                                 NO. 07-06-0407-CR
                                 NO. 07-06-0408-CR
                                 NO. 07-06-0409-CR
                                 NO. 07-06-0410-CR
                                 NO. 07-06-0411-CR
                                 NO. 07-06-0412-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  JUNE 21, 2007
                         ______________________________

                                   ELI EDWARDS,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                     NOS: 4294, 4295, 4296, 4297, 4298 & 4299;

                     HON. STEVEN RAY EMMERT, PRESIDING
                       _______________________________

                                     Opinion
                          ____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Eli Edwards (appellant) appeals his convictions for aggravated robbery and

aggravated kidnaping. Via three issues, he contends that the trial court erred by 1)

admitting evidence of an extraneous offense, 2) improperly defining the term “abduct” in
the jury charge and 3) entering an order requiring him to serve his six sentences

consecutively. We affirm the judgments as reformed.

                                       Background

      Jimmy Maddox (Maddox) was at home with his wife and daughter when two masked

men broke through the front door. The men were armed with shotguns and told the group

to lay on the floor. Thereafter, they were threatened with death, moved to a cellar, and

bound with cords. So too was Maddox asked for money, and he disclosed to his assailants

where it could be found. Eventually, Maddox freed himself and the others in his family.

He then noticed his Buick had been taken and called 911.

      Eventually, law enforcement officials encountered two individuals driving the Buick

and a chase ensued which resulted in the vehicle being abandoned. A search of the car

revealed items taken from the Maddox household plus various weapons. The next day

appellant was captured and arrested for the robbery.

               Issue One - Extraneous Offense Used to Show Identity

      In his first issue, appellant posits that the trial court erred in admitting evidence of

an extraneous offense. The evidence involved testimony about appellant having taken

weapons (shotguns) during a burglary in Oklahoma. Moreover, appellant was identified

as one of the burglars who took the shotguns. One or more of those very weapons were

later found in the Maddox Buick after the robbery and chase. This was of import to the

State because it helped identify appellant as one of the Maddox robbers; again, the

robbers wore masks and could not be identified through facial features. So, in the State’s

view, evidence about the Oklahoma burglary and who was involved in it helped tie



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appellant to the later robbery in Texas. Thus, the evidence allegedly was both relevant and

admissible under Texas Rule of Evidence 404(b). We agree and overrule the point.

       Finding in the Buick a shotgun appellant stole in Oklahoma has the propensity of

linking appellant to the Maddox robbery, given that a shotgun was used in the robbery.

More importantly, it cannot be legitimately denied that the identity of the robbers was in

issue. Indeed, appellant, through his legal counsel, argued to the trial court that the

evidence of identity was very weak. So, the extraneous burglary, in general, and the

property taken during it, in particular, was relevant to an element in dispute. And, that the

Oklahoma offense may not have involved an act either identical or similar to the Texas

crime matters not for the identity between the criminal acts occurring in Oklahoma and

Texas were not important. Of import was the identity between the weapons taken in

Oklahoma, the ones used to rob the Maddox family and the ones later found in the car for

the weapons and appellant’s tie to them is what identifies him as a robber. Thus, Page v.

State, 213 S.W.3d 332 (Tex. Crim. App. 2006), a case upon which appellant relies heavily

in attempting to show error, is inapposite.

       Page dealt with an attempt to prove identity through comparing a series of acts. In

that situation, one cannot dispute that the acts have to be sufficiently similar to warrant an

inference that the person who committed some committed all. Here, however, the acts

undertaken during both offenses matter not for the focus lies on the identity between the

weapons taken by appellant during one offense and later used at another. So, because

evidence of extraneous offenses are admissible to prove identity, TEX . R. EVID . 404(b);

Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004), and evidence of the



                                              3
Oklahoma burglary furthered that purpose at bar, we cannot say that the trial court abused

its discretion in permitting several witnesses to disclose it at trial.1 See Montgomery v.

State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (stating that a trial court errs viz its

decisions to admit evidence when it abuses its discretion and the decision falls outside the

zone of reasonable disagreement).

                                        Issue Two - Jury Charge

        In his second issue, appellant contends that the trial court’s failure to properly define

“abduct” in its jury charge caused him egregious harm. That is, the abstract definition of

“abduct” included in the charge differed from the manner in which the term was used in the

indictment. However, its description in the application paragraph of the charge was

identical to that in the indictment.2 So, while the definition did not track the indictment, the

application paragraph did, and appellant did not object to the circumstance. We overrule

the issue.

        The record evidence supported appellant’s conviction of the offense as described

in the indictment. Furthermore, the application paragraph tracked the indictment, and the

words in the application paragraph were plain and easily understood. Medina v. State, 7


        1
            Appellant does not raise Texas Rule of Evidence 403.

        2
           The trial court charged the jury as follows: “‘abduct’ m eans to restrain a person with intent to prevent
his/her liberation by using or threatening to use deadly force.” So too did it state that “‘restrain’ m eans to
restrict a person’s m ovem ents without consent, so as to interfere substantially with the person’s liberty, by
m oving the person from one place to another or by confining the person.” Through the application paragraph,
it then inform ed the jury of the following:

        . . . if you find from the evidence beyond a reasonable doubt that on or about the 12 th day of
        March, 2006 in W heeler County, T exas, [appellant], did then and there, intentionally or
        knowingly abduct []Maddox, by restricting the m ovem ents. . . by confining him , with the intent
        to prevent [] liberation, secreting or holding [] in a place where [] was not likely to be found,
        and [appellant] did then and there use or exhibit a deadly weapon, to wit: a gun, during the
        com m ission of said offense, . . . .

                                                         4
S.W.2d 633, 640 (Tex. Crim. App. 1999) (holding that where the application paragraph

correctly instructs the jury, an error in the abstract instruction is not egregious); Plata v.

State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds, Malik v.

State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (holding that reversal is required when

an accurate definition in the abstract definition is necessary to implement the application

paragraph); Williams v. State, No. 01-06-00037-CR, 2007 Tex. App. LEXIS 1158 (Tex. App.

–Houston [1st Dist.] February 15, 2007, no pet. h.) (holding that when the application

paragraph correctly instructs the jury, a superfluous abstract definition is not egregious).

Thus, despite the definition, the jury nevertheless was told in unambiguous language that

it could not convict unless it found appellant guilty as charged in the indictment. Given

these circumstances, we do not find that appellant was egregiously harmed by the

purported error.

           Issue Three - Order Requiring Sentences to Run Consecutively

       Appellant contends that the trial court erred in entering an order wherein it “stacked”

appellant’s sentences. In other words, appellant would be required to serve the six

sentences consecutively as opposed to concurrently. The State concedes this point and

asks us to reform the six judgments. We agree and sustain the issue.

       Accordingly, the judgments of the trial court are reformed to delete the accumulation

orders. Robbins v. State, 914 S. W.2d 582, 584 (Tex. Crim. App. 1996). As reformed, the

judgments of the trial court are in all other respects affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Publish.

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