                        NUMBERS 13-14-00299-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MARCUS ALLEN BERGH,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant Marcus Allen Bergh appeals from a two-count conviction of aggravated

robbery and unlawful possession of a firearm by a felon. See TEX. PENAL CODE ANN. §§

29.03, 46.04(a)(1) (West, Westlaw through 2015 R.S.). The jury found appellant guilty

of both counts, and the trial court followed the jury’s recommendation and assessed

punishment at thirty years’ imprisonment with a $10,000 fine for aggravated robbery and
ten years’ imprisonment with a $2,500 fine for unlawful possession of a firearm by a felon,

the sentences to be served concurrently. By a single issue, appellant contends that the

trial court abused its discretion by admitting irrelevant and prejudicial evidence. We

affirm.


                                    I.     BACKGROUND

          At approximately 11:05 p.m., Victoria Police Department officers responded to a

call regarding an attempted robbery of the Pit Stop convenience store. While responding

to this location, Officer Blair Cerny was rerouted to a second robbery in progress at the

Fast Stop convenience store, which is located approximately eight-tenths of a mile from

the Pit Stop. When he arrived at the Fast Stop, Officer Cerny observed the store clerk,

Matthew Davis, in the street in front of the store. Davis was pointing down Lone Tree

Road and shouting, “There they go!”

          Officer Cerny proceeded down Lone Tree Road in the direction Davis was pointing,

and saw a vehicle’s brake lights turn into a driveway. Officer Cerny caught up with the

stopped vehicle and noticed that the dark-grey sedan had Tennessee license plates

matching the description he received from the dispatcher. As the officer exited his patrol

vehicle, he observed a Hispanic or white male exit the passenger side of the vehicle and

flee. The individual was wearing a gray hooded sweatshirt and long pants. Officer

Cerny’s description matched Davis’s testimony describing the suspect.           The State

introduced photographic evidence of the suspect and a video depicting the robbery at the

Fast Stop.



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      Officer Cerny detained the driver of the dark-gray sedan, identified as appellant,

for suspicion of robbery. Another officer, Ricardo Soto, searched the vehicle and located

a black nine-millimeter handgun and a large amount of cash in the glove box, along with

a black beanie and light colored gloves. The handgun was distinct because it had an

orange-colored sight; matching a description given by Davis regarding the gun used in

the robbery. The vehicle matched the description given by Davis as well. Officer Cerny

found a box of nine-millimeter ammunition in the vehicle’s trunk.

      While Officer Cerny was detaining appellant, Officer Lucas Thompson responded

to the Pit Stop convenience store to investigate the original attempted robbery call,

arriving at the Pit Stop at approximately 11:18 p.m.       There he encountered store

employee Deeanna Garcia. According to Garcia, she was closing out her register for the

night when she saw a man come to the locked door of the Pit Stop and pull on it. She

described the man as wearing a light-colored hooded sweatshirt and some sort of dark

mask. Garcia did not see what vehicle the man was driving. The trial court admitted a

photograph of the man outside the Pit Stop. Garcia testified that the photo matched her

recollection of the man who pulled on the locked door. Garcia testified that the suspect

had a hood and dark-colored mask on, but that she did not see a gun.

      Appellant’s two count indictment stemmed from the Pit Stop robbery. During trial,

appellant objected to the admission of Garcia’s testimony regarding the attempted

robbery at the Pit Stop under Texas Rule of Evidence 404(b), and Officer Thompson’s

testimony regarding his investigation of both robberies and his discovery of physical

evidence that matched a description made by Garcia under Texas Rules of Evidence 401,


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402, and 403. The trial court overruled appellant’s objections. Appellant requested,

and the trial court granted, a limiting instruction, which informed the jury that they could

only consider the evidence of an attempted robbery at the Pit Stop if they were convinced

beyond a reasonable doubt that appellant was involved in the incident at the Pit Stop, and

even then they could only consider it to assess appellant’s intent.


                               II.    ADMISSION OF EVIDENCE


       By a single issue, appellant contends “the trial court abused its discretion in

admitting evidence of an extraneous attempted robbery and the erroneous admission of

the extraneous evidence was not harmless.” Specifically, he claims the admission of the

evidence violates rules 401, 403, and 404(b)(1) of the Texas Rules of Evidence.


A.     Standard of Review

       We review a trial court's decision to admit or exclude extraneous offense evidence

for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009). We will not reverse the trial court's ruling unless it falls outside the “zone of

reasonable disagreement.” Id. at 343–44 (quoting Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g) (en banc)); see also Taylor v. State, 268

S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex.

Crim. App. 2003) (holding trial court abuses its discretion only if its decision is “so clearly

wrong as to lie outside zone within which reasonable people might disagree”)).              In

applying the abuse of discretion standard, we may not reverse a trial court's admissibility

decision solely because we disagree with it. See Powell v. State, 63 S.W.3d 435, 438

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(Tex. Crim. App. 2001). We will not disturb a trial court's evidentiary ruling if it is correct

on any theory of law applicable to that ruling. De La Paz, 279 S.W.3d at 344.

B.     Applicable Law

       The threshold question of evidentiary relevancy is governed by Texas Rule of

Evidence 401.     See TEX. R. EVID. 401.       Relevant evidence is evidence having any

tendency to make the existence of a fact that is of consequence to the outcome of the

case more or less probable than it would be without the evidence. Id. Evidence must

satisfy two requirements in order to be relevant: materiality and probativeness. Williams

v. State, 294 S.W.3d 674, 685 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing

Cruz v. State, 122 S.W.3d 309, 312 (Tex. App.—Houston [1st Dist.] 2003, no pet)).

When determining whether evidence is relevant, courts examine the purpose for which

the evidence is being introduced. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App.

2009) (citing Moreno v. State, 858 S.W.2d 453, 463, 465 (Tex. Crim. App. 1993)). For

evidence to be relevant, it is critical that there is a direct or logical connection between

the actual evidence and the proposition sought to be proved. Id.; Allen v. State, 249

S.W.3d 680, 703 (Tex. App.—Austin 2008, no pet.). If there is some logical connection

either directly or by inference between the evidence and a fact to be proved, the evidence

is relevant. PPC Transp. v. Metcalf, 254 S.W.3d 636, 642 (Tex. App.—Tyler 2008, no

pet.). In keeping with the presumption of admissibility of relevant evidence, trial courts

should favor admission in close cases. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007) (citing Montgomery, 810 S.W.2d at 389).




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       The court’s permissible exclusion of otherwise relevant evidence is governed by

Texas Rule of Evidence 403. See TEX. R. EVID. 403. Under Rule 403, “[T]he court may

exclude relevant evidence 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, wasting time, or needlessly presenting cumulative evidence.” Id. A

Rule 403 review includes the following factors: “(1) the probative value of the evidence;

(2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time

needed to develop the evidence; and (4) the proponent’s need for the evidence.” Erazo

v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d

at 389–90); see TEX. R. EVID. 403. Whether extraneous offense evidence has relevance

other than proving bad character conformity is a question for the trial court. De La Paz,

279 S.W.3d at 343 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).

Even if such evidence is deemed relevant, it can still be excluded if it is deemed unfairly

prejudicial under Rule 403. See Feldman v. State, 71 S.W.3d 738, 754 (Tex. Crim. App.

2002). “Probative value” refers to how strongly an item of evidence “serves to make

more or less probable a fact of consequence to the litigation, coupled with the proponent’s

need for the item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim.

App. 2006). “Unfair prejudice” refers to a tendency to suggest deciding the case on an

improper basis.   Id.   However, the balance is always slanted towards admission of

otherwise relevant evidence. De La Paz, 279 S.W.3d at 343.

       Texas Rule of Evidence 404(b)(1) prohibits the use of evidence of other crimes,

wrongs, or acts to prove a person’s character in order to show that on a particular


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occasion they acted in conformity with that character.          TEX. R. EVID. 404(b)(1).

Evidence of extraneous offenses are generally inadmissible against a defendant in a

criminal trial.   Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005).         To

constitute an “extraneous offense,” the evidence must show both a crime or bad act and

the defendant’s connection to the act. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.

Crim. App. 1992); Johnson v. State, 190 S.W.3d 838, 840 (Tex. App.—Fort Worth 2006,

no pet.). However, Texas Rule of Evidence 404(b)(2) does permit the introduction of

evidence of other crimes, wrongs, or acts for other purposes, including but not limited to:

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, and lack of accident. TEX. R. EVID. 404(b)(2). Before 404(b)(2) evidence can

be admitted, a reviewing court must also determine whether or not the probative value of

the extraneous crime was substantially outweighed by the danger of unfair prejudice

when an objection is raised under Rule 403. Montgomery, 810 S.W.2d at 395.

       A trial court’s ruling is within the permissible “zone of reasonable disagreement”

and must be upheld so long as the evidence shows an extraneous transaction is relevant

to a material, non-propensity issue, and so long as the probative value of the evidence is

not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. De La Paz, 279 S.W.3d at 344. Therefore, while Rule 404(b)

generally excludes evidence of extraneous crimes, the evidence can be admitted when it

meets the following two-pronged test: “(1) the offense is relevant to a material issue in

the case, other than the issue of the defendant’s character; and (2) the probative value of




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the evidence is not substantially outweighed by the danger of unfair prejudice.”

Hartsfield v. State, 305 S.W.3d 859, 871 (Tex. App.—Texarkana 2010, pet ref’d).

C.     Analysis
       We first analyze appellant’s 404(b) argument under the two-pronged test outlined

in Hartsfield. See id. at 871. Despite appellant’s contrary general assertions, evidence

of the attempted robbery at the Pit Stop is relevant to valid, non-character purposes under

Rule 404(b) because it can be offered to establish the appellant’s identity and plan in

facilitating the subsequent robbery at the Fast Stop. See TEX. R. EVID. 401, 404(b)(2).

The State presented evidence linking the common identity and plan of those involved in

the two incidents: the similar appearance of the robber’s clothing, the proximity in time

and location of the events, and the description of the vehicle. 1 We conclude that this

evidence is both material and probative, and that there is a logical, inferential connection

between the evidence and the proposition sought to be proved.                   See Williams, 294

S.W.3d at 685 (citing Cruz v, 122 S.W.3d at 312); Layton, 280 S.W.3d at 240 (citing

Moreno, 858 S.W.2d at 463, 465); Allen, 249 S.W.3d at 703; Metcalf, 254 S.W.3d at 642.

Because the evidence is “relevant to a material issue in the case, other than the issue of

the defendant’s character,” Garcia’s and Thompson’s testimony satisfies the first prong

of rule 404(b). See Hartsfield, 305 S.W.3d at 871.

       Appellant also argues that Garcia’s and Thompson’s testimony is more prejudicial

than probative. But the testimony does serve to “make more . . . probable a fact of




        1 In both instances, witnesses described the robber as wearing a dark colored mask with a light

colored hooded sweatshirt. The Fast Stop is approximately 0.8 miles from the Pit Stop, and when Officer
Cerny was originally called to the Pit Stop, he was rerouted to the Fast Stop while en route.
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consequence to the litigation.” See Gigliobianco, 210 S.W.3d at 641. Garcia described

the suspect as wearing a “dark colored mask,” covering the suspect’s entire face. She

testified that the suspect had a “sweater jacket with a hood.”         Garcia’s testimony

establishes the fact that whoever robbed the Fast Stop was similarly dressed to whoever

attempted to rob the Pit Stop. This similarity makes it more probable that appellant

intended to assist the suspect in the robbery of the Fast Stop, since appellant was

apprehended in the car, and the car fit the description given by the robbery witness at the

Fast Stop. Under the second prong of rule 404(b), there is probative value to Garcia’s

and Thompson’s testimony. See Hartsfield, 305 S.W.3d at 871.

       In support of his argument that this extraneous offense causes unfair prejudice

under the second factor of rule 403, appellant cites Gilbert v. State, where the defendant

was convicted of aggravated robbery with a deadly weapon in Fort Worth. See 808

S.W.2d 467, 467 (Tex. Crim. App. 1991) (en banc).            In Gilbert, the State elicited

testimony from a police officer that defendant was under indictment for a separate robbery

and shooting of a police officer in Arlington. Id. at 469. The trial court overruled defense

counsel’s objection to the officer’s testimony regarding the extraneous offenses. Id.

The Texas Court of Criminal Appeals reversed the conviction, concluding the extraneous

offenses revealed by the officer were “irrelevant” and “highly prejudicial.” Id. at 470.

       Gilbert is distinguishable from the present case.         Gilbert involved another

identifiable codefendant who was in fact convicted of the extraneous offense, which was

committed nearly two months prior. See id. at 469. In the present case, there was no

identifiable codefendant.     Moreover, the two incidents occurred minutes apart.


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Therefore, Garcia’s testimony of what occurred at the Pit Stop cannot be said to be “highly

prejudicial,” or be “substantially outweighed” by potential prejudice because whatever

occurred at the Pit Stop could logically and inferentially be connected by proximity, similar

appearances, and elapsed time. See id. at 472 (quoting Gilbert v. State, 781 S.W.2d

296, 299 (Tex. App.—Fort Worth 1988), aff’d, 808 S.W.2d 467 (Tex. Crim. App. 1991)

(en banc)).

       Appellant also cites Castillo, where this Court reversed a robbery conviction,

holding that the State did not need the disputed evidence to prove appellant’s identity,

knowledge, or intent to deprive the victim of property. See 865 S.W.2d 89, 93 (Tex.

App.—Corpus Christi 1993, no pet.).        The disputed evidence consisted of a crime

appellant allegedly committed when he attacked and robbed someone in a bar the same

evening the victim’s watch was stolen. See id. at 91–92. There, we stressed that the

State did not need the disputed evidence in that case. See id. at 93. This Court stated

its rationale as follows:

       The arresting officer identified appellant in open court as the man he arrested and
       as the person who had discarded the watch while fleeing. The victim identified
       appellant as the man who held the gun while another man took his watch. A second
       witness identified appellant as the man who approached him and who offered to
       sell the watch for $7.00. Any trier of fact could readily infer intent to deprive from
       the taking and the attempted sale of the watch.

Id.

       Other courts have found prejudice when extraneous offense evidence has (1)

shown that the extraneous offense occurred approximately a month after the crime at

issue; (2) the time needed to develop the evidence took up more than a third of the trial

and included fifteen witnesses and seventeen exhibits, and (3) intent was not disputed at

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trial, and the extraneous evidence was unnecessary. Compare Jackson v. State, 320

S.W.3d 873, 885–86 (Tex. App.—Texarkana 2010, pet. ref’d) (extraneous evidence was

not admissible when intent was undisputed, evidence contributed greatly to the size of

the record, and it was deemed unnecessary) with Johnson v. State, 6 S.W.3d 709, 711,

712 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (extraneous offense occurred within

two days of charged offense, intent was disputed at trial, and the evidence was not a large

part of the record, rendering it admissible); see Erazo, 144 S.W.3d at 489.

       In the present case, (1) the extraneous offense occurred minutes before the

charged offense, (2) the testimony at issue consisted of two witnesses out of fourteen

presented by the State, totaling fifteen pages in an eleven volume record, and (3) intent

was disputed at trial. Because “the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice,” Garcia’s and Thompson’s testimony

satisfies the second prong of rule 404(b). See Hartsfield, 305 S.W.3d at 871, 873.

       Additionally, Garcia’s and Thompson’s testimony was needed by the State to

establish that a witness at the scene of the Pit Stop believed she was being robbed by a

suspect that looked similar to the suspected robber at the Fast Stop. The only other

evidence that establishes an event took place at the Pit Stop is the fact that Officer Cerny

received a call from the Pit Stop at 11:05 p.m. that evening, where he was subsequently

rerouted to the Fast Stop. If this testimony is ruled inadmissible, then the photograph

obtained by Officer Thompson could not be authenticated by Garcia, and the jury would

not know the physical description of whoever pulled at the Pit Stop’s locked door that

night. It could then not match the description in the photo to Matthew Davis’ description


                                            11
of the suspect at the Fast Stop, which led to Officer Cerny’s chase and detention of

appellant who drove a distinctive vehicle containing a gun, matching ammunition, cash,

and items of clothing. This timeline of events allowed the jury to infer that there was a

logical connection between events at the Pit Stop and Fast Stop, which would establish

greater probability that appellant facilitated a robbery, if not both robberies. See TEX. R.

EVID. 401; Layton, 280 S.W.3d at 240 (citing Moreno, 858 S.W.2d at 463, 465); Allen, 249

S.W.3d at 703.

       Our sister courts of appeals have affirmed convictions with similar facts. See,

e.g., Johnson, 6 S.W.3d at 712 (testimony of clerk from second convenience store that

was robbed by defendant's accomplices, concerning defendant's participation in that

robbery, was relevant to material issue of whether defendant was an intentional and

willing party to crime of aggravated robbery); see also Flores v. State, No. 01-05-01016-

CR, 2007 WL 2332516, at *5–7 (Tex. App.—Houston [1st Dist.] Aug. 16, 2007, pet. ref’d)

(mem. op., not designated for publication) (extraneous offense helped explain why the

police became involved in the case that led to the investigation of the underlying facts

and how the police ultimately arrested appellant for robbery). Garcia’s and Thompson’s

testimony was admissible because “(1) the offense is relevant to a material issue in the

case, other than the issue of the defendant’s character; and (2) the probative value of the

evidence is not substantially outweighed by the danger of unfair prejudice.” Hartsfield,

305 S.W.3d at 871.




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       We conclude that, for the above reasons, the trial court did not abuse its discretion

in admitting the challenged extraneous offense evidence. See De La Paz, 279 S.W.3d

at 343. We overrule appellant’s sole issue.

                                     III.      CONCLUSION


       We affirm the trial court’s judgment.


                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
14th day of July, 2016.




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