      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00230-CR



                                 Mark Alan Norwood, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 11-1600-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Mark Alan Norwood of the offense of capital murder.1

Punishment was automatically assessed at life imprisonment. In two issues on appeal, Norwood

asserts that the district court abused its discretion in admitting extraneous-offense evidence. We will

affirm the judgment of conviction.


                                          BACKGROUND

                This appeal concerns the 1986 murder of Christine Morton, then the wife of

Michael Morton. As the reader is likely well aware—although the fact was not emphasized to the

jury below—Michael2 was wrongfully convicted of Christine’s murder in 1987, endured decades-




       1
           See Tex. Penal Code § 19.03.
       2
           We identify the Mortons by their first names to avoid confusion.
long incarceration, and was finally exonerated in 2011.3 Norwood was prosecuted for Christine’s

murder thereafter.

               Because Norwood does not challenge the sufficiency of the evidence supporting his

conviction, we will forego a comprehensive recitation of the trial record in favor of merely noting

the basic facts and certain additional evidence pertinent to the issues Norwood does raise. In this

regard, the jury heard evidence that:


•      Christine was found dead in the master bedroom of the Williamson County house she shared
       with Michael and their young son. Her body was in the bed, which was tucked up tightly.
       A suitcase and wicker basket were piled over her, toward the head of the bed, and two bed
       pillows covered her head.

•      There was severe trauma to Christine’s head and face, and her cause of death was later
       determined to be a “massive crushing injury” to her head attributed to at least eight blows.
       A small defensive wound was found on Christine’s left hand. There were no indications that
       Christine had been sexually assaulted.

•      Christine’s wallet was found empty of cash, which was unusual, according to Michael,
       because Christine had generally carried cash. Similarly, Michael discovered that a .45 caliber
       Colt Commander handgun he owned was missing from the house. However, the Mortons’
       wedding rings, jewelry, and similar valuables had been left undisturbed despite being in
       plain view.

•      A sliding glass door in the Mortons’ living room, which led to a fenced back yard,
       was found unlocked. Additionally, on the day following Christine’s murder, her brother,
       John Kirkpatrick, discovered footprints on the ground outside the Mortons’ back yard fence.4
       Kirkpatrick deduced that someone had likely jumped the fence into the Mortons’ back yard.

•      From the location outside the fence where he had seen the footprints, Kirkpatrick “turned
       180 degrees away from the house” and noticed a wooded lot and a street beyond it.
       Kirkpatrick “assumed that was where someone would have come from” and “just went as


       3
         See Ex parte Morton, No. AP-76,663, 2011 WL 4827841 (Tex. Crim. App. Oct. 12, 2011)
(not designated for publication) (per curiam).
       4
         Kirkpatrick explained that he had conducted his own independent examination of the crime
scene area.

                                                 2
       straight as I could through those trees to that street.” When Kirkpatrick arrived at the street,
       he observed that he was in a “part of the subdivision that hadn’t been developed yet.” Near
       the street, there was a house under construction that “caught his attention,” and he proceeded
       to that site. On the ground at the construction site, Kirkpatrick discovered a blue bandana
       with discolorations on it.

•      Kirkpatrick provided the bandana to law enforcement, which in turn submitted it to the
       Department of Public Safety (DPS) laboratory for testing. The lab discovered a human hair
       on the bandana and also determined that the discoloration was human blood. However, at
       the time of this analysis, DPS did not yet have the technology enabling it to test these items
       for DNA.

•      Eventually, in 2010, the bandana and hair were submitted for DNA analysis.5 Analysis
       determined that the blood and hair had a DNA profile consistent with Christine’s DNA and
       that the bandana also contained the DNA profile of an unidentified male.

•      The unidentified male DNA profile was entered into the national CODIS6 database and
       subsequently matched to Norwood. Further DNA analysis utilizing samples provided by
       Norwood confirmed the match.

•      Ensuing investigation of Norwood’s activities near the time of Christine’s murder led
       law enforcement to an individual named Louis Wann, who divulged that he had purchased
       a .45 caliber Colt Commander from Norwood around that time. Upon inspection, the gun’s
       serial number matched that of the gun owned by Michael that had turned up missing after
       Christine’s murder.


                Over Norwood’s objections, which we explain more fully below, the district court

also admitted evidence regarding the murder of Debra Baker in Travis County, which occurred on

or about January 12, 1988, approximately seventeen months after Christine’s murder. Regarding this

murder, the jury heard evidence that:




       5
           See In re Morton, 326 S.W.3d 634, 648 (Tex. App.—Austin 2010, no pet.).
       6
        CODIS stands for Combined DNA Indexing System, a database containing approximately
twenty million DNA profiles.

                                                  3
•      Baker was found dead in her own bed, with her head covered by two bed pillows. Upon
       removing the pillows, the person who discovered Baker—her mother—had observed that her
       daughter’s head was “very bloody.”

•      An autopsy revealed that Baker had died from a “massive skull fracture with contusions or
       bruising on the brain” caused by at least six blows to the head from a blunt object.

•      Baker also had minor defensive wounds on her hands. There were no indications that she
       had been sexually assaulted.

•      A VCR was discovered missing from Baker’s home, but expensive jewelry, despite being
       in plain view, had been left undisturbed. Further, cash that had been given to Baker by her
       sister on the evening of her murder was also missing.

•      Police found no evidence of forced entry into Baker’s home, and Baker’s sister testified that
       Baker had a tendency to leave a sliding glass door leading into her home unlocked. One of
       the patrol officers charged with securing the crime scene testified that he had observed leaves
       in Baker’s back yard that were disturbed in a manner suggesting that the attacker had jumped
       the back fence to either enter or exit the home.

•      While analyzing evidence gathered from Baker’s home, a DPS analyst had discovered
       a brownish pubic hair. However, at the time of this analysis, DPS did not yet have the
       technology enabling it to test the hair for DNA.

•      The case went unsolved for several years thereafter. It was reopened in 2005, whereupon
       another pubic hair was discovered among the debris that had been collected with an evidence
       vacuum from Baker’s home. DNA testing of the hairs, however, was inconclusive.

•      In 2011, after Norwood’s DNA was linked to the DNA found on the bandana collected
       near Christine’s home, investigators in that case contacted the Austin Police Department
       Cold Case Unit, which by then had been assigned to the Baker case, and suggested it
       investigate a similar link to Norwood given the factual similarities between the two cases.
       Subsequent DNA testing confirmed that the hairs obtained during the course of the
       Baker investigation matched Norwood’s DNA profile. Specifically, the hair obtained from
       the Baker evidence vacuum contained DNA consistent with Norwood’s sample, and both
       DNA samples contained the same genetic mutation. An expert in genetics and statistics
       testified that approximately one in thirty-three billion individuals would be expected to have
       this same profile.


              At the conclusion of Norwood’s trial for Christine’s murder, the jury found Norwood

guilty as charged. The district court assessed punishment as noted above. This appeal followed.


                                                 4
                                            ANALYSIS

                 As previously indicated, both of Norwood’s issues on appeal challenge the

district court’s admission of the extraneous-offense evidence related to the murder of Debra Baker.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.7 The test

for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, without reference

to any guiding rules or principles.8 A trial court abuses its discretion only when its decision “is so

clearly wrong as to lie outside that zone within which reasonable persons might disagree.”9

                 Norwood objected to the Baker evidence based on Texas Rules of Evidence 403 and

404(b). Rule 404(b) bars evidence of extraneous bad acts merely to show character conformity but

permits such evidence for other purposes.10 Rule 403, in turn, bars otherwise admissible evidence

whose probative value is substantially outweighed by the danger of unfair prejudice.11 In advocating

admission of the Baker evidence, the State urged that it tended to prove Norwood’s identity as



       7
            Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
       8
            Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
       9
            McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
       10
            Rule 404(b) provides:

       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, 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).
       11
            See id. R. 403.

                                                  5
Christine’s killer, one of the purposes for which Rule 404(b) specifically makes extraneous bad acts

admissible,12 and that this probative value was not substantially outweighed by any unfair prejudice

so as to warrant exclusion under Rule 403. The district court agreed,13 and Norwood contends that

it abused its discretion with respect to both rules.


Rule 404(b)

                   “An extraneous offense may be admissible to show identity only when identity is

at issue in the case.”14 However, “[t]he trial judge has considerable latitude in determining that

identity is, in fact, disputed.”15 “It may be placed in dispute by the defendant’s opening statement

or cross-examination, as well as by affirmative evidence offered by the defense.”16 Here, the

district court would not have abused its discretion in finding that the identity of Christine’s murderer

was a disputed issue in the case. There was no dispute that Christine had been murdered—the

issue was instead whether the jury could conclude beyond a reasonable doubt that Norwood had

committed the crime, as opposed to someone else. From opening statement, Norwood’s counsel

attacked that notion, characterizing the State’s case as involving “two things only . . . contamination



       12
           See id. R. 404(b); Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim. App. 2008); Page
v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006).
       13
          When overruling Norwood’s objections, the court observed on the record that “the
evidence does fit the requirements of a signature crime under 404(b),” that the evidence was
“obviously highly prejudicial but also extremely probative,” and that “identity is the key” issue in
the case.
       14
          Page, 213 S.W.3d at 336 (citing Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim.
App. 1996)).
        15
             Segundo, 270 S.W.3d at 86.
        16
             Id.

                                                   6
and liars.” Counsel’s subsequent cross-examination of State witnesses was calculated to raise these

sorts of inferences regarding the State’s proof. In short, Norwood’s defensive theory was that the

jury should discount or ignore the State’s DNA evidence and other proof tending to implicate

Norwood and fail to find that he was the killer. For these and other reasons, the district court could

reasonably find that the issue of identity had, in fact, been raised at trial.

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

extraneous evidence admissible.”17 “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.’”18 In

other words, “the theory of relevancy is usually that of modus operandi in which the pattern and

characteristics of the charged crime and the uncharged misconduct are so distinctively similar that

they constitute a ‘signature.’”19 “No rigid rules dictate what constitutes sufficient similarities; rather,

the common characteristics may be 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.”20 “Usually, it is the accretion of small, sometimes individually insignificant, details

that marks each crime as the handiwork or modus operandi of a single individual.”21




        17
             Page, 213 S.W.3d at 336.
        18
             Id. (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)).
        19
             Segundo, 270 S.W.3d at 88.
        20
             Id.
        21
             Id.

                                                    7
                Here, we cannot conclude that the district court abused its discretion in determining

that the pattern and characteristics of Christine’s murder versus the Baker murder were so

distinctively similar that they constituted a “signature.” The evidence tended to show that both

victims were white females in their early 30s with long brown hair; were presumably asleep when

the attack began; were killed in their beds; were struck between six and eight times in the head with a

blunt object; had minor defensive wounds on their hands; and were found with bed pillows covering

their heads. Other evidence of similarities included the absence of any sexual assault in either case;

apparent entry through an unlocked sliding glass door after jumping a fence in the victim’s back

yard; the absence of any indication that either victim had known Norwood; and the fact that in both

cases cash and a single item of value were stolen—a handgun in Christine’s case, a VCR in the

Baker case—while jewelry left in plain view was undisturbed. There was also evidence that both

murders had taken place on the 13th day of the month and both on Wednesday.

                Norwood emphasizes in his brief that there were also ways in which the two murders

were dissimilar, including that Christine appeared to have been struck in the head with a wooden

object while Baker appeared to have been struck in the head with a metal object. Nevertheless, in

light of the aforementioned similarities between the two crimes summarized above, we conclude that

it was within the zone of reasonable disagreement for the district court to find that the Baker murder

was sufficiently similar to Christine’s murder that evidence of the Baker murder was admissible to

prove identity in Christine’s case.22 Accordingly, we cannot conclude that the district court abused

its discretion under Rule 404(b). We overrule Norwood’s first issue.




       22
            See id. at 89-90.

                                                  8
Rule 403

                 We next address Norton’s contention that, even if evidence of the Baker murder was

relevant and admissible under Rule 404(b), the district court abused its discretion in failing to

exclude it under Rule 403. Rule 403 provides that, “[a]lthough relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.”23 But “Rule 403 favors the admission of relevant evidence and carries

a presumption that relevant evidence will be more probative than prejudicial.”24 Evidence should

be excluded under Rule 403 only when there exists “a clear disparity between the degree of prejudice

of the offered evidence and its probative value.”25 In evaluating a trial court’s ruling under Rule 403,

“a reviewing court is to reverse the trial court’s judgment ‘rarely and only after a clear abuse

of discretion.’”26 In making this determination, the court should consider (1) how compellingly

evidence of the extraneous offense serves to make a fact of consequence more or less probable;

(2) the potential that the extraneous offense will impress the jury in some irrational but indelible

way; (3) the trial time needed to develop the evidence; and (4) the proponent’s need for the

extraneous offense evidence.27

        23
             Tex. R. Evid. 403.
        24
             Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009).
       25
           De La Paz v. State, 279 S.W.3d 336, 343 n.17 (Tex. Crim. App. 2009) (quoting Conner
v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
       26
         Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery,
810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986))).
       27
         Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Lane v. State,
933 S.W.2d 504, 520 (Tex. Crim. App. 1996)).

                                                   9
                 The first factor requires the court to consider the strength of the extraneous-offense

evidence to make a fact of consequence more or less probable. At trial, Norwood disputed that

he was responsible for Christine’s murder and his counsel framed this case as being about

“contamination and liars.” The district court would not have abused its discretion in finding that the

Baker murder to which Norwood was linked with DNA evidence and shared many characteristics

with Christine’s murder is probative of Norwood’s identity as the perpetrator of Christine’s murder.28

Consequently, this factor weighs in favor of admissibility.

                 Second, the court must consider the extraneous-offense evidence for its “potential to

impress the jury in some irrational but indelible way.”29 When the extraneous offense is no more

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

unfair prejudice.30 Moreover, any impermissible inference of character conformity can be minimized

by the use of a limiting instruction.31




       28
            See McGregor v. State, 394 S.W.3d 90, 120 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d) (quoting Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st Dist.] 2008,
no pet.)); see Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996) (“[T]he extreme degree
of similarity between the two murders renders evidence of the first murder highly probative.”).
        29
             Wheeler, 67 S.W.3d at 888 (citing Lane, 933 S.W.2d at 520).
        30
            See Taylor, 920 S.W.2d at 323 (“[T]he first murder, being no more heinous than the
second, was not likely to create such prejudice in the minds of the jury that it would have
been unable to limit its consideration of the evidence to its proper purpose.”). In this case, the
district court would not have abused its discretion in finding that both offenses were equally heinous,
as they both involved the violent killing of a young mother while she was in her home alone and
asleep in her bed.
        31
          Lane, 933 S.W.2d at 520 (citing Montgomery, 810 S.W.2d at 393); McGregor,
394 S.W.3d at 120-21.

                                                  10
               At trial, the State did not dwell on the brutal nature of the Baker murder, but instead

focused on the similarity between the two offenses and the DNA evidence linking Norwood to the

Baker murder. For example, several photographs relating to the Baker murder were admitted into

evidence, one of which showed Baker’s body at the murder scene, and three of which showed

Baker’s body at the medical examiner’s office. The State used these photos to illustrate for the jury

the similarities of the Baker murder to Christine’s murder, i.e., to establish that pillows had been

placed over both victims’ heads and to demonstrate the similar injuries that both victims had

suffered. Accordingly, the district court could have reasonably found that the photos were highly

probative of the similarity in the modus operandi of the attacks and that any danger of unfair

prejudice was minimized by the manner in which the State presented the evidence to the jury, which,

the district court could have reasonably found, would limit the likelihood that the jury would

consider the evidence for an improper purpose.

               Additionally, before the district court allowed the State to present evidence of the

Baker murder, it gave the following limiting instruction to the jury:


       Ladies and gentlemen of the jury . . . you will be hearing evidence at this point in
       time about an offense other than the offense on trial. I’m going to instruct you that
       you cannot consider this evidence for any purpose unless you first find and believe
       beyond a reasonable doubt that the defendant committed this offense. That’s number
       one. You have to believe it’s been proven to you beyond a reasonable doubt.

       And, secondly, even then you may only consider that evidence in determining
       identity in connection with this offense or with the offense, if any, that was
       committed. And you can—in other words, you can only use that if it helps you
       determine identity in the case we have on trial. Okay. That’s the only purpose for
       which you can consider this evidence.




                                                 11
                The district court included a substantially similar instruction in the written charge.32

These instructions thus informed the jury that it could consider the Baker evidence only for the

purposes of establishing identity and not for character-conformity purposes. For these reasons, the

second factor weighs in favor of admissibility.

                As to the third factor, the court must consider the trial time needed to develop the

extraneous-offense evidence. The evidentiary portion of Norwood’s trial lasted approximately

six days. The jury heard slightly less than four full days of evidence pertaining solely to Christine’s

murder. The State spent approximately two full days, or 33% of the trial, presenting evidence solely

related to the Baker murder. The State argues that this time was necessary to properly develop the

“convoluted chain of custody” and “lengthy evolution of the analysis on the hairs.”33 For support,

the State relies on Segundo, in which the Court of Criminal Appeals acknowledged that “developing

the chain of custody of vaginal swabs, the analysis for semen, and the identification of the DNA

profile that was then matched with [the accused’s DNA], requires a long list of witnesses and a

slow plod through the pertinent scientific procedures.”34 And, as in Segundo, the State asserts that


       32
            The instruction in the jury charge read:

       You are further instructed that if there is any evidence before you in this case
       regarding the defendant having committed an alleged offense or offenses other than
       the offense alleged against him in the indictment in this case, you cannot consider
       such evidence for any purpose unless you find and believe beyond a reasonable doubt
       that the defendant committed such other offense or offenses, if any, and even then
       you may only consider the same in determining identity in connection with the
       offense, if any, alleged against him in the indictment and for no other purpose.
       33
           According to the testimony at trial, the hairs were submitted to laboratories for testing
four separate times over a period of more than twenty years and the samples were renumbered
each time.
       34
            Segundo, 270 S.W.3d at 90.

                                                  12
it took pains to focus on “the unemotional science of DNA profiling and identification, not the

gory details of the extraneous murder.”35 Nevertheless, the fact remains that nearly one-third of the

trial testimony focused on an offense for which Norwood was not on trial. This factor arguably

weighs against the admissibility of the evidence.36

                The fourth factor examines the State’s need for the evidence. This case was more

than twenty-five years old by the time it was tried. There were no eyewitnesses to Christine’s

murder. In fact, as the State acknowledged, all of the evidence connecting Norwood to the murder

was circumstantial. Although the presence of both Norwood’s DNA and Christine’s blood on a

bandana found at a construction site near Christine’s house might be compelling circumstantial

evidence of Norwood’s guilt, it “does not directly identify him as her attacker.”37 Under these

circumstances, the district court could have reasonably found that the State had a considerable need

to present evidence related to the Baker murder.38 This factor, therefore, favors admissibility of the

extraneous-offense evidence.

                When all four factors are considered together, only the third factor, the time spent

developing the evidence concerning the extraneous offense, arguably weighs against admissibility.


       35
          Id. The State notes that of the seventeen witnesses that testified regarding the Baker
murder, fourteen were either law enforcement officers or forensic scientists.
       36
           See McGregor, 394 S.W.3d at 121-22 (holding factor weighed in favor of exclusion when
evidence of extraneous offense amounted to approximately thirty-three percent of trial time); Newton
v. State, 301 S.W.3d 315, 320-21 (Tex. App.—Waco 2009, pet. ref’d) (same, twenty-seven percent);
Russell v. State, 113 S.W.3d 530, 545-46 (Tex. App.—Fort Worth 2003, pet. ref’d) (same,
thirty percent).
       37
            See Jabari, 273 S.W.3d at 753.
       38
         See Taylor, 920 S.W.2d at 323; Hartsfield v. State, 305 S.W.3d 859, 872-73
(Tex. App.—Texarkana 2010, pet. ref’d).

                                                 13
We conclude that the district court was within the zone of reasonable disagreement when it found

that the probative value of evidence related to the Baker murder was not substantially outweighed

by its prejudicial effect.39 We cannot conclude on this record that the district court abused its

discretion in admitting evidence related to the Baker murder pursuant to Rule 403.

                We overrule Norwood’s second issue.


                                         CONCLUSION

                We affirm the judgment of the district court.



                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 15, 2014

Do Not Publish




       39
            See Taylor, 920 S.W.2d at 322-23; McGregor, 394 S.W.3d at 120-22.

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