                                  NO. 07-00-0493-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     JUNE 11, 2002

                         ______________________________


                          CHARMIN LEE CREW, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 263RD DISTRICT COURT OF HARRIS COUNTY;

                  NO. 833,517; HONORABLE JIM WALLACE, JUDGE

                         _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.


      Upon a plea of not guilty, appellant Charmin Lee Crew was convicted by a jury of

aggravated robbery and punishment was assessed at 55 years confinement. Presenting

three issues, he challenges his conviction. By issue one, he contends the evidence was

insufficient as a matter of law to support his aggravated robbery conviction. By issues two

and three, he contends the trial court erred in admitting evidence of an extraneous offense
in violation of TEX . R. EVID . 404(b) and 403. Based upon the rationale expressed herein,

we affirm.


       On October 9, 1999, at approximately 9:00 p.m., appellant and his accomplice

entered the Wheatley Food Store wearing masks concealing their faces. Appellant was

carrying a shotgun. The victim and her husband, owners of the store, were in the cashier

booth enclosed behind a plexiglass window. Appellant pointed the shotgun at the door of

the cashier booth and ordered the victim to open it. When the victim did not comply,

appellant pointed the shotgun at her, touching the plexiglass window with the weapon, and

without any further warning shot the victim in the head.


       The two assailants immediately fled the scene on foot through a cemetery and field

to the home of an acquaintance to get a ride out of the area. While in the vehicle, the

driver overheard portions of the conversation between the two and testified at trial. A

shotgun which had been customized and modified was recovered from the cemetery by

officers, which was later identified by the victim’s husband as the weapon used in the

robbery. Police investigation first led to the name of appellant, but prior to questioning

him, police interviewed the driver. This interview led to the identification and confession

of appellant’s accomplice, who implicated appellant as the individual who shot the victim.

The accomplice also testified at trial. On August 17, 2000, appellant was found guilty of

the offense.




                                            2
       Considering appellant’s issues in logical rather than sequential order, we first

consider issues two and three. By issue two, appellant contends the trial court erred in

admitting evidence of an extraneous offense in violation of TEX . R. EVID . 404(b), by

admitting into evidence photographs of a shotgun taken three years prior to this offense,

and testimony from the police officer who took the photographs. He argues this constituted

inadmissible character evidence or evidence of an extraneous offense. Appellant further

argues the requisite prior notice of such character evidence was not given in compliance

with TEX . R. EVID . 404(b). By issue three, appellant contends in the alternative this same

evidence should have been excluded under TEX . R. EVID . 403.


       A timely and reasonably specific objection is required to preserve error for appellate

review. TEX . R. APP . P. 33.1(a); Butler v. State, 872 S.W.2d 227, 236 (Tex.Cr.App. 1994),

cert. denied, 513 U.S. 1157, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995). Where the alleged

error relates to the admission of evidence, a timely objection must be made stating the

specific ground of objection. TEX . R. EVID . 103(a)(1); Higgins v. State, 924 S.W.2d 739,

745 (Tex.App.–Texarkana 1996, pet. ref’d ). In addition, the objection at trial must comport

with the error complained of on appeal. Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App.

1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). Appellant

objected to the admission of the photographs and testimony at trial on the grounds that it

was inadmissible extraneous offense evidence and was substantially more prejudicial than

probative, but his objections were overruled. Here, he also contends the trial court erred



                                             3
by admitting the photographs and testimony because the requisite notice was not given

under Rule 404(b). As to the issue of notice under the Rule, no objection was raised at

trial, and therefore this issue was not preserved for appeal.


      Whether evidence is admissible is within the sound discretion of the trial judge.

Jackson v. State, 575 S.W.2d 567 (Tex.Cr.App.1979). Therefore, the standard of review

for admission or exclusion of evidence is abuse of discretion. Erdman v. State, 861

S.W.2d 890, 893 (Tex.Cr.App.1993). A trial judge does not abuse his discretion unless

he has "acted arbitrarily and unreasonably, without reference to any guiding rules and

principles." Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.–Amarillo 1991, pet. ref'd).

As long as the trial court's ruling was within the "zone of reasonable disagreement," there

is no abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State,

917 S.W.2d 799, 807 (Tex.Cr.App.1996), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136

L.Ed.2d 539 (1996). But, if it cannot be concluded from common reasonable experience

that the evidence has a tendency to make the existence of a fact of consequence more or

less probable, then the trial court's decision was not within the zone of reasonable

disagreement and it abused its discretion. Id.


       Therefore, the discretion to admit or exclude evidence is not absolute. For example,

extraneous offense or character evidence is generally inadmissible:


       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,

                                             4
       however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon timely request by the accused in a
       criminal case, reasonable notice is given in advance of trial of intent to
       introduce in the State's case-in-chief such evidence other than that arising
       in the same transaction.


TEX . R. EVID . 404(b). Appellant urges the application of Rule 404(b), and argues generally

that the evidence was inadmissible because the State did not explain under which Rule

404(b) exception this evidence fell.


       We disagree with appellant’s argument that the photograph of the shotgun and the

testimony regarding the photograph were somehow evidence of other crimes, wrongs, or

acts under Rule 404(b). To constitute an extraneous offense, the evidence must show a

bad act or crime and that the defendant was connected to it. Moreno v. State, 858 S.W.2d

453, 463 (Tex.Cr.App.1993), cert. denied, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378

(1993); Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Cr.App.1992), cert. denied, 510 U.S.

849, 114 S.Ct. 146, 126 L.Ed.2d 108 (1993).


       If no crime or bad act is shown, then the evidence is not extraneous offense

evidence. See Arthur v. State, 11 S.W.3d 386, 390 (Tex.App.–Houston [14th Dist.] 2000,

pet. ref’d). For example, testimony that "a traffic stop" had occurred would not create an

inference that the car in which appellant was found was a stolen vehicle. Id. Similarly

Rule 404(b) does not bar evidence that a vehicle in which defendant had been riding at

the time of his arrest had been reported stolen hours before the charged robbery.

                                             5
Rodriguez v. State, 975 S.W.2d 667, 684 (Tex.App.–Texarkana 1998, pet. ref’d). A

statement indicating that defendant had been in detention but showing nothing in regard

to what, if any, offense had been committed by defendant was not evidence of an

unadjudicated extraneous offense. Laca v. State, 893 S.W.2d 171, 185 (Tex.App.–El Paso

1995, pet. ref’d). Ultimately, if the proffered evidence does not show that an offense or

bad act was committed, then it is not evidence of an extraneous offense. See Arthur, 11

S.W.3d at 390.


      Appellant contends a photograph of a shotgun and officer testimony regarding the

photograph should not have been admitted into evidence at trial. The following exchange

took place after an objection from the appellant:


             MR. BARR: I have no idea what this witness is going to be testifying
                       to and I am concerned that Ms. Thornton maybe is
                       attempting [to] bring out through this witness some
                       information about a prior conviction of my client.
             MS. THORNTON: Just the fact that the shotgun was found in his
                           house three years ago, the one that was used in
                           the aggravated robbery.
                                         * * *
             MR. BARR: I can tell you the only reason, Judge that shotgun was
                       found in his house on a prior occasion because he had
                       been arrested for the case that he ultimately got
                       probation for.
             THE COURT:           What do we have exactly that–because the
                                  ballistic–what do we have actually that ties this
                                  shotgun to this offense?
             MR. BARR: Nothing.


                                            6
MS. THORNTON: Yes, we do.
THE COURT:         What?
                           * * *
MS. THORNTON: Well, I believe I do. The complainant testified
              that–Mr. Tran testified that the shotgun that was
              used in the aggravated robbery. Not only did
              Mr. Tran testify that was the shotgun that was
              used in the aggravated robbery, Mr. Scott
              testified that was the shotgun that was used in
              the aggravated robbery. Not only that but Mr.
              Buchanan just said that big man said he ditched
              it in the cemetery.
THE COURT:         Is this officer going to be able to identify this
                   weapon by serial number?
MS. THORNTON: No.
                           * * *
MS. THORNTON: No, but the photograph was taken of this
              weapon at the home of Mr. Big Man, Mr. Crew,
              what? Tow and a half years ago in ‘97.
                            ***
THE COURT:         So the only thing that you are going to elicit from
                   the officer that he saw this weapon in the
                   defendant’s home two and a half years ago
                   period.
MR. BARR: This is also arguably extraneous. It’s an extraneous
          offense that she is trying to–
THE COURT:         What’s extraneous about having a shotgun in
                   your home?
MR. BARR: If you see the shotgun and see that the shotgun is
          altered–
MS. THORNTON: He was not charged.
MR. BARR: It doesn’t make any difference if he was charged. This
          is a matter of bad acts and this is a matter of bringing
          something that is going to be absolutely more

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                            prejudicial than it is going to be probative in this case.
                            There is no way about it.
                                           * * *
              THE COURT:           The restriction is that you can ask the officer if
                                   he had seen the shotgun before, develop it,
                                   seen it in his home and that’s it.


       The police officer proceeded to testify that on December 1, 1997, he went to

appellant’s residence and photographed a shotgun. He identified the photographs and

they were admitted into evidence. No mention was made of any prior crime, or even about

any illegality of the modifications made to the shotgun. This photograph was certainly

relevant because it was a picture of a shotgun with custom modifications matching the

shotgun which had been identified as the shotgun used in the crime, and because it made

appellant’s possession of a weapon similar to the one recovered in this case more likely.

However, the mere possession of the weapon in the photographs was not imputed to the

jury to be a crime, nor was there mention that the weapon might have been used in another

crime. Simply stated, the State offered to the jury a photograph of a shotgun with custom

modifications previously known to have belonged to appellant, and let the jury draw its own

conclusions, and we conclude the trial court did not abuse its discretion by overruling

appellant’s Rule 404(b) objection. Issue two is overruled.


       By his third issue, appellant argues this same evidence should have been excluded

under TEX . R. EVID . 403. He urges us to conclude the trial court erred by not excluding the

evidence because it was substantially more prejudicial than probative. We disagree.

                                             8
When evidence is found to be relevant, it still must be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. TEX . R. EVID . 403. When the

trial court is called upon to balance the probativeness and prejudice of evidence, a

presumption exists which favors finding the evidence more probative than prejudicial.

Barron v. State, 864 S.W.2d 189, 193 (Tex.App.–Texarkana 1993, no pet.). This Court will

reverse only upon a clear abuse of discretion. See Ransom v. State, 920 S.W.2d 288, 299

(Tex.Cr.App. 1996), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996);

see also Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Cr.App. 1990) (stating that "[s]o

long as the trial court . . . operates within the boundaries of its discretion, an appellate

court should not disturb its decision, whatever it may be.").


       First, we note the evidence presented by the prosecution to show appellant in fact

committed the offense of aggravated robbery was strong:            appellant’s accomplice

confessed to the aggravated robbery and the physical evidence supported the

accomplice’s statement.      Other witness testimony about appellant’s behavior and

statements the night of the robbery tended to support the accomplice’s testimony. On the

other hand, we note the perception of the public toward illegally modified shotguns, which

could potentially affect the jury. Both the recovered shotgun and the one depicted by the

photographs shared the same apparently illegal modifications. However, no mention was

made at trial about apparent illegality of the modifications. The evidence was, however,




                                             9
important to the prosecutor's efforts to conclusively establish a link between appellant and

the shotgun recovered.


       Any evidence presented by the State is generally prejudicial to the defendant;

however, evidence should only be excluded when the probative value is substantially

outweighed by the danger of unfair prejudice. In light of these facts, we hold that the trial

court did not abuse its discretion in concluding that the danger of unfair prejudice did not

substantially outweigh the probative value of this evidence. Issue three is overruled.


       By his first issue, appellant contends the evidence was insufficient as a matter of

law to support his conviction for the offense of aggravated robbery. Before we commence

our analysis of this issue, we take special notice of his argument that “there was no

evidence, beyond a reasonable doubt, linking appellant with a shotgun” and that “there is

no evidence, beyond a reasonable doubt, linking appellant with any recovered shotgun

shells.” By these contentions, appellant challenges only the aggravating factor of the

offense, to-wit: the use or exhibition of a firearm.    Although appellant challenges the

sufficiency of the evidence regarding his use of the shotgun, he does not challenge his

involvement in the robbery, but rather claims the State did not meet its burden connecting

him to the use or exhibition of a firearm. We disagree.


       In conducting a legal sufficiency review, we must determine whether, after viewing

the evidence in the light most favorable to the verdict, any rational trier of fact could have



                                             10
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820

S.W.2d 154, 157 (Tex.Cr.App. 1991). As an appellate court, we should uphold the jury's

verdict unless it is irrational or unsupported by more than a mere modicum of evidence.

Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       For the jury to convict appellant of the offense of aggravated robbery, it was

required to find beyond a reasonable doubt that appellant exhibited a deadly weapon while

committing robbery. TEX . PEN . CODE ANN . § 29.03(a)(2) (Vernon 1994). According to the

testimony of his accomplice, appellant had the gun prior to the robbery, brought it with him

to the robbery, shot the victim in the face, then discarded it sometime afterward. This

testimony was compelling, but was given by appellant’s accomplice. The requirement for

accomplice testimony is set out in section 38.14 of the Texas Code of Criminal Procedure

Annotated (Vernon 1979):       a conviction cannot be had upon the testimony of an

accomplice unless corroborated by other evidence tending to connect the defendant with

the offense committed; and the corroboration is not sufficient if it merely shows the

commission of the offense.


       When considering accomplice testimony in determining the sufficiency of the

corroborating evidence, all of the accomplice testimony shall be eliminated. McDuff v.

State, 939 S.W.2d 607, 612 (Tex.Cr.App. 1997), cert. denied, 522 U.S. 844, 118 S.Ct. 125,

139 L.Ed.2d 75 (1997). The remaining evidence is then considered in the light most

                                            11
favorable to the jury’s verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex.Cr.App. 1994). The

non-accomplice evidence does not need to prove appellant’s guilt beyond a reasonable

doubt nor does it have to directly link appellant to the crime; it must only tend to connect

appellant to the offense. Burks v. State, 876 S.W.2d 877, 888 (Tex.Cr.App. 1994), cert.

denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); Reed v. State, 744 S.W.2d

112, 126 (Tex.Cr.App. 1988).      When considering the sufficiency of non-accomplice

testimony each case must be considered on its own facts and circumstances. Etheredge

v. State, 542 S.W.2d 148, 150 (Tex.Cr.App. 1976). All the facts and circumstances in

evidence may be looked to as furthering the necessary corroboration. Callaway v. State,

818 S.W.2d 816, 832 (Tex.App.–Amarillo, 1991, pet. ref’d).


       The victim testified appellant had the same size and build as the person who shot

her. A witness who gave both men a ride after the robbery testified that the accomplice

asked appellant, “Why did you shoot the lady?” Appellant made no response, but when

asked what he did with the gun, he said “I stashed it in the graveyard.” A shotgun was

recovered from a cemetery adjacent to the store that was robbed, through which the

accomplice testified the two men fled. This shotgun was identified by the victim’s husband

as the weapon appellant used to shoot his wife. A picture of a gun known to have been

owned by appellant was introduced at trial, and the jury was able to draw its own

conclusion about the similarity between the picture and the gun actually recovered.




                                            12
       From all the evidence, we conclude that the non-accomplice testimony and tangible

evidence together is sufficient to corroborate the accomplice testimony. We conclude that

a rational trier of fact could have found the essential elements of aggravated robbery

beyond a reasonable doubt. Viewing the facts in the light most favorable to the verdict and

without substituting our judgment for that of the jury’s, we hold that the evidence is legally

sufficient to sustain appellant's conviction. Appellant's first issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                           Don H. Reavis
                                             Justice

Do not publish.




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