                                      NO. 07-10-00502-CR

                                  IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                            PANEL B

                                       OCTOBER 22, 2012


                                  ADRIAN BIERA, APPELLANT

                                                v.

                               THE STATE OF TEXAS, APPELLEE


                 FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2005-410,709; HONORABLE JIM BOB DARNELL, JUDGE


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


                                            OPINION

          Appellant Adrian Biera was found guilty by a jury in 2006 of the 2005 aggravated

robbery 1 of a Lubbock Whataburger restaurant.           He was sentenced to sixty years’

incarceration. We reversed the judgment and remanded the case for a new trial. 2 On

retrial the jury again found appellant guilty of aggravated robbery, and assessed his

punishment at fifty-five years in prison. He again appeals, raising seven issues. We will

affirm.


          1
              See Tex. Penal Code Ann. § 29.03 (West 2011).
          2
              Biera v. State, 280 S.W.3d 388 (Tex.App.--Amarillo 2008, pet. refused).
                                       Background


         Because appellant does not challenge the sufficiency of the evidence to support

his conviction, and because our previous opinion discusses much of the evidence also

presented on retrial, we mention only those facts necessary to the disposition of

appellant’s issues on appeal.


         The Whataburger was robbed around six a.m. on September 7, 2005, by two

perpetrators armed with handguns. They wore masks, gloves and camouflage clothing.

The restaurant manager and employee were held at gunpoint while the robbers took

money from cash drawers. The robbers fled the scene and police were immediately

summoned. The officer responding to the call noted loose change on the restaurant

floor.


         At that time, appellant rented and occupied a four-bedroom apartment in a

Lubbock complex. The apartment also was occupied by appellant’s two minor children,

Maria Vargas, Vargas’s cousin Stephanie Yzaguirre, Yzaguirre’s ten-year-old daughter,

and Yzaguirre’s common-law husband, Miguel Morado. All the adults used illegal drugs

including methamphetamine and crack cocaine.


         Testimony showed that only Vargas was employed. She worked at a Lubbock

motel. Although appellant and Morado also owned vehicles, Vargas testified that her

car was the only vehicle with a current registration.


         Sometimes at night appellant and Morado dressed in dark clothing and left in

Vargas’s car. These outings often lasted until the morning hours. At times, the two

                                             2
armed themselves with handguns. On the occasions that appellant and Morado used

Vargas’s car, she later found her interior car decorations stowed in the glove

compartment or on the seat. In exchange for use of her vehicle, appellant provided

Vargas with methamphetamine.


      At her work, Vargas began stealing credit cards from motel guests. She gave

them to Morado and Yzaguirre, who used them to buy gasoline and retail items.


      Four days before the robbery, appellant asked Yzaguirre to purchase two ski

masks for him. He specified masks that covered the face and were not brightly colored.

She bought the masks at a Wal-Mart store.


      After the robbery, Lubbock police contacted Vargas in their investigation of the

stolen credit cards. Vargas gave a detective information about her involvement with the

credit cards, and information which led police to identify appellant and Morado as

suspects in the Whataburger robbery.


      Based on information from Vargas, police obtained a warrant for Morado’s arrest

on a forgery charge. On September 29, 2005, the detective went to the apartment to

serve the warrant but was told by the complex manager that appellant’s apartment was

vacant.   When the detective found appellant and others still in the apartment, she

arrested them on a charge of criminal trespass. In conjunction with the arrest, the

detective entered the apartment and saw drug paraphernalia and weapons.


      About a week later the detective returned to appellant’s apartment while a writ of

possession was being executed. Apartment employees were emptying the apartment,

                                            3
placing its contents on the lawn.      Among the items were two masks, which were

identified at trial as consistent with the masks used in the robbery.


       After appellant and Morado were indicted for the Whataburger robbery, Morado

plead guilty and was sentenced to twenty years’ imprisonment. Like at appellant’s

original trial, on the retrial Morado testified that he drove Vargas’s car to the

Whataburger and appellant and an unidentified male went inside. Testimony showed

the robbers took $224.04; Morado testified his share was “about $40.”


       In the jury charge on retrial, the trial court instructed the jury on the law of

accomplice witness testimony. Morado was submitted as an accomplice as a matter of

law and Yzaguirre as an accomplice as a matter of fact.


                                         Analysis


       Of the seven issues appellant presents, issues one through five complain of the

trial court’s ruling on his motion to suppress evidence seized from his apartment and a

vehicle.    His sixth and seventh issues challenge the admission of evidence of

extraneous offenses.


Suppression Issues


       In reviewing a trial court’s ruling on a motion to suppress, we apply a familiar

standard.


       The trial court’s ruling on a motion to suppress is reviewed for abuse of
       discretion. The trial court is given almost complete deference in its
       determination of historical facts, especially when based on an assessment
       of credibility and demeanor. The same deference is given to the trial court
                                             4
       with respect to its rulings on the application of the law to questions of fact
       if resolution of those questions depends on an evaluation of credibility and
       demeanor. Mixed questions of law and fact that do not turn on credibility
       and demeanor are reviewed de novo. When the trial court does not make
       express findings of fact, the reviewing court must view the evidence in the
       light most favorable to the trial court’s ruling and should assume the trial
       court made implicit findings of fact that support its ruling as long as those
       findings are supported by the record.

Lujan v. State, 331 S.W.3d 768, 771 (Tex.Crim.App. 2011) (citations omitted).


       Evidence seized in the apartment


       Through his first three issues, appellant asserts the trial court erred in denying

his motion to suppress items of personal property police seized in his apartment on

September 29, 2005. He argues the seizure violated the Fourth Amendment to the

United States Constitution, and Article I, Section 9 of the Texas Constitution, and

admission of the items was contrary to article 38.23 of the Texas Code of Criminal

Procedure. The essence of appellant’s argument is that at the time of the search and

seizure he maintained lawful possession of the apartment and the warrantless entry of

police violated the constitutional standards. We will discuss these three issues jointly. 3




       3
         Appellant points out that under Article I, Section 9 the State must prove
voluntariness of consent to search by clear and convincing evidence while under federal
law the burden of proof for establishing voluntariness of consent is by a preponderance.
See Meekins v. State, 340 S.W.3d 454, 459-60 (Tex.Crim.App. 2011) (stating
proposition). While this is a correct statement of law, we find it lacks application here.
An issue of voluntariness has not been raised. Because appellant does not otherwise
argue Article I, Section 9 offers broader protections than the Fourth Amendment, we
analyze this case under the federal standard. Limon v. State, 340 S.W.3d 753, 757
n.15 (Tex.Crim.App. 2011); Narvaiz v. State, 840 S.W.2d 415, 432 (Tex.Crim.App.
1992).
                                             5
      The Lubbock police detective was the only witness at the motion to suppress

hearing.   She told the court she came to appellant’s apartment complex to serve

Morado with an arrest warrant.    She also was interested in speaking with appellant.

The manager of the apartment complex told the detective appellant’s apartment was

vacant. The manager also said that a “walk-through” inspection had been performed

and the door locks changed. She showed the detective a judgment from justice court

and said the occupants “were supposed to be out.”          The detective believed the

judgment was sufficient to “get the [occupants] to leave.” The detective agreed that the

manager was “very strong and assertive” in expressing a belief that the apartment was

vacant.


      The detective and manager walked to the apartment and heard loud music

coming from within.    They returned to the office so the manager could check the

records. She reiterated to the detective that the apartment was supposed to be empty.

She gave the detective permission to “go through” the apartment and added if anyone

was in the apartment she wanted them removed. She also gave the detective keys to

the apartment.


      The detective called for backup, and returned to the apartment. Approaching the

door, she saw several people leaving, including Morado and appellant.            These

individuals were handcuffed and charged with criminal trespass. One of the group

asked appellant why he was being arrested and appellant replied, “I’m not supposed to

be here. I’m supposed to be gone out of here.” Police later seized a number of items of

personal property located in the apartment.

                                              6
       The reasonableness of a search is a question of law we review de novo. Kothe

v. State, 152 S.W.3d 54, 62 (Tex.Crim.App. 2004). We measure reasonableness by

examining the totality of the circumstances, balancing the public interest and the

individual’s right to be free from arbitrary detentions and intrusions. Id. at 63.


       The warrantless entry of police into a residence is presumed unreasonable

unless the entry is within a well-defined group of exceptions. See Limon, 340 S.W.3d at

756 (citing Valtierra v. State, 310 S.W.3d 442, 448 (Tex.Crim.App. 2010)). One such

exception is the voluntary consent of the individual whose property is searched or of a

third-party possessing common authority over the premises searched.                  Illinois v.

Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Limon, 340

S.W.3d at 756.      While a landlord generally may not consent to search a leased

residence, Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d

828 (1961), a valid consensual search does not necessarily depend on actual authority

because even if the consenting party does not actually possess the requisite

relationship to the premises, the Fourth Amendment is not violated if an officer has an

objectively reasonable, even if mistaken, good-faith belief that she obtained valid

consent to search the area. Rodriguez, 497 U.S. at 186; see Hubert v. State, 312

S.W.3d 554, 561 (Tex.Crim.App. 2010) (noting the Supreme Court has explained under

such circumstances apparent authority exists and the purported consent from the third

party can make the search reasonable); United States v. Brazel, 102 F.3d 1120, 1148

(11th Cir. 1997) (similar analysis).




                                              7
       Thus, officers may rely on the landlord’s representation that she possesses

authority to authorize a search, provided objective circumstances make reliance

reasonable. Rodriguez, 497 U.S. 177. We determine whether the landlord possessed

apparent authority using an objective standard and ask “would the facts available to the

officer at the moment warrant a man of reasonable caution in the belief that the

consenting party had authority over the premises?” Limon, 340 S.W.3d at 756 (quoting

Rodriguez, 497 U.S. at 188 (internal citations omitted)). The question “is whether the

officer’s belief in an individual’s authority is reasonable under the facts known to the

officer.” Limon, 340 S.W.3d at 758 (citing Rodriguez, 497 U.S. at 188). It is the burden

of the State to prove actual or apparent authority by a preponderance of the evidence.

Limon, 340 S.W.3d at 757. “[W]hether a third party had actual authority to consent to a

search of another’s property and whether an officer was reasonable in finding that a

third party had apparent authority to consent are mixed questions of law and fact which

reviewing courts should examine de novo.” Hubert, 312 S.W.3d at 559-560. “If, as in

this case, a trial court does not enter findings of fact, a reviewing court must view the

evidence in a light most favorable to the trial court’s rulings and assume that the trial

court resolved any issues of historical fact or credibility consistently with its ultimate

ruling.” Id. at 560.


       We conclude the detective’s testimony gave the trial court reasonable basis to

conclude she had an objectively reasonable, even if mistaken, good-faith belief that she

had valid consent from the apartment manager to enter and search appellant’s

apartment. See Brazel, 102 F.3d at 1148-49 (finding similar objectively reasonable

belief on similar facts).
                                            8
      Relying on the fact the Lubbock County justice court judgment was a money

judgment for delinquent rent, not one authorizing eviction, appellant asserts the

apartment manager had no legal right of access to the apartment.          A copy of the

judgment the manager showed the detective was admitted at the suppression hearing.

It was signed September 1, 2005 in a case styled Mission Square v. Adrian Biera, and

ordered appellant to pay $604 plus court costs. 4      At the suppression hearing, the

detective agreed that “a few days later” she learned not every legal step had been taken

by September 29 for management to evict appellant from the apartment. A writ of

possession was executed on October 7. In response to appellant’s assertion, we first

note that reasonableness is not assessed through the lens of hindsight. Rodriguez, 497

U.S. at 188 (“As with other factual determinations bearing upon search and seizure,

determination of consent to enter must be judged against an objective standard: would

the facts available to the officer at the moment . . . warrant a man of reasonable caution

in the belief that the consenting party had authority over the premises?” (internal

quotation marks omitted)). Second, we point out concepts of state property law do not

control Fourth Amendment analysis. See Mugweni v. United States, Nos. 3:09-CV-

2245-K, 3:07-CR-0159-K, 2011 U.S. Dist. Lexis 13671, at *9-10 (N.D. Tex. Feb. 10,

2011) (stating for Fourth Amendment purposes whether landlord had attempted eviction

under Texas property law was immaterial; rather, determinative factor was whether

defendant relinquished reasonable expectation of privacy in property so that search and

seizure was valid); United States v. Opeoluwa Adigun, No. 1:10-CR-00202-RWS-RGV,

2011 U.S. Dist. Lexis 60310, at *82-92 (N.D. Ga. May 4, 2011) (magistrate judge’s

      4
          Mission Square was the name of the apartment complex.
                                            9
report and recommendation), approved and adopted, 2011 U.S. Dist. Lexis 60303 (N.D.

Ga. June 3, 2011) (noting inapplicability of private property law to Fourth Amendment

analysis and finding officers had reasonable, good faith basis for believing owner had

regained possession of property and could consent to its search when evidence

included representations of owner that tenants were evicted and he was preparing to

“clean the building out,” and he unlocked the front door with his key). See generally

Chapman v. United States, 365 U.S. at 617.


       The terms of the September 1 judgment did not preclude the trial court from

finding the detective had a reasonable belief the manager was authorized to give her

valid consent to enter appellant’s apartment.


       With regard to the application of article 38.23, “[t]he exclusionary language of

article 38.23 applies only if an officer or other person obtains evidence in violation of

either the constitutions or the laws of the United States or the State of Texas.

Therefore, for an accused to obtain the protection of article 38.23, the police must have

violated either the constitutions or laws of the United States or the State of Texas.”

Owens v. State, 861 S.W.2d 419, 421 (Tex.App.--Dallas 1993, no pet.). Because the

present record does not demonstrate police misconduct in connection with the search of

appellant’s apartment and the seizure of personal property found therein, the

exclusionary effect of article 38.23 has no application.


       We conclude the trial court did not abuse its discretion in denying appellant’s

motion to suppress personal property seized by police from the apartment. Appellant’s

issues one through three are overruled.

                                            10
           Evidence seized in appellant’s vehicle


           Appellant also sought to suppress a handgun seized by the detective on October

7, 2005, but the trial court denied his motion.      Through his fourth and fifth issues,

appellant asserts the trial court erred by doing so. He argues the seizure violated his

rights under the Fourth Amendment and Article I, Section 9. We will discuss the issues

jointly.


           As noted, the detective returned to the apartment complex on October 7, while a

writ of possession obtained by the apartment complex was being executed.              The

detective saw appellant and Christina Ortiz placing items from the apartment into a

plastic bag. As appellant walked from the apartment the detective arrested him on a

misdemeanor warrant and placed him in handcuffs. Ortiz was not arrested nor was she

patted-down for weapons. She “was allowed to leave,” walked to appellant’s car in the

parking lot and seated herself in the car, leaving the door open. The plastic bag sat on

the car’s floorboard, within reach of Ortiz. The detective could not recall if by that time

appellant had been transported from the scene but she agreed he was handcuffed and

not near the car. The detective walked toward appellant’s car intending to make certain

“no guns were accessible to [Ortiz].” The detective did not remember whether she said

anything to Ortiz as she approached the vehicle, but when the detective reached the

vehicle Ortiz voluntarily arose and walked away, leaving the bag inside the vehicle.

Because the detective believed appellant kept a gun in proximity, and because on

September 25 she had found Ortiz in appellant’s apartment with a gun, she proceeded

with a search of appellant’s car and the bag. She found a handgun in the bag.

                                               11
      During the detective’s testimony the search sometimes was referred to as a

search of the vehicle but the detective also referred to it as a search of Ortiz. It seems

clear that Ortiz carried the bag from the apartment after she “was allowed to leave.”

The proximity of appellant’s vehicle to the detective’s location after she handcuffed

appellant is not clear from the record, nor is the amount of time that elapsed between

the detective’s arrest of appellant and her approach of Ortiz sitting in the vehicle. The

detective was the only Lubbock police officer present when she arrested appellant, but

a constable was present, presumably in connection with the execution of the writ of

possession.


      Citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009),

appellant’s primary contention on appeal is that the search cannot be justified as a

search incident to arrest because appellant was handcuffed and was not near the

vehicle. The State argues on appeal that the detective’s search was permissible to

protect herself from possible danger from Ortiz, under the rationale of Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). We find we need not resolve

these contentions because the admission of the handgun the detective found in the

plastic bag, if erroneous, was harmless.


      If the handgun was located through violation of the Fourth Amendment and

should have been excluded from evidence through appellant’s motion to suppress, we

must reverse the conviction unless we determine beyond a reasonable doubt the

admission of the handgun did not contribute to appellant's conviction. Tex. R. App. P.

44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App. 2010); Davis v. State,

                                           12
203 S.W.3d 845, 849-53 (Tex.Crim.App. 2006).           To make that determination, we

consider the importance of the evidence to the State’s case, whether the erroneously

admitted evidence was cumulative of other evidence, the presence or absence of

evidence corroborating or contradicting the erroneously admitted evidence on material

points, and the overall strength of the State’s case. Delaware v. Van Arsdall, 475 U.S.

673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Langham, 305 S.W.3d at 582.


       The handgun found in the plastic bag in the vehicle was cumulative of other

evidence of similar effect. Vargas testified that she recalled seeing appellant with a

handgun in the waistband of his pants. The evidence also included another pistol and

various items of ammunition. It was never argued the handgun found in the bag was

used in the Whataburger robbery and its caliber did not match a cartridge found by

police in the restaurant. The gun was not analyzed for fingerprints. Other testimony

that appellant owned and carried firearms was admitted and it was never asserted that

appellant’s possession of the handgun was somehow illegal. As noted, Morado plead

guilty to committing the robbery and testified against appellant.


       We conclude beyond a reasonable doubt that the admission of the handgun

found in the bag did not contribute to appellant's conviction. Appellant’s issues four and

five are overruled.


Admissibility of Evidence of Other Crimes, Wrongs or Acts: Rules 404(b) and 403


       Through his sixth and seventh issues appellant asserts the trial court abused its

discretion by admitting evidence that appellant “and those associated with him, used

illegal drugs, burglarized vehicles, committed other property crimes including forgery
                                            13
and credit card abuse and may have had contraband (rolls of change) related to” the

Whataburger robbery. Appellant adds that even if such evidence of extraneous crimes

and acts was relevant its probative value was substantially outweighed by the danger of

unfair prejudice.


       We begin by noting the record of the guilt-innocence phase of trial does not

contain evidence that appellant burglarized vehicles. We note also that appellant later

in his argument acknowledges that evidence of the presence in the apartment of money

in change, purportedly proceeds from the robbery, was properly admitted. We will not

further discuss those two categories of evidence.


       Through the testimony of Vargas, Yzaguirre and Morado, and that of the

detective, the State presented evidence that appellant and other occupants of the

apartment used illegal drugs, including crack cocaine and methamphetamine, and

profited from the use of the credit cards stolen by Vargas. 5


       Rule of Evidence 404(b) provides that evidence of other crimes, wrongs or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith, but may be admissible for other purposes, such as to prove “motive,

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

       5
         Appellant’s brief does not contain record references to the testimony he asserts
was admitted in violation of Rule 404(b). See Tex. R. App. P. 38.1(g), (i) (requiring
record references). The State’s brief fills the void, listing record references for the
testimony of drug use and possession by appellant and other occupants of the
apartment and for testimony of their use of stolen credit cards to buy gasoline and other
items. The State includes record references also for testimony referring to appellant’s
practice of leaving the apartment late at night wearing dark clothing and testimony of his
possession of firearms and ammunition. That additional testimony is not included within
appellant’s Rule 404(b) complaint, and we will not further consider it here.
                                            14
accident.”   Tex. R. Evid. 404(b).    Whether objected-to evidence of “other crimes,

wrongs, or acts” has relevance apart from character conformity, as required by Rule

404(b), is a question for the trial court. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990) (op. on reh’g). An appellate court owes no less deference to the

trial judge in making this judgment than it affords him in making any other relevancy call;

that is, such a decision is reviewed for abuse of discretion. Id. Therefore, as long as

the trial court's ruling was within the zone of reasonable disagreement, we will not

intercede. Id.


      While the defendant’s motive is not a required element in a criminal prosecution,

“evidence of motive is one kind of evidence aiding in the establishing proof of an alleged

offense.”    Crane v. State, 786 S.W.2d 338, 349-50 (Tex.Crim.App. 1990).           To be

admissible, evidence of motive must tend to raise an inference that the accused had a

motive to commit the offense for which he is on trial. Bush v. State, 628 S.W.2d 441,

444 (Tex.Crim.App. 1982); Rodriguez v. State, 486 S.W.2d 355, 358 (Tex.Crim.App.

1972); see Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999) (evidence of

defendant’s use of cocaine on night of murder was admissible to show defendant was

motivated to kill in order to obtain money for cocaine); Maranda v. State, 253 S.W.3d

762, 767 (Tex.App.--Amarillo 2007, pet. dismissed) (evidence of defendant’s use of

intoxicant taken in robbery was relevant to show defendant’s motivation to commit

robbery for the sake of becoming intoxicated); Massey v. State, 826 S.W.2d 655, 657-

58 (Tex.App.--Waco 1992, no pet.) (evidence of defendant’s use of crack cocaine prior

to committing robbery was admissible to demonstrate motive for robbery).


                                            15
       The State argues evidence of drug use by appellant and other occupants of the

apartment was relevant to show a motive for the robbery. We agree. Vargas and

Morado testified none of the apartment occupants was employed but Vargas. Yet drug

use was common. Morado testified he and appellant used methamphetamine together

before the robbery.    The trial court reasonably could have found their drug habits

provided a motive for robbery for individuals with no employment income.


       With regard to the evidence of “credit card abuse,” Vargas testified that while she

was staying at appellant’s apartment, and on more than five occasions but fewer than

ten, she stole credit cards from customers at the motel where she was employed. She

testified she gave those cards to Morado and Yzaguirre, who used them to put gas in

Vargas’s car and to make other purchases. She testified appellant also used her car on

occasion, but she never gave him one of the stolen cards.


       Yzaguirre’s testimony concerning the credit card use was slightly broader than

Vargas’s. Yzaguirre said that Vargas was “spending” the stolen cards. Asked if Vargas

was giving the cards to “somebody else,” Yzaguirre responded, “Well, everybody went.”

She also agreed, “they were filling up cars.” Morado also testified Vargas gave him

credit cards, and he “would go to Wal-Mart and use them.”            He also agreed he

“[s]ometimes would . . . put gas in cars as well.”


       Morado testified it was Vargas’s car he and appellant drove to commit the

robbery.   Because of that testimony, Vargas’s car has a direct connection with the

robbery. Vargas’s testimony to appellant and Morado’s practice of using her car for

their late-night forays served to corroborate Morado’s accomplice-witness testimony.

                                             16
The testimony to Morado’s use of the credit cards Vargas gave him to keep gas in her

car also was relevant to show the men’s use of Vargas’s car, on the other occasions

and on the occasion of the robbery. The trial court thus reasonably could have seen the

evidence of Morado’s use of the credit cards as having relevance to show the identity of

Morado and appellant as the robbers. Appellant forcefully challenged the evidence

tending to establish his identity as one of the robbers. We conclude the trial court’s

ruling that evidence regarding the stolen credit cards had relevance beyond showing

character conformity was within the zone of reasonable disagreement and thus was not

an abuse of discretion. Montgomery, 810 S.W.2d at 391; see Charlie Melvin Page v.

State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004) (if issue of identity is raised, Rule

404(b) permits introduction of extraneous offense evidence relevant to identity issue);

Darnell Alonzo Page v. State, 125 S.W.3d 640, 649 (Tex.App.--Houston [1st Dist.] 2003,

pet. refused) (extraneous act evidence was admissible to show identity).


       Relevant evidence may, nevertheless, be excluded under Rule 403 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.”       Tex. R. Evid. 403.      When conducting the

balancing test of Rule 403, the trial court determines whether the probative value of the

evidence is substantially outweighed by one of the countervailing considerations listed

in the rule. Id. In its evaluation of the evidence, the trial court balances (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 a decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury from the
                                             17
main issues, (5) any tendency of the evidence to be given undue weight by a jury that

has not been 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 repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 880

(Tex.Crim.App. 2007).


      Appellant’s identity as one of the robbers was a core dispute in the case. The

restaurant employees were unable to clearly identify appellant. The State’s evidence

corroborating   the   testimony   of   its   accomplice-witness   Morado   was    largely

circumstantial. The trial court reasonably could have considered the evidence of which

appellant complains to be both probative and necessary.           The stolen credit card

evidence had little prejudicial effect as character conformity evidence against appellant

because Vargas testified she did not give a stolen card to appellant. Appellant does not

point to nor do we find anything of record demonstrating the evidence carried a

tendency to confuse or mislead the jury from the issues or to suggest a decision on an

improper basis. And the charge instructed the jury that it could consider any testimony

regarding extraneous offenses committed by appellant only if it believed appellant

committed the other offenses beyond a reasonable doubt and then only for the purpose

of determining motive, intent, preparation, plan, knowledge and identity. We see no

abuse of discretion in a conclusion admission of the complained-of evidence was not

precluded by Rule 403.


      We overrule appellant’s sixth and seventh issues.




                                             18
                                      Conclusion


       Having overruled each of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                               James T. Campbell
                                                   Justice




Publish.




                                          19
