.32 (West 2011); 7 Apolinar, 106 S.W.3d at 415 (noting that jury’s

assessment of thirty-five years’ confinement was far less than maximum of

ninety-nine years to life and concluding that complained-of admission of



7
      The trial court instructed the jury that if it found the enhancement paragraph true,
      it should assess punishment at confinement for not less than fifteen years nor more
      than ninety-nine years or life.

                                           10
extraneous offense was harmless). We find that this element weighs in favor of

finding the error harmless.

      Accordingly, we conclude that even if the admission of evidence related to

the June 21, 2013 robbery was in error, its admission was harmless. See Johnson,

967 S.W.2d at 417. We overrule appellant’s point of error.

                          Reformation of the Judgment

      Finally, the trial court’s judgment does not accurately comport with the

record as it does not reflect the jury’s finding of “true” on the enhancement

paragraph for theft by receiving stolen property. “An appellate court has authority

to reform a judgment to include an affirmative finding to make the record speak

the truth when the matter has been called to its attention by any source.” French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citation omitted); accord

Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.)

(“An appellate court has the power to correct and reform a trial court judgment ‘to

make the record speak the truth when it has the necessary data and information to

do so . . . .’”); see also TEX. R. APP. P. 43.2(b). The record supports modification

of the judgment because the clerk’s and court reporter’s records reflect that the jury

found the enhancement paragraph to be “true,” yet this finding was not included in

the judgment. Accordingly, the trial court’s judgment is modified to reflect that

the jury found the enhancement “true.”

                                         11
                                   Conclusion

      We modify the trial court’s judgment to reflect the jury’s finding of “true”

regarding the enhancement paragraph. We affirm the judgment of the trial court as

modified.




                                            Russell Lloyd
                                            Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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