                                         NO. 12-17-00305-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

 CEDRIC STEWART,                                            §        APPEAL FROM THE 114TH
 APPELLANT

 V.                                                         §        JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                   §        SMITH COUNTY, TEXAS

                                         MEMORANDUM OPINION
         Cedric Stewart appeals from his conviction for burglary of a habitation. In two issues, he
challenges the trial court’s evidentiary rulings. We affirm.


                                                  BACKGROUND
         The State charged Appellant with burglary of a habitation, enhanced by a prior felony
conviction. Appellant pleaded “not guilty” and the matter proceeded to a jury trial.
         At trial, Mary Risinger testified that she was out of town on January 21, 2017 when she
received an alert from the alarm company that motion was detected inside her home at 1616
Magnolia.1 When she reviewed the surveillance footage from her home, she saw a man enter
through a window and subsequently exit through the window. She saw the man’s face and
identified Appellant as that man. She testified that Appellant mowed her lawn on occasion and
resided nearby. Risinger testified that Appellant did not have permission to be inside her home.
         Officer Kris Davis with the Tyler Police Department testified that he discovered footprints
on a chair and the floor inside Risinger’s home. He reviewed Risinger’s surveillance footage and
saw that the suspect wore blue gloves, a dark colored baseball cap and shirt, and blue jeans with a


         1
            Throughout the record, Magnolia is referred to as Street, Avenue, and Drive; thus, for consistency, we will
refer to the location as “Magnolia.”
dark belt. Detective Melinda Weaver with the Tyler Police Department testified that when she
first contacted Appellant, he wore a dark gray shirt, blue jeans, a brown belt, and black shoes.
Weaver, Davis, and Officer Collin Hale with the Tyler Police Department testified that Appellant’s
clothing was similar to that worn by the person on the surveillance footage.
        Additionally, while speaking with Appellant’s wife, Weaver noticed a box of blue gloves
on the living room floor. She then noticed a torn piece of glove on the tip of Appellant’s finger.
She asked Appellant why he needed gloves, to which Appellant responded that he did not need
gloves and did not have any gloves on. When Weaver pointed out the torn piece of glove,
Appellant ripped it off his finger and threw it to the ground.
        Weaver testified that officers left Appellant’s home, but returned approximately twenty-
five minutes later. This time, Appellant wore different clothing. Appellant’s wife retrieved
Appellant’s former clothing from the laundry room. Davis testified that officers obtained blue
jeans, blue gloves, a dark baseball cap and shirt, and a pair of shoes with prints very similar, if not
the same, to the prints found at the scene. Hale testified that Appellant initially denied leaving his
house at any point previously that day, but later indicated that he did leave his house. Appellant
admitted to Hale that he entered Risinger’s home to obtain food for himself and his wife, which
Hale testified constitutes burglary.
        The record also contains testimony regarding a January 1, 2017 burglary of Risinger’s
home. Risinger testified that someone entered her home through the window and stole some items,
including food. She testified that no one had permission to enter her home on that occasion and
that a handwritten note was left inside her home. Hale confirmed that someone entered Risinger’s
house through the window and stole food and other items. Officers also collected the handwritten
note. Detective David Cook with the Tyler Police Department testified that he compared the note
to handwritten court documents signed by Appellant and determined that Appellant drafted the
note.
        Additionally, the State presented evidence of a burglary on July 4, 2016, that occurred at
1716 Magnolia. Angela Rodriguez testified that she returned from out of town to discover that her
home was burglarized. The sliding glass door was open, drawers to her mother’s jewelry box and
dresser were opened, items were strewn across the room, and a digital camera was missing. She
discovered that a bedroom window was forced open and the lock broken.                   Cheryl Rock,




                                                  2
Rodriguez’s mother, testified that someone perused her jewelry and took a camera. She and
Rodriguez both testified that no one, including Appellant, had permission to enter the home.
       Officer Kevin Mobley with the Tyler Police Department confirmed that the burglar entered
Rodriguez’s home through a back window. Mobley collected fingerprints from the scene.
Investigator Donald Malmstrom with the Tyler Police Department testified that he compared
Appellant’s known prints to those obtained by Mobley, as well as prints provided by the national
database, and the prints all belonged to Appellant.
       At the conclusion of trial, the jury found Appellant “guilty” of burglary of a habitation and
sentenced him to seventy-five years in prison. This proceeding followed.


                                     STANDARD OF REVIEW
       We review a trial court’s evidentiary rulings for abuse of discretion. Oprean v. State, 201
S.W.3d 724, 726 (Tex. Crim. App. 2006). We must uphold the trial court’s ruling if it is reasonably
supported by the record and is correct under any theory of law applicable to the case. Willover v.
State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not reverse unless the trial court’s
ruling falls outside the “zone of reasonable disagreement.” Oprean, 201 S.W.3d at 726.
       Evidence is relevant when it has a tendency to make a fact more or less probable than it
would be without the evidence and that fact is of consequence in determining the action. TEX. R.
EVID. 401. Even relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403. A Rule 403 balancing
test considers (1) the inherent probative force of the evidence; (2) the proponent’s need for the
evidence; (3) any tendency of the evidence to suggest a decision on an improper basis, to confuse
or distract the jury from the main issues, or to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence; and (4) 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, 641–42 (Tex. Crim. App. 2006).
       The admission or exclusion of evidence does not result in reversible error unless it affects
substantial rights. See TEX. R. APP. P. 44.2(b). The erroneous admission of evidence does not
affect substantial rights if, after examining the record as a whole, the appellate court has fair
assurance that the error did not influence the jury, or had but slight effect. Motilla v. State, 78



                                                 3
S.W.3d 352, 355 (Tex. Crim. App. 2002). When making this determination, we “consider
everything in the record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, [and] the character of the alleged
error and how it might be considered in connection with other evidence in the case.” Id. We may
also consider the jury instructions, the State’s theory, any defensive theories, closing arguments,
voir dire if applicable, and whether the State emphasized the error. Id. at 355–56. Evidence of the
defendant’s guilt must also be considered when conducting a thorough harm analysis. Id. at 358.


                                   EXTRANEOUS BURGLARIES
       In issue one, Appellant maintains that the trial court abused its discretion by allowing
evidence of the January 1 and July 4 burglaries. According to Appellant, the only reason for this
evidence was to cause the jury to convict on improper character evidence and any probative value
of the evidence was outweighed by its prejudicial effect.
Applicable Law
       Generally, an extraneous offense is not admissible to prove a person’s character in order to
show that the person acted in accordance with that character. TEX. R. EVID. 404(b)(1). Such
evidence may be admissible for other purposes, including motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2). One
of the main rationales for admitting extraneous-offense evidence is to prove the offender’s identity.
Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008). The theory of relevancy is usually
that of modus operandi in which the pattern and characteristics of the charged crime and uncharged
misconduct are so distinctively similar that they constitute a “signature.” Id. “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.” Id. “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.” Id. If similarities are “generic,” i.e., typical
to this type of crime, they will not constitute a “signature” crime. Id. Sometimes the “signature”
is one unique characteristic, such as when three bank robberies are committed over a four-year
period in different cities in which the robber used an antique silver crossbow. Id. “This scenario
is so unusual that it is highly likely that each robbery was committed by the same person using the



                                                 4
same antique silver crossbow.” Id. This is known as the “‘mark of Zorro’ mode of proving
identity; it is a remarkably unusual fact, in which a single detail suffices to establish identity.” Id.
Analysis
       At a hearing outside the jury’s presence, the State argued that the January 1 burglary was
probative of Appellant’s (1) motive for entering the same home at a time when he knew Risinger
was not home, (2) intent to enter the home to take food, and (3) identity because of the handwritten
note left behind. The State argued that the July 4 burglary was admissible to show (1) motive, i.e.,
Appellant’s close proximity to Rodriguez’s home in Appellant’s neighborhood, entry into the
home through a rear window, and use of gloves on the January 21 burglary after leaving prints
behind on July 4, (2) intent, i.e., Appellant took items of value, and (3) identity, i.e., Appellant was
identified via fingerprints. The trial court determined that the evidence was admissible for
purposes of intent, identity, mode of commission, and proximity in time/place.
       The record demonstrates that identity was an issue at trial. See id. During opening
arguments, defense counsel argued that Appellant was in his home on January 21, heard the alarm
sounding at Risinger’s home, and was out on his front porch, along with other neighbors, because
of the alarm. He argued that officers could not testify to seeing Appellant commit the crime.
During cross-examination of Officer Davis, defense counsel elicited testimony that Appellant did
not commit the offense in Davis’s presence and that Davis could not identify Appellant facially
from the surveillance footage. Officer Hale also testified, on cross-examination, that Appellant
did not commit the offense in his presence. In closing, defense counsel argued that the surveillance
footage was insufficient to identify the burglar and that Appellant’s face could not be seen on the
footage.
       The record also demonstrates that the pattern and characteristics of the July 4, January 1,
and January 21 offenses are so distinctively similar that they constitute a “signature,” making the
uncharged offenses admissible to prove the identity of the offender with respect to the charged
offense. See id. All three burglaries occurred at homes in close proximity to Appellant’s home
when the homeowners were out of town, the burglar entered through a window on all three
occasions, the burglar took items on July 4 and January 1 but was apparently spooked by the alarm
on January 21, and Appellant left his fingerprints behind on July 4 and a note in his handwriting
on January 1. Accordingly, because identity was disputed at trial, the trial court could reasonably
conclude that the evidence was, at the very least, admissible and needed by the State for purposes



                                                   5
of identity. See Page v. State, 213 S.W.3d 332, 338 (Tex. Crim. App. 2006) (“the case law in this
jurisdiction does not require extraneous-offense evidence to be completely identical to the charged
offense to be admissible to prove identity;” similarities between charged offense and extraneous
offenses showed a “distinctive and idiosyncratic manner of committing criminal acts”); see also
Burton v. State, 230 S.W.3d 846, 850-851 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(similarities between the charged bank robbery and extraneous bank robberies, including lack of
onsite security, young age of robbed tellers, and robber wore hat and sunglasses and made robbery
demand initially with a note, were sufficient to show idiosyncratic or signature style of bank
robbery).
       Moreover, Rule 403 favors the admission of relevant evidence. Conner v. State, 67 S.W.3d
192, 202 (Tex. Crim. App. 2001). “Rule 403 requires exclusion of evidence only when there exists
a clear disparity between the degree of prejudice of the offered evidence and its probative value.”
Id. The “presumption is now that probativeness is the weightier consideration unless in the posture
of the particular case the trial court determines otherwise.” Montgomery v. State, 810 S.W.2d
372, 388 (Tex. Crim. App. 1990). In the present case, because the charged burglary and extraneous
burglaries were identical in several key respects, the extraneous offenses are highly probative on
the issue of identity. See Burton, 230 S.W.3d at 851. The evidence was not repetitive and its
presentation did not consume an inordinate amount of time. Additionally, the trial court included
a limiting instruction in the jury charge:


                During the trial, you may have heard evidence that the defendant may have committed
       wrongful acts not charged in the indictment. You are not to consider that evidence at all unless you
       find, beyond a reasonable doubt, that the defendant did, in fact, commit the wrongful act. Those of
       you who believe the defendant did the wrongful act may consider it.

               Even if you do find that the defendant committed a wrongful act, you may not consider this
       evidence to prove that the defendant is a bad person and for this reason was likely to commit the
       charged offense. To consider this evidence for this purpose would be improper.



The trial court’s instruction minimized any risk of the jury considering the extraneous burglaries
for an improper purpose. See id. Under the circumstances of this case, we perceive no clear
disparity between the degree of prejudice of the extraneous burglaries and their probative value.
       Even assuming that the trial court erroneously admitted the complained-of evidence and
that the evidence should have been excluded under Rule 403, the record does not demonstrate that



                                                        6
any such error affected Appellant’s substantial rights. The trial focused on the January 21 robbery
of Risinger’s home and evidence of the two prior burglaries constituted a small portion of the
evidence presented to the jury. During opening argument, the State informed the jury that it could
consider the two prior burglaries for the limited purposes of identity, intent, motive, and
opportunity. In closing, the State again argued that the jury could consider previous instances of
conduct to establish intent, identity, and motive, focusing its argument primarily on the prior
burglaries as evidence of identity.
       Most importantly, independent of evidence regarding the two prior burglaries, the jury
heard strong and clear evidence from which it could reasonably conclude that Appellant committed
the January 21 burglary. Risinger identified Appellant as the burglar, specifically testifying that
she saw a man enter her home through a window and saw Appellant’s face on the surveillance
footage. The jury heard evidence that (1) Appellant did not have permission to enter Risinger’s
home, (2) Appellant’s shoes resembled prints found in Risinger’s home, (3) when officers first
encountered Appellant, he wore clothing virtually identical to that worn by the man on the
surveillance footage, (4) when officers encountered Appellant a second, short time later, he had
changed his clothing, (5) Appellant gave officers conflicting statements regarding whether he left
home earlier on the day of the offense, (6) Weaver observed blue gloves on the floor of Appellant’s
home and a piece of glove on Appellant’s finger, and (7) Appellant told Hale that he entered
Risinger’s home to retrieve food. Thus, even absent the complained-of evidence, the record
contains conclusive evidence from which the jury could find Appellant guilty of the charged
offense. See Motilla, 78 S.W.3d at 358; see also Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim.
App. 2012) (sufficiency of evidence review includes consideration of events occurring before,
during and after the offense and the defendant’s actions which show an understanding and common
design to do the prohibited act); TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2) (West Supp. 2017)
(burglary of a habitation).
       We also note that, in addition to the limiting instruction discussed above, the trial court
including the following instructions:

                 The defendant is presumed innocent of the charge. All persons are presumed to be
       innocent, and no person may be convicted of an offense unless each element of the offense is proved
       beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce
       any evidence at all. Unless the jurors are satisfied beyond a reasonable doubt of the defendant’s
       guilt after careful and impartial consideration of all the evidence in the case, the presumption of
       innocence alone is sufficient to acquit the defendant.



                                                       7
                The burden of proof throughout the trial is always on the state. The defendant does not
       have the burden to prove anything. The state must prove every element of the offense beyond a
       reasonable doubt to establish guilt for the offense. If the state proves every element of the offense
       beyond a reasonable doubt, then you must find the defendant guilty. If the state does not prove
       every element of the offense beyond a reasonable doubt, then you must find the defendant not
       guilty….


The trial court also specifically advised that jury that “[s]tatements made by the lawyers are not
evidence.” We presume the jury followed the trial court’s instructions when determining whether
the State proved Appellant’s guilt beyond a reasonable doubt. See Resendiz v. State, 112 S.W.3d
541, 546 (Tex. Crim. App. 2003).
       Accordingly, based on our review of the record as a whole, even assuming the trial court
abused its discretion by admitting the extraneous offense evidence, we have fair assurance that any
error stemming from the admission into evidence of the two prior burglaries did not influence the
jury, or had but slight effect. See Motilla, 78 S.W.3d at 355; see also TEX. R. APP. P. 44.2(b). We
overrule issue one.
                                         HANDWRITING ANALYSIS
       In issue two, Appellant complains that Detective Cook was not qualified to offer an opinion
on handwriting comparison because he lacked the requisite education, training, and experience.
He further complains of the fact that Cook’s testimony addressed a note found at the scene of the
January 1 burglary instead of the January 21 burglary for which he was charged.
Applicable Law
       “A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue.” TEX. R. EVID. 702. Before admitting such testimony, the trial court must be
satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of his
knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an
appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist
the fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App.
2006). The first of these conditions is at issue in the present case.
       An appellate court may consider several criteria in assessing whether a trial court clearly
abused its discretion in ruling on an expert’s qualifications: (1) whether the field of expertise is
complex, (2) how conclusive is the expert’s opinion, and (3) how central the area of expertise is to


                                                        8
the resolution of the lawsuit. Id. at 528. “The degree of education, training, or experience that a
witness should have before he can qualify as an expert is directly related to the complexity of the
field about which he proposes to testify.” Id. “If the expert evidence is close to the jury’s common
understanding, the witness’s qualifications are less important than when the evidence is well
outside the jury’s own experience.” Id. For example, DNA profiling is scientifically complex,
while latent-print comparison (whether of fingerprints, tires, or shoes) is not. Id. Additionally, the
“more conclusive the expert’s opinion, the more important is his degree of expertise.” Id.
“Testimony that ‘a given profile occurred one time in 2.578 sextillion (2.578 followed by 21
zeroes), a number larger than the number of known stars in the universe (estimated at one
sextillion)’ requires a much higher degree of scientific expertise than testimony ‘that the
defendant’s tennis shoe could have made the bloody shoe print found on a piece of paper in the
victim’s apartment.’” Id. Finally, the more dispositive an expert’s testimony is of the disputed
issues, the more important his qualifications are. Id. For instance, if “DNA is the only thing tying
the defendant to the crime, the reliability of the expertise and the witness’s qualifications to give
his opinion are more crucial than if eyewitnesses and a confession also connect the defendant to
the crime.” Id. “Because the possible spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses sufficient qualifications to
assist the jury as an expert on a specific topic in a particular case.” Id. at 527-28.
Analysis
       In this case, Detective Cook testified that he has been a peace officer for over twenty-eight
years, a fraud and forgery investigator for over seventeen years, and attended specialized schools
for handwriting comparison and analysis:


       The training that I received for that is a specialized course that’s -- each session is about a week
       long, and it breaks down the mechanics of writing and allows you to see not just individual pages
       and sentences and words, but to -- to look specifically within just the components of the writing
       itself: The mechanics of it, the individual strokes, and to --

       Much like fingerprints, you would look for individual character -- characteristics within that same -
       - that we do with the handwriting is to find those individual strokes and characters and compare
       them from one set of samples to another.


Cook stated that he attended two forty-four hour courses for handwriting examination. He
explained that he looks for certain “gross characteristics,” including slant, writing size, how hard




                                                        9
the writing is, and the writer’s baseline. He also looks at “finer qualities,” such as individual
strokes and graphings. Cook testified that:


        You look for the ligatures, or the connections between the characters. You would look for diacritical
        marks, which is the way they cross their Ts and dot their Is; whether they do or not; how high it is,
        how low it is, whether or not they loop their lower-zone characters: The Ys, the Js, anything that
        comes below the baseline.

        All of those things compile a picture together, and they -- they -- that’s scattered throughout the
        handwriting samples. And you look for the totality of those characteristics.



According to Cook, “It’s a matter of applying the training and using that experience, just as you
would in any other aspect of law enforcement or investigative skills.” He testified to applying the
lessons he learned to many fraud cases, with successful results, and that his handwriting
examinations were used in court proceedings on numerous occasions.
        Defense counsel objected to Cook’s qualifications to offer an expert opinion on
handwriting comparison and, on voir dire, Cook admitted not having taught any handwriting
courses, written articles on the topic, or been published on the topic. Nor does he belong to any
professional associations in the area of handwriting comparison. He also could not say whether
the place where examinations were conducted was accredited by the Texas Forensic Science
Commission. The trial court overruled defense counsel’s objections to Cook’s testimony and Cook
proceeded to testify regarding his analysis of the handwritten note left in Risinger’s home on
January 1. This included testimony that the handwriting on the note belonged to Appellant.
        The Texas Court of Criminal Appeals has explained that the “opinions of lay witnesses,
when competent, are admissible concerning sanity, insanity, value, handwriting, intoxication,
physical condition health and disease, estimates of age, size, weight, quantity, time, distance,
speed, identity of persons and things.” Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App.
1978). Additionally, the code of criminal procedure states, “It is competent to give evidence of
handwriting by comparison, made by experts or by the jury.” TEX. CODE CRIM. PROC. ANN. art.
38.27 (West 2018).2 In light of these authorities, we conclude that, like the latent-print comparison
referenced in Rodgers, handwriting comparison is not scientifically complex and does not require


        2
           “Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his
signature under oath.” TEX. CODE CRIM. PROC. ANN. art. 38.27 (West 2018). In the present case, Appellant did not
deny his signature under oath.


                                                         10
a heightened degree of scientific expertise. See Rodgers, 205 S.W.3d at 528. Rather, handwriting
comparison is an issue close to the jury’s common understanding, thereby making Cook’s
qualifications less important. See id.
         Additionally, Cook’s testimony was conclusive only with respect to whether Appellant
wrote the January 1 note. The central, disputed issue at trial was whether Appellant committed
the January 21 burglary; and, whether Appellant penned the January 1 note was certainly not
dispositive of that disputed issue. Rather, as discussed above, the record contains sufficient
evidence to support Appellant’s conviction even absent evidence of the extraneous burglaries. See
id. at 533 (in holding trial court did not abuse its discretion by finding witness sufficiently qualified
to testify as an expert on shoe and tire print comparisons, court of criminal appeals noted the
“abundance of other evidence pointing to appellant as the person who murdered his wife”).
         Accordingly, under these circumstances, the trial court could reasonably conclude that
Cook was sufficiently qualified to testify as an expert on handwriting comparison and did not
abuse its discretion by so concluding. See id at 527-28; see also Oprean, 201 S.W.3d at 726;
Willover, 70 S.W.3d at 845. We overrule issue two.


                                                  DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.


                                                                BRIAN HOYLE
                                                                  Justice


Opinion delivered October 10, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                         11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 10, 2018


                                         NO. 12-17-00305-CR


                                       CEDRIC STEWART,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0403-17)

                    THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below for
observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
