




NO








NO. 12-09-00218-CR
 
                         IN
THE COURT OF APPEALS
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
 
LAZARUS LEE DAVIS,
APPELLANT                                                     '     APPEAL
FROM THE 241ST
 
V.                                                                         '     JUDICIAL
DISTRICT COURT OF
 
THE STATE OF TEXAS,                                 '     SMITH
COUNTY, TEXAS
APPELLEE
 


MEMORANDUM
OPINION
            Lazarus
Lee Davis appeals his conviction for aggravated robbery.  He raises three
issues on appeal.  We affirm. 
 
Background
            On
January 17, 2009, Sallee Brown, a sixty-five year old female, stopped at a
convenience store for a snack.  Shortly after departing the store, she missed
her turn and pulled into a parking lot to turn around.  A red Jeep then pulled
in behind her, blocking Brown’s car, and prevented her escape.  Brown
recognized one of the Jeep’s occupants from the convenience store. That person
was later identified as Natalie Saur.  Appellant was sitting in the back seat
of the Jeep.  The driver of the Jeep, who was later identified as Christopher
Watson, exited the vehicle and demanded Brown’s money.  When Brown refused,
Watson retrieved what was later determined to be a BB gun from Saur, pointed it
at Brown, and again demanded her money.  Brown then complied.  Watson returned
to the Jeep and left the scene along with Appellant and Saur.  Brown followed
the Jeep for a few miles, called 911, provided a description of the Jeep, and
told the dispatcher the first three numbers of the Jeep’s license plate. 
Watson was eventually able to evade Brown. 
Later,
Tyler Police Department Officer Luis Aparacio observed a vehicle matching the
description of the Jeep used in the robbery.  After initiating his overhead
lights, a high speed chase ensued, during which Watson drove through
residential neighborhoods at high speeds without his lights in the dark of
night.  Watson, Saur, and Appellant abandoned the vehicle and ran into the
woods. Saur was apprehended, but Watson and Appellant escaped together.  Watson
and Appellant used the proceeds of the robbery to purchase food and pay a third
party for a ride back to their homes in another area of Tyler.[1] 
Upon questioning by police, Saur identified Watson and Appellant as the other
occupants of the vehicle, who were later arrested and indicted for aggravated
robbery.
            Appellant
pleaded not guilty.  At trial, Appellant’s defense was that he was merely
present during the course of the robbery, and that he played no role in its
commission.  The jury found Appellant guilty of the offense of aggravated
robbery as alleged in the indictment and sentenced him to thirty-six years of
imprisonment.  Appellant timely appealed. 
 
Failure to Provide Notice of Extraneous
Offense Evidence
            In
his first issue, Appellant argues that, after he timely requested notice, the
State failed to provide reasonable notice of extraneous offenses that it
intended to offer against Appellant during its case-in-chief.
Standard of Review and
Applicable Law
We
review claims challenging the admission of extraneous offenses for an abuse of
discretion and will affirm the trial court's decision if it is within the zone
of reasonable disagreement.  McDonald v. State, 179 S.W.3d 571,
576 (Tex. Crim. App. 2005).  An extraneous offense is any act of misconduct,
whether resulting in prosecution or not, which is not shown in the charging
instrument and which was shown to have been committed by the accused.  Hernandez
v. State, 817 S.W.2d 744, 746 (Tex. App.—Houston [1st Dist.] 1991, no
pet.).  
If
the defendant makes a timely request, the State must provide “reasonable notice
 . . . in advance of trial” of its intent to introduce evidence of extraneous
conduct.  Tex. R. Evid. 404(b). 
“Reasonable notice” is not defined in the rule, and therefore depends on the
facts and circumstances of each individual case.  Scott v. State,
57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet. ref’d).  What is clear, however,
is that when proof of the extraneous offenses is contained in the state’s file,
the state’s reference to its open file policy is not reasonable notice.  Buchanan
v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995).
If
an abuse of discretion is found because notice was unreasonable, a harm
analysis is required under Texas Rule of Appellate Procedure 44.2.  Wallace
v. State, 135 S.W.3d 114, 118 (Tex. App.—Tyler 2004, no pet.).  An
untimely notice is harmful if the accused was surprised by the evidence.  Hernandez
v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005).  It is also
harmful if the lack of reasonable notice affected the accused’s ability to
mount an adequate defense, that is, affected his ability to prepare cross examination
or present mitigating evidence.  McDonald, 179 S.W.3d at 579; Wallace,
135 S.W.3d at 118-19. 
Discussion
First,
the State argues that Appellant failed to preserve his challenge to the
sufficiency of the 404(b) notice because the State presented evidence of
Appellant’s alleged extraneous offenses at trial without objection.  Before the
trial began, the State reminded the court of its intention to offer evidence of
extraneous offenses.  The court then heard the State’s proffer of evidence as
to the extraneous offenses, along with Appellant’s initial objections.  As
relevant to this appeal, the State intended to offer evidence of a burglary of
the Pulse Skate Shop on January 15, 2009, the robbery of an older woman at the
East Texas Medical Center (“ETMC”) on January 16, 2009, and the theft of an
iPod charger on January 17, 2009.  These offenses were allegedly part of a
crime spree by Appellant, Watson, and to a lesser extent, Saur.  Appellant
initially had no complaint as to evidence of the Pulse Skate Shop burglary, but
voiced objection to evidence of the ETMC robbery.  The trial court continued
the hearing until the following morning.  When the hearing resumed, Appellant
objected that he was provided insufficient notice of the State’s intent to
offer evidence of the three extraneous offenses.  The trial court overruled his
objection, concluding that the notice was timely and reasonable and met the
requirements of rule 404(b).  We hold that Appellant’s objection was timely and
specific.  Therefore, Appellant properly preserved this issue.  See Tex. R. App. P. 33.1(a).
Turning
to the merits of Appellant’s complaint, we first note that the State chose not
to introduce evidence of theft of the iPod charger.  Therefore, although
undisclosed, Appellant cannot show that he was harmed by evidence of a theft
not introduced against him. 
Next,
with respect to the Pulse Skate Shop burglary, the State’s 404(b) notice
identified a burglary offense committed by Appellant “on or about the 17th
day of January, 2009, in cause number 241-0484-09, in Smith County, Texas, the
defendant committed the felony offense of Burglary of a Building.”  The date in
the State’s 404(b) notice incorrectly referred to the date of the Pulse Skate
Shop burglary as January 17, 2009.  That incident occurred on January 15,
2009.  The offense in the instant case occurred on January 17, 2009, two days
after the Pulse Skate Shop burglary.  Police apprehended Appellant on January
17, 2009, and he remained in jail after that time, unable to commit further
burglaries. Moreover, the State’s witness list disclosed the identities of the
skate shop owners with the words “Pulse Board Shop” in the address section. 
Finally, defense counsel admitted he had notice that the State intended to
offer evidence related to that burglary.  Specifically, defense counsel stated,
“Judge, even though [the 404(b) notice] has the [Pulse Skate Shop] burglary of
a building in there -- that’s my mistake -- there’s nothing in there about the
theft and the [ETMC] robbery case, Judge.”  Therefore, we hold that the State satisfied
rule 404(b)’s notice requirement as to the Pulse Skate Shop burglary.
            As
to the ETMC robbery, Appellant is correct that the State’s 404(b) notice does
not expressly identify the offense in question.  The State argues, however,
that the following disclosure in its 404(b) notice rectifies its failure to
identify the ETMC robbery: “[a]nything contained in the discovery materials
provided now or in the future with regard to any extraneous offenses, or bad
acts which are mentioned or anything noticed in open Court or contained in
motions filed with the Court.” 
Irrespective
of whether the State’s notice violated rule 404(b), a question we do not reach,
we conclude that Appellant was not surprised, and therefore not harmed, by the
introduction of evidence relating to the ETMC robbery.  Prior to Appellant’s
trial in the instant case, the State produced transcripts of court proceedings
against Watson from the ETMC robbery case, which disclosed Appellant’s role in
that robbery and the potential witnesses against him.[2] 
Moreover, the State’s witness list in the instant case disclosed the ETMC
robbery victim’s identity.  Armed with this information, Appellant could not
have been surprised by the evidence.  Appellant did not ask for a continuance
or show how his defense strategy might have differed.  We do not condone the
State’s failure to expressly list the ETMC robbery in its rule 404(b) notice. 
However, under the facts of this case, we hold that Appellant was not harmed by
it.  See Hernandez, 176 S.W.3d at 825-26.  Appellant’s first
issue is overruled.
 
Rule 403 Challenge to Extraneous Offense
Evidence
In
his second issue, Appellant contends that the trial court abused its discretion
by admitting evidence of the ETMC robbery because the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice. 
Standard of Review and
Applicable Law
The
appellate court reviews the trial court’s ruling on a rule 403 objection under
an abuse of discretion standard.  State v. Mechler, 153 S.W.3d 435,
439 (Tex. Crim. App. 2005).  An appellate court is not to reverse a trial court
where its ruling was within the zone of reasonable disagreement.  Id.
at 440.  The “test for whether the trial court abused its discretion is whether
the action was arbitrary or unreasonable.”  Id. at 439.  
Relevant
evidence is defined as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  Relevant evidence
is generally admissible, while irrelevant evidence is inadmissible.  Tex. R. Evid. 402. 
Rule
404 provides that “evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show that he acted in conformity
therewith.”  Tex. R. Evid.
404(b).  Evidence of “other crimes, wrongs or acts” may be admissible if it has
relevance apart from its tendency “to prove the character of a person in order
to show action in conformity therewith.”  Tex.
R. Evid. 404(b).
The
permissible “purposes” for which evidence of “crimes, wrongs, or acts” may be
introduced include “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”  Tex. R. Evid. 404(b).  Extraneous
offense evidence that logically serves any of these purposes is “relevant”
beyond its tendency “to prove the character of a person in order to show action
in conformity therewith,” but may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice. . . .”  Tex. R. Evid. 403, 404(b).  A proper
rule 403 analysis includes, but is not limited to, four 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.  Mechler, 153 S.W.2d
at 440.
Discussion
Appellant
does not appear to challenge the admissibility of the evidence under rule
404(b).  Rather, Appellant argues that the testimony and other evidence related
to the ETMC robbery should have been ruled inadmissible by the trial court
under rule 403 because any probative value that the evidence has is
substantially outweighed by the danger of unfair prejudice. 
Here,
the ETMC robbery was committed the evening prior to the robbery of Brown in the
instant case.  Appellant and Watson acted together in both robberies.  Both
robberies were committed against lone, older women using surprise, speed, and
strength through force or the threat of force.  Both robberies were committed
while using the same vehicle, a red Jeep, as a means of escape.  In addition to
the presence of Saur in the instant case, the primary difference between the
robberies is that Appellant was allegedly the primary actor in the ETMC
robbery, while Watson was the primary actor in the  robbery of Brown. 
Therefore, the probative value of the evidence is great, because it
demonstrates that Appellant and Watson acted together in a continuing criminal
enterprise, the robbery of older women.  Consequently, this evidence rebutted
Appellant’s defensive theory that he was not a party to the offense in the
instant case, but was merely present in the Jeep while the robbery transpired. 
Although
there was the potential that the jury might have been confused by testimony of
these similar crimes, the State and defense counsel carefully separated the
offenses during the questioning of the witnesses testifying about the ETMC
robbery.  This evidence did not likely impress the jury in an irrational or
indelible way because the evidence actually served to explain Appellant’s role
in this crime by demonstrating the pattern of Appellant and Watson’s criminal
conduct.  This evidence was important to the State’s case, because Appellant’s
theory was that he was merely present in the Jeep, and was unaware that a
robbery was about to occur.  Defense counsel pursued this theory vigorously
throughout the trial and in jury argument.  Upon a careful review of the
record, we conclude that the trial court did not abuse its discretion in
overruling Appellant’s rule 403 objection.  Appellant’s second issue is
overruled.
 
Factual Sufficiency of the Evidence
            In his third issue,
Appellant argues that the evidence is factually insufficient to support his
conviction. 
Standard of Review
In
conducting a factual sufficiency review, we look at the evidence in a neutral
light.  Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.
2008).  A verdict will be set aside if the evidence supporting the conviction,
although legally sufficient, is so weak that the jury’s determination is
clearly wrong and manifestly unjust, or if there is some objective basis in the
record that shows the great weight and preponderance of the evidence contradicts
the jury’s verdict.  Berry v. State, 233 S.W.3d
847, 854 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404,
414-15, 417 (Tex. Crim. App. 2006).  A clearly wrong and unjust verdict occurs
where the jury’s finding is manifestly unjust, shocks the conscience, or
clearly demonstrates bias.  Berry, 233 S.W.3d at 854.
Although
we are authorized to disagree with the jury’s determination, even if probative
evidence exists that supports the verdict, our evaluation should not
substantially intrude upon the jury’s role as the sole judge of the weight and
credibility of witness testimony.  Santellan v. State, 939 S.W.2d
155, 164 (Tex. Crim. App. 1997).  Unless we conclude that it is necessary to
correct manifest injustice, we must give due deference to the jury’s
determinations.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim.
App. 2000).  It is not enough that we might harbor a subjective level of
reasonable doubt to overturn a conviction that is founded on legally sufficient
evidence.  See Watson, 204 S.W.3d at 417. 
 
Applicable Law
A
person commits the offense of robbery if, “in the course of committing theft
... he intentionally, knowingly, or recklessly causes bodily injury to another”
or “intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death.”  Tex. Penal
Code Ann. § 29.02(a)(1)-(2) (Vernon 2003).  A person commits the offense
of aggravated robbery if, in the course of committing a robbery, he uses or
exhibits a deadly weapon, or causes bodily injury to, or threatens or places a
person 65 years of age or older in fear of imminent bodily injury or death.  Id.
§ 29.03(a)(2)-(3) (Vernon 2003). 
An
individual is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or both.  Tex.
Penal Code Ann. § 7.01(a) (Vernon 2003).  A party may be criminally
responsible as a party in several ways.  See id. §§ 7.01-.02
(Vernon 2003).  As pertinent here, a person is criminally responsible for an
offense committed by another if, acting with intent to promote or assist the
commission of the offense, the person solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.  Id.
§ 7.02(a)(2).  When a party is not the primary actor, the State must prove
conduct constituting an offense plus an act by the defendant done with the
intent to promote or assist such conduct.  Beier v. State, 687
S.W.2d 2, 3 (Tex. Crim. App. 1985); Miller v. State, 83 S.W.3d
308, 313 (Tex. App.—Austin 2002, pet. ref'd).  Although a factor to be
considered, mere presence alone is not sufficient to support a conviction under
the law of parties.  Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim.
App. 1979). 
“Evidence
that a person is a party to an offense may be entirely circumstantial, but the
evidence must show that the parties were acting together to accomplish their
common purpose.”  Hayes v. State, 265 S.W.3d 673, 681 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).  “Any agreement to accomplish a common purpose must
have been made before or contemporaneously with the criminal event, but in
determining participation in an offense, the court may examine events that
occurred before, during, and after the offense was committed.”  Id. at
681-82.   Finally, while flight alone will not support a guilty verdict,
evidence of flight from the scene of a crime is a circumstance from which an
inference of guilt may be drawn.  Valdez v. State, 623 S.W.2d
317, 321 (Tex. Crim. App. 1979).
Discussion
            Appellant
argues that the only evidence to connect him to the offense is that (1) “Appellant
laughed when Watson drove off to chase Brown,” (2) “Appellant ducked down while
Watson and Saur committed the offense,” (3) “Appellant told Watson he was
‘stupid’ after he committed the offense,” and (4) “Appellant ran when Watson
wrecked the Jeep.”  Consequently, he argues he was merely present during the
offense and is not criminally responsible under the law of parties.  Therefore,
he concludes the evidence is factually insufficient to support the verdict.
            However,
the evidence reveals that Saur told Watson she saw Brown in the convenience
store and that Brown had a large amount of money.  Watson then told Appellant
to enter the Jeep so that they could follow Brown.  Watson gave Appellant a
“look,” immediately followed by a “laugh” from Appellant, which Watson implicitly
took to mean that Appellant knew that a robbery would likely take place.  Saur,
riding along for her first robbery, testified that she knew immediately that
they would soon rob Brown, and that Appellant likely reached the same
conclusion.  Less than a minute later, Brown entered a parking lot and Watson
blocked her escape with the Jeep.  Appellant then concealed his presence in the
Jeep by “ducking” in the seat.  This act was an attempt to conceal how many
people were in the car so as to evade identification by the police.  
Moreover,
right after the robbery, all three individuals were actively seeking suitable
license plates to switch with those on the Jeep, as they had in the prior ETMC
robbery.  This plan, in which Appellant played a part, also assisted in their
escape.  Watson testified that during the high speed chase, Appellant
encouraged their escape because he did not want to get “locked back up.”  Once
they abandoned the vehicle, Appellant and Watson fled together.  During their
escape, Watson and Appellant heard what they believed to be a gunshot resulting
in the death of Saur.  Although this bore no relationship to reality, Watson
cried.  In an effort to calm Watson and to help motivate him to assist in their
joint escape, Appellant told Watson “in five minutes or an hour, if I’m not at
my girl’s house, I lost my girl, too.”  Finally, they used the proceeds of the
robbery to buy food and to pay for a ride back to their homes.  
From
this evidence, the jury was entitled to find that Appellant knew of the robbery
plan, took an active part in its commission, and actively participated in their
escape.  This evidence, in conjunction with the extraneous offenses, such as
the very similar ETMC robbery, demonstrated that Appellant and Watson were
partners in a criminal enterprise designed to rob older women, making it more
likely that Appellant participated in the robbery against Brown.  Therefore,
the evidence is factually sufficient to support the verdict.  Appellant’s third
issue is overruled. 
Disposition
            We affirm the judgment of the
trial court.
 
 
                                                                                                    
SAM GRIFFITH    
 
                                                                                                             
Justice
Opinion delivered August 25, 2010.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(DO NOT PUBLISH)




[1]
Watson’s testimony was equivocal as to whether the proceeds of the robbery were
used to purchase food.  


[2]
Although the timing is not entirely clear from the record, it appears that the
transcripts were disclosed well in advance of Appellant’s trial date. 
Specifically, the trial court stated that the ETMC robbery transcripts “were
provided to Defense counsel . . . [at] some date well prior to trial.”  Defense
counsel replied that “[y]eah, that is correct” and that “I did get copies of
transcripts Volume 1 and 2” of the ETMC robbery case against Watson.  


