      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00626-CR



                                Keith Leanell Carter, Appellant

                                                 v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF DALLAS COUNTY, 292ND JUDICIAL DISTRICT
      NO. F-0242680-RV, HONORABLE HENRY M. WADE, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Keith Leanell Carter was convicted of aggravated robbery. His punishment

was enhanced by a prior felony conviction, and he was sentenced to forty-five years’ imprisonment.

See Tex. Pen. Code Ann. § 29.03(a)(2) (West 2003). He now appeals, arguing that the evidence was

factually insufficient to support his conviction and that the trial court abused its discretion in

admitting testimony regarding a similar incident involving appellant. We will affirm.

               The victim was robbed at gunpoint by a man she described as African-American,

wearing a short-sleeved “orangey” shirt, with his hair in “corn-rows.” The victim picked appellant

from a photographic line-up. At trial, she identified appellant in open court. The identification was

supported by other evidence. A group of men attempted to use one of the victim’s credit cards to

purchase liquor later the same day. One of the men was dressed as the victim described her assailant,
although the liquor-store surveillance camera did not show the men’s faces. Appellant’s finger prints

were found on several of the bottles of alcohol the men had attempted to purchase. Also, three of

the victim’s checks were fraudulently passed at a local grocery store. On each of the three occasions,

the cashier who accepted the check was appellant’s sister.

                Appellant contends that the evidence was factually insufficient to support his

conviction. Appellant argues that the victim’s identification of him is inadequate because the victim

failed to testify that appellant has tattooed arms. Appellant’s girlfriend testified at trial that appellant

had facial hair at the time of the alleged robbery, although the victim had described him as clean-

shaven. Appellant’s girlfriend also testified that appellant has distinctive light-colored eyes and

facial hair. Appellant characterizes this evidence as disproving the State’s case. The State responds

that a witness’s failure to describe a particular aspect of a suspect’s appearance does not render the

evidence insufficient to support the verdict.

                In a factual sufficiency review, we view the evidence in a neutral light, favoring

neither party, to determine (1) if the evidence of guilt is so weak as to render the verdict clearly

wrong or manifestly unjust or (2) if the finding of a vital fact is so contrary to the weight and

preponderance of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.

App. 2000); see also Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003); Goodman v.

State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). We do not realign, disregard, or reweigh the

evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.). The trier

of fact has the responsibility of weighing all the evidence, resolving evidentiary conflicts, and

drawing reasonable conclusions from the evidence. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim.

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App. 2001). A decision is not manifestly unjust simply because the trier of fact resolves conflicting

views of the evidence in the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin

1999, pet. ref’d).

                The jury was faced with two witnesses who gave conflicting testimony. The victim

identified appellant and testified that he had robbed her. Appellant’s girlfriend testified that

appellant’s physical appearance had been different at the time of the robbery and that the victim had

not mentioned certain of appellant’s distinguishing characteristics, i.e., tattooed arms, light-colored

eyes, and light-colored facial hair. Faced with a choice between these two witnesses, the jury

appears to have given greater credibility to the victim’s testimony. This determination is within the

jury’s authority as factfinder, and we will not disturb its findings.         The victim’s positive

identification of appellant, taken together with the other circumstantial evidence, is factually

sufficient. See Davis v. State, 831 S.W.2d 839, 842 (Tex. App.—Dallas 1992, pet. ref’d) (affirming

aggravated-robbery conviction by jury where only one eyewitness identified appellant and appellant

presented five alibi witnesses). Having reviewed the entire record, we do not believe that this result

is manifestly unjust. Appellant’s first point of error is overruled.

                Appellant also argues that the trial court erred in admitting testimony regarding a

second aggravated robbery. At trial, appellant’s counsel attempted to call into question the victim’s

identification of appellant by arguing that the witness had failed to mention some of appellant’s

distinguishing characteristics in making her statement. On cross-examination, appellant’s counsel

asked several witnesses about appellant’s arm tattoos. The State then offered the testimony of

another aggravated robbery victim, who testified that appellant had robbed her in a similar manner

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within a week of the charged offense. The State characterized this evidence as going to prove

appellant’s identity, which it argued appellant’s counsel had put in issue during cross-examination.

Appellant now argues that the testimony was improper because it referenced an extraneous prior

offense and that it was more prejudicial than probative.

               Evidence of other crimes, wrongs, or acts, although inadmissible to prove character

conformity, may be admissible to prove identity. Tex. R. Evid. 404(b). An extraneous offense is

admissible to show identity only when identity is at issue in the case. See Lane v. State, 933 S.W.2d

504, 519 (Tex. Crim. App. 1996). The issue of identity is raised when the State’s only identifying

witness is impeached by cross-examination regarding a material detail of the witness’s identification.

See Sisqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). The offenses introduced must

be so similar to the charged offense as to mark the offenses as defendant’s handiwork, in order to

prove the defendant’s identity. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002).

In determining the similarity of the offenses for the purposes of establishing identity, we are to

consider the specific characteristics of the offense as well as the time interval between the extraneous

offense and the offense charged. Id.

               In this case, appellant’s counsel cross-examined five separate witnesses regarding

appellant’s appearance and whether he had been properly identified, repeatedly asking whether

witnesses had noticed appellant’s tattooed arms. This placed identity in issue. See Walker v. State,

588 S.W.2d 920, 922 (Tex. Crim. App. 1979) (issue of identity raised where defense counsel, after




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cross-examining identifying witness on presence of scars or tattoos on assailant, asked his client to

display said scars and tattoos to witness and jury). The extraneous offense was similar to the charged

offense. Both were robberies at gunpoint of females in the course of parking their sport utility

vehicles in isolated, rear-entry garages, both occurred within a confined geographic area, and both

occurred within the same week. These similarities are sufficient to establish that the extraneous

offense was appropriately admitted. See Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App.

1974) (extraneous offense sufficiently similar where both offenses were gunpoint robberies in which

defendant was aided by confederate, occurring within a three-day period). Appellant’s second point

of error is overruled.

                Finally, appellant contends that the probative value of the extraneous evidence was

substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403. To prevail on this issue,

appellant would have to show that the court’s admission of the extraneous offense testimony was

an abuse of discretion. Dubose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). It is not

enough for us to disagree with the trial court’s determination—to be reversed, the holding must be

outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh’g).

                In this case, because appellant’s identity was in issue, the testimony regarding the

extraneous offense was relevant. The testimony was offered to show identity only, and not character

conformity. The trial court made its ruling after a hearing outside the jury’s presence, according to

an understanding of rule of evidence 404(b) that we have already found to be correct. We cannot

say that the trial court abused its discretion in so ruling. Appellant’s third point of error is overruled.

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                                       CONCLUSION

              The trial court’s judgment is affirmed.




                                              Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 11, 2003

Do Not Publish




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