Opinion issued March 15, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-14-00700-CR
                          ———————————
               THERRELL DEWAYNE FELDER, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 122nd District Court
                         Galveston County, Texas
                      Trial Court Case No. 14CR0283


                      MEMORANDUM OPINION

      A jury convicted appellant, Therrell Dewayne Felder, of the felony offense

of forgery, enhanced by two prior convictions for drug-related offenses, and the
trial court assessed his punishment at twenty-five years’ confinement.1 In one

point of error, appellant contends that the trial court erred in allowing evidence of

an extraneous offense because the prejudicial effect outweighed the probative

value of the evidence. We affirm.

                                    Background

      On December 26, 2013, a man entered the Food King in Texas City and

attempted to purchase cigarettes with a $100 bill. Crystal Morris, the cashier,

realized that the bill was counterfeit and notified the store’s assistant manager,

Anthony Melcher. Morris testified that the man, whom she recognized as a regular

customer, asked her to give him back the bill but Melcher told him that they could

not return it to him because it was not real. When Melcher called the police, the

man left the store.

      Morris subsequently identified appellant from a photo array as the man who

had attempted to pass the counterfeit $100 bill.         Appellant was arrested and

charged with forgery.

      During voir dire, trial counsel questioned venire members about how a

person might be identified as a suspect from surveillance video. During opening

statements, counsel told the jury that “this case is going to result in two things,

whether or not the [d]efendant committed an offense and . . . whether or not he

1
      Appellant was convicted of delivery of a controlled substance, namely, cocaine, in
      1991, and of possession of a controlled substance in 2009.

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knew the document was forged,” “I believe you’ll see an individual in that video

who looks nothing like my client other than the fact that they’re both black males,”

and that Morris had initially narrowed her selection of the suspect to two

individuals in the photo array and was only 85-90 percent sure that appellant was

the suspect when she identified him.

      Texas City Police Officer James Patterson testified that he interviewed

Morris after the incident and collected the counterfeit bill and the store’s

surveillance video. On cross-examination, trial counsel elicited testimony from

Officer Patterson that Morris’s physical description of the suspect consisted of

“pretty general characteristics,” that “a black male, age 40–45, about 6’2” can be

something that can commonly describe individuals in Texas City,” and that the

clothes reportedly worn by the suspect—a hoodie, blue jeans, and tennis shoes—

are items commonly worn by African-Americans in Texas City.

      Texas City Police Detective Jeffrey Baugh, a financial crimes investigator,

conducted the investigation of the case.       Detective Baugh testified that he

forwarded still images of the suspect obtained from the store’s surveillance video

to members of his department’s patrol division as well as an investigative group

consisting of detectives and federal agents, and that he received two responses

from officers identifying appellant as the suspect.     When trial counsel asked




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whether it was “clearly apparent to [him] that it was [appellant]” on the

surveillance video, Detective Baugh testified that it was not.

      On the second day of trial, and outside the presence of the jury, the State

argued that it should be allowed to introduce evidence that appellant had passed a

counterfeit $20 bill at the same Food King approximately two months before the

charged offense. The State asserted that identity and knowledge that the bill was

counterfeit were at issue and, thus, the evidence was admissible as an exception to

Rule of Evidence 404(b) prohibiting the admission of character evidence to prove

the defendant’s character or to show that the defendant acted in conformity with

that character. Trial counsel acknowledged that identity was at issue but argued

that allowing the extraneous offense evidence without proof beyond a reasonable

doubt that appellant had committed the earlier offense would unfairly prejudice

appellant. Concluding that the defense’s argument went to the weight rather than

the admissibility of the evidence, and that the probative value of the evidence

outweighed the danger of unfair prejudice, the trial court allowed the State to

introduce evidence of the extraneous offense.

      Ashley Munoz, a former cashier at the Food King in Texas City, testified

that appellant came into the store on the evening of October 20, 2013, and

purchased produce with a $20 bill. After appellant left, Munoz realized that he had

given her a counterfeit bill and called her supervisor, Melchor.      Munoz later



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identified appellant from a photo array as the man who had passed the $20

counterfeit bill at the Food King on October 20, 2013. Munoz also identified

appellant in court.

         The jury found appellant guilty of the charged offense. At the conclusion of

the punishment phase, the trial court assessed his punishment at twenty-five years’

confinement. Appellant timely filed this appeal.

                                     Discussion

         Appellant contends that the trial court erred in allowing the extraneous

offense evidence because (1) the evidence was not relevant to a material issue in

dispute and (2) the prejudicial effect of the evidence outweighed its probative

value.

   A. Standard of Review and Applicable Law

         We review a trial court’s admission of extraneous evidence under an abuse

of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App.

2004).     As long as the trial court’s ruling is within the “zone of reasonable

disagreement,” there is no abuse of discretion, and we will uphold the ruling.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Jabari v.

State, 273 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

         Rule of Evidence 404(b) prohibits the admission of an extraneous offense at

trial to prove a defendant’s character or to show that the defendant acted in



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conformity with that character. TEX. R. EVID. 404(b); Johnston v. State, 145

S.W.3d 215, 219 (Tex. Crim. App. 2004). Extraneous offenses may, however, be

admissible for other purposes, such as to show motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R.

EVID. 404(b); Jabari, 273 S.W.3d at 751.

      Where the State uses an extraneous offense to prove identity, the extraneous

offense must be so similar to the charged offense that it illustrates the defendant’s

“distinctive and idiosyncratic manner of committing criminal acts.” Page v. State,

213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (en banc) (quoting Martin v. State,

173 S.W.3d 463, 468 (Tex. Crim. App. 2005)).           In reviewing a trial court’s

decision to admit such evidence, appellate courts should take into account the

specific characteristics of the offenses and the time interval between them.

Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d). Sufficient similarity may be shown by proximity in time and place or by a

common mode of committing the offenses. Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996).

      Rule of Evidence 403 provides that even relevant evidence may be excluded

“if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusion of the issues, or misleading the jury . . . .” TEX. R. EVID. 403;

Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (citing Montgomery,



                                          6
810 S.W.2d at 387). Courts should consider the following factors under a Rule

403 analysis: (1) the strength of the extraneous offense evidence to make a fact of

consequence more or less probable; (2) the potential of the extraneous offense to

impress the jury in some irrational but indelible way; (3) the time during trial that

the State requires to develop evidence of the extraneous misconduct; and (4) the

need by the State for the extraneous evidence. Wheeler v. State, 67 S.W.3d 879,

888 (Tex. Crim. App. 2002). Thus, evidence is admissible when the prosecution

can show both that the offense or transaction is relevant to a material issue in the

case, and the probative value of the evidence to the trier of fact is not outweighed

by its prejudicial or inflammatory nature. Parks v. State, 746 S.W.2d 738, 740

(Tex. Crim. App. 1987) (referring to two-pronged test established in Williams v.

State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983)).

B.    Analysis

      Appellant first contends that the trial court erred in admitting the extraneous

offense under Rule 404(b) because such evidence was not relevant to a material

issue in dispute in the case. He argues that although the “transactions involved

were nearly identical,” the evidence did not show that he committed the October

2013 offense.

      As previously noted, an extraneous offense may be admissible to prove

identity. TEX. R. EVID. 404(b). Appellant has acknowledged, both at trial and on



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appeal, that identity was an issue in this case. Contrary to appellant’s contention

that there is no evidence that he committed the October 2013 offense, the record

reflects that Munoz positively identified him in a photo array and in court as the

man who passed the counterfeit $20 bill at the Food King on October 20, 2013.

Further, as appellant acknowledges, the offenses “were nearly identical.” The

charged offense was committed at the same store and approximately two months

after the extraneous offense. Lane, 933 S.W.2d at 519 (noting sufficient similarity

may be shown by proximity in time and place). Taken together, they showed that

it was more likely than not that appellant was the person who committed the

charged offense. Therefore, the extraneous offense was relevant to a material

element of the State’s case, i.e., identity.

      Appellant also contends that the extraneous offense evidence was

inadmissible under Rule 403 because admission of the evidence only served to

inflame the jury. Under a Rule 403 analysis, we first consider the strength of the

extraneous offense evidence to make a fact of consequence more or less probable.

See Jabari, 273 S.W.3d at 751. Here, it is undisputed that appellant made identity

an issue at trial. Morris testified that a man whom she recognized as a regular

customer attempted to pass a $100 counterfeit bill to purchase cigarettes at the

Food King in Texas City on December 23, 2013. Morris identified appellant as the

perpetrator in a photo array as well as in court. Munoz testified that a man who



                                               8
was a regular customer purchased produce with a counterfeit $20 bill from the

same Food King on October 20, 2013. Munoz also positively identified appellant

from a photo spread as well as in court. Trial counsel attempted to impeach Morris

by eliciting testimony that she initially identified two possible suspects and was

only 85–90% sure of her identification, thus providing the State with a reason to

develop extraneous offense evidence. The charged offense was committed at the

same store and approximately two months after the extraneous offense, and Munoz

identified appellant as the perpetrator in the earlier incident, making Morris’s

identification of appellant more probable.    Lane, 933 S.W.2d at 519 (noting

sufficient similarity may be shown by proximity in time and place).

      The admission of a similar extraneous offense carries a risk of irrationally

impressing the jury of a defendant’s character conformity, which the law seeks to

avoid. Jabari, 273 S.W.3d at 753. The impermissible inference of character

conformity can be minimized, however, with a limiting instruction. Lane, 933

S.W.2d at 520. Here, the trial court instructed the jury on the purposes for which

the extraneous offense evidence could be considered.       Further, the testimony

regarding the extraneous offense—approximately 19 of the 153 page record—did

not take up a significant portion of the trial and the amount of time used for the

testimony was reasonable and not excessive.




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      Finally, the defense attempted to impeach Morris regarding her

identification of appellant, pointing out that she had initially identified two

suspects in the photo array and that she was not 100% sure of her identification.

Further, trial counsel repeatedly suggested to the jury, in cross-examination of the

witnesses as well as opening and closing arguments, that the person seen on the

surveillance video was not appellant. Thus, the extraneous offense was significant

to the State’s case.

      Further, in cases of forgery and fraud, intent is always an issue. Parks, 746

S.W.2d at 740; Robledo v. State, 480 S.W.2d 401, 402 (Tex. Crim. App. 1972).

The Court of Criminal Appeals has held that intent or guilty knowledge cannot be

inferred from the mere passing of a forged instrument. Parks, 746 S.W.2d at 740;

Albrecht v. State, 486 S.W.2d 97, 102 (Tex. Crim. App. 1972). Establishing intent

in such cases is crucial to avoid criminalizing an innocent act when a person

unknowingly and accidentally passes a forged instrument. See Parks, 746 S.W.2d

at 740. This is such a difficult issue in forgery cases that, as a practical matter,

evidence of extraneous offenses is nearly always admissible. Id.

      The trial court was within the zone of reasonable disagreement when it ruled

that the extraneous offense was relevant to material issues in the case and the

probative value of the evidence was not substantially outweighed by the danger of




                                        10
unfair prejudice. Thus, we hold that the trial court did not abuse its discretion in

admitting the evidence. We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Bland, Brown, and Lloyd.

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




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