                     COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH


                           NO. 2-08-286-CR


JEFFREY O'NEAL DODSON A/K/A                       APPELLANT
JEFFERY ONEIL DODSON

                                     V.

THE STATE OF TEXAS                                    STATE

                                 ------------

    FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                 ------------

                    MEMORANDUM OPINION1

                                 ------------

                           I. INTRODUCTION




    1
     See Tex. R. App. P. 47.4.
      Appellant Jeffrey O=Neal Dodson a/k/a Jeffery Oneil Dodson appeals his

conviction for capital murder. In one point, Dodson argues that the trial court

abused its discretion by admitting extraneous offense evidence during the

guilt-innocence phase of trial in violation of rules 403 and 404(b). See Tex. R.

Evid. 403, 404(b). We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      On June 11, 2007, at approximately 4:00 p.m., Dodson; his brother,

Theodis Dodson; and their cousin, Fredrick Hughs, went to the D&S Food Mart

in Bedford, Texas. Dodson and Theodis went into the store, while Hughs

stayed outside in Dodson=s Suburban. Gaurab Rajbanshi, the store=s clerk,

was working that day. While in the store, Dodson and Theodis got a beer out

of the cooler, waited for the only customer in the store to leave, and then went

to the cash register to pay. At that point, Dodson pulled out a gun and shot

Rajbanshi, who immediately fell to the ground. One of the two men then

jumped over the counter and began stomping on the cash register to get it to

open. Rajbanshi died at the scene.

      Shortly after the robbery and murder, the Bedford police, who had

released the videotape surveillance of the robbery to the news media, received

a tip that Hughs and Theodis were the individuals depicted on the surveillance

tape. As a result of the tip, Hughs was arrested. Hughs told the police that

                                       2
Dodson and Theodis went into the D&S Food Mart, that Dodson shot

Rajbanshi, and that Hughs waited outside the store in Dodson=s Suburban.

Hughs eventually led police to the gun, a .380 caliber semiautomatic handgun,

which was in a field close to the apartment where Dodson was staying after the

robbery. Additionally, the police located ammunition approximately fifty feet

from the apartment.

      Testing confirmed that the gun found near the apartment was the same

gun used in the robbery and murder.         Ronald Singer, the crime laboratory

director for the Tarrant County Medical Examiner=s Office, testified that the

shell casing found at the scene and the bullet fragment taken from Rajbanshi=s

head during the autopsy were fired from the gun found in the field at the

apartment.

      Dodson was indicted for capital murder. He pleaded not guilty to the

charge, and the case went to trial. After finding Dodson guilty of the offense,

the jury sentenced him to life imprisonment without the possibility of parole.

This appeal followed.

                        III. EXTRANEOUS OFFENSE EVIDENCE

      In Dodson=s only point, he argues that the trial court abused its discretion

by admitting at the guilt-innocence phase of trial extraneous offense evidence



                                        3
of a robbery that occurred on June 4, 2007, at a convenience store in

Watauga. See Tex. R. Evid. 403, 404(b).




      A.    Standard of Review

      When reviewing a trial court=s decision to admit extraneous offense

evidence under rule 404(b), or over a rule 403 objection, an appellate court

applies an abuse-of-discretion standard. See De La Paz v. State, 279 S.W.3d

336, 343 (Tex. Crim. App. 2009). A trial court abuses its discretion only

when its decision lies outside Athe >zone of reasonable disagreement.=@ Id. at

343B44.

      B.    Rule 404(b)

      The general rule is that the defendant is to be tried only for the offense

charged, not for any other crimes or for being a criminal generally. Segundo v.

State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008); Crank v. State, 761

S.W.2d 328, 341 (Tex. Crim. App. 1988). Evidence of extraneous acts of

misconduct may be admissible if (1) the uncharged act is relevant to a material

issue in the case and (2) the probative value of that evidence is not significantly

outweighed by its prejudicial effect. Segundo, 270 S.W.3d at 87.



                                        4
      AEvidence of other crimes, wrongs or acts@ may not be admitted during

the guilt-innocence phase of trial Ato prove the character of a person in order to

show action in conformity therewith.@ Tex. R. Evid. 404(b); Marc v. State,

166 S.W.3d 767, 775 (Tex. App.CFort Worth 2005, pet. ref=d).                Such

evidence of extraneous offenses may be admitted to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. Tex. R. Evid. 404(b). The court of criminal appeals has

explained, A>Rule 404(b) is a rule of inclusion rather than exclusion.= The rule

excludes only that evidence that is offered (or will be used) solely for the

purpose of proving bad character and hence conduct in conformity with that

bad character.@ De La Paz, 279 S.W.3d at 343 (footnotes omitted). The

State, as the proponent of extraneous offense evidence, bears the burden of

showing admissibility.     Russell v. State, 113 S.W.3d 530, 535 (Tex.

App.CFort Worth 2003, pet. ref=d); Rankin v. State, 974 S.W.2d 707, 718

(Tex. Crim. App. 1998) (op. on reh=g). Extraneous offense evidence may also

be admissible to rebut a defensive theory. Moses v. State, 105 S.W.3d 622,

626 (Tex. Crim. App. 2003).

      The State asserts that the extraneous offense evidence was relevant to

establish Dodson=s identity because Dodson repeatedly raised the issue of his

identity as one of the robbers during the trial.

                                        5
      One of the main rationales for admitting extraneous offense evidence is

to prove the identity of the offender. Segundo, 270 S.W.3d at 88; Castillo v.

State, 739 S.W.2d 280, 289 (Tex. Crim. App. 1987). An extraneous offense

may be admissible to show identity only if identity is at issue in the case. Page

v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). The trial judge has

considerable latitude in determining that identity is, in fact, disputed.     Id.

Identity may be placed in dispute by cross-examination as well as by

affirmative evidence offered by the defense. Id.

      The theory behind admitting extraneous offense evidence to prove

identity is usually that the pattern and characteristics of the charged crime and

the extraneous offense evidence are so distinctively similar that they constitute

a A>signature.=@ Segundo, 270 S.W.3d at 88; Beets v. State, 767 S.W.2d 711,

740B41 (Tex. Crim. App. 1988) (op. on reh=g). 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. Segundo, 270 S.W.3d at 88; Taylor v. State,

920 S.W.2d 319, 322 (Tex. Crim. App. 1996). However, if the similarities

are A>generic,=@ i.e., they are typical to this type of crime, they will not

constitute a A>signature=@ crime.    Segundo, 270 S.W.3d at 88 (footnote

                                       6
omitted); Curtis v. State, 89 S.W.3d 163, 172B74 (Tex. App.CFort Worth

2002, pet. ref=d).

      Here, Dodson concedes in his brief that the only issue at trial was

whether he was the killer depicted on the surveillance tape. Additionally,

Dodson placed identity in issue during his cross-examination of Dr. Gary Sisler,

deputy medical examiner for Tarrant County. During his cross-examination,

Dodson questioned Dr. Sisler on whether an individual who had suffered a

ruptured intestine and undergone surgery, which was the case for Dodson,

would be able to jump over a counter a few weeks after the operation.

Because identity was placed in issue, we must compare the circumstances of

the charged offense and the extraneous offense to determine if they were

sufficiently similar to make the extraneous offense admissible to prove identity.

See Segundo, 270 S.W.3d at 88.

      On June 4, 2007, at approximately 10:00 p.m., Kamal Luitel was

working as a cashier at the One Stop Pantry in Watauga, Texas, when he saw

two men, whom he later identified as Dodson and Theodis, walk into the

store.2 When Dodson and Theodis brought their beers to the cash register,


      2
        At trial, Luitel testified that when shown the photo lineups, he told the
police Amaybe this guy, maybe this person, but maybe -- I=m not sure.@
However, Sergeant Steve Hickman, with the Watauga Police Department,
testified that Luitel identified both Dodson and Theodis out of photo lineups,

                                       7
Luitel asked them if they were going to pay separately or together, and they

replied that they were going to pay separately.




within ten seconds of viewing them, as the people who robbed him.


                                      8
      Luitel stated that one of the men then gave him a dollar to pay for his

beer. Luitel testified that when he went to open the cash register, one of the

men jumped over the counter and hit him in the head with a gun.               Luitel

suffered a laceration to the head, which required five stitches, and he suffered

pain in two fingers, which was the result of him shielding his face from being

hit with the gun.    Dodson contends that the similarities between the two

crimes are Aso random and illogical that it strains credulity to label these

offenses as >signature offenses.=@

      A comparison of the charged offense and extraneous offense, however,

shows a high degree of similarity. Both offenses, which were committed a

week apart, occurred in convenience stores when only one person was

working, and no other customers were in the store. In both cases, Dodson

and Theodis, who were wearing hats, pretended to purchase beer so that the

clerk would open the cash register. Additionally, after attacking the clerk with

a gun, one of the men would jump over the counter to get money out of the

register.

      Further, the same gun was used during the commission of both offenses.

Ballistics tests confirmed that the gun that was found in the field fired the bullet

that killed Rajbanshi.    When testing that same gun, the magazine was

swabbed, and after testing, it was confirmed that it had Luitel=s DNA on it.

                                         9
Additionally, testing of Dodson=s tennis shoes showed a DNA profile on the

right shoelace that matched Luitel=s DNA profile.

      We hold that the trial court did not abuse its discretion by admitting the

extraneous offense for the permissible purpose of proving Dodson=s identity.

See Tex. R. Evid. 404(b). We must now turn to a rule 403 balancing test.

See Tex. R. Evid. 403.

      C.    Rule 403

      Although 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. Id.

      Once a rule 403 objection is made, the trial court must weigh the

probative value of the evidence to determine if it is substantially outweighed by

its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169

(Tex. Crim. App. 1997). A rule 403 balancing test includes the following

factors: (1) the inherent probative force of the proffered item of evidence

along with (2) the proponent=s need for that evidence against (3) any tendency

of the evidence to suggest decision on an improper basis, (4) any tendency of

the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been

                                       10
equipped to evaluate the probative force of the evidence, and (6) the likelihood

that presentation of the evidence will consume an inordinate amount of time or

merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d

637, 641B42 & n.8 (Tex. Crim. App. 2006).3

            1.    Probative Value and Need

      The trial court could have concluded that the extraneous offense

evidence was highly probative to show Dodson=s identity as one of the

perpetrators in the D&S Food Mart robbery and murder of Rajbanshi. Ballistics

tests confirmed that the same gun was used in the One Stop Pantry robbery

and the D&S Food Mart robbery and murder, and Luitel=s DNA was found on

Dodson=s shoelace and the gun magazine.              This evidence aids the

identification of Dodson in the D&S Food Mart robbery.        Additionally, the

record supports a finding that the State had a significant need for the

extraneous offense evidence.

            2.    Unfair Prejudice




      3
       Although Dodson, the State, and the trial court rely on the rule 403
factors set out in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App.
1990) (op. on reh=g), we recognize that the court of criminal appeals expanded
on the factors in Gigliobianco. 210 S.W.3d at 641B42. Accordingly, our rule
403 analysis will involve the Gigliobianco factors.


                                      11
         The trial court could have reasonably determined that the extraneous

offense evidence did not have a tendency to suggest a decision on an improper

basis.     Although the extraneous evidence had the potential to evoke an

emotional response in the jury, it is clear from the record that the State

introduced the evidence to explain Dodson=s identity as one of the assailants.

Additionally, the trial court instructed the jury that it could only consider the

extraneous offense evidence Ain determining the proof of intent, preparation,

knowledge, identity, or existence of conspirator relationship between Theodis

and Jeffrey Dodson, if any, in connection with the crime alleged in the

indictment in this case, and for no other purpose.@

              3.    Confusion of the Issues

         Here, the testimony of the State=s witnesses about the D&S Food Mart

robbery and murder of Rajbanshi trial lasted three days.        The State called

nineteen witnesses, and only four of them testified about the One Stop Pantry

robbery. Dodson argues that the State Adevoted a considerable amount of

time and effort in developing evidence of the extraneous offense,@ citing the

fact that the testimony occupied the entire last day of the State=s case-in-chief.

However, the record reflects that the State=s presentation of the extraneous

offense evidence consumed only approximately two hours forty-nine minutes,



                                       12
including the trial court=s jury instruction and Dodson=s cross-examination of

the witnesses, of the three-day trial.

      Additionally, the trial court reasonably could have concluded that the

extraneous offense evidence assisted the jury in understanding Dodson=s

identity as one of the robbers in the D&S Food Mart robbery. Accordingly, the

trial court could have reasonably concluded that the extraneous offense

evidence did not have a tendency to confuse or distract the jury from the main

issues in the case.

            4.    Misleading the Jury

      The State=s evidence regarding the D&S Food Mart robbery and murder

was more detailed than the extraneous offense evidence. Additionally, the

D&S Food Mart robbery was the focus of the State=s case. Although the State

presented evidence of the extraneous offense, it did not suggest that the

evidence could be used to convict Dodson for the offense of capital murder.

The extraneous offense evidence was presented in a fashion to prove Dodson=s

participation in the D&S Food Mart robbery and murder. Accordingly, the trial

court could have reasonably concluded that the extraneous offense evidence

did not have a tendency to be given undue weight by a jury that was not

equipped to evaluate the probative force of the evidence.



                                         13
            5.    Undue Delay and Needless Presentation of Cumulative
                  Evidence

      As stated above, although the testimony of the State=s witnesses lasted

three days, less than a total of three hours was spent by the prosecutor

presenting evidence, the trial court instructing the jury, and the defense

cross-examining the witnesses concerning the extraneous offense. As such,

the trial court could have reasonably concluded that the presentation of the

extraneous offense evidence would not consume an inordinate amount of time.

Additionally, the trial court could have determined that the extraneous offense

evidence was not cumulative of other evidence presented at trial.

      After balancing the rule 403 factors, we conclude that the trial court

could have reasonably determined that the probative value of the extraneous

offense evidence was not substantially outweighed by the countervailing

factors specified in the rule. See Tex. R. Evid. 403.

      We hold that the trial court did not abuse its discretion by admitting the

extraneous offense evidence. See Tex. R. Evid. 403, 404(b). Accordingly,

we overrule Dodson=s sole point.

                               IV. CONCLUSION

      Having overruled Dodson=s sole point, we affirm the trial court=s

judgment.


                                      14
                                    BILL MEIER
                                    JUSTICE

PANEL: MCCOY and MEIER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 22, 2010




                               15
