Opinion issued December 19, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00675-CR
                            ———————————
                 MICHAEL FRANCIS GRANT II, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 300th District Court
                            Brazoria County, Texas
                        Trial Court Case No. 77105-CR


                          MEMORANDUM OPINION

      A jury convicted Michael F. Grant, II of aggravated robbery. After finding the

enhancement paragraphs true, the jury sentenced him to 75 years’ confinement. See

TEX. PEN. CODE § 29.03. In his first six issues, Grant contends that the trial court

erred by overruling his objections pursuant to evidence rules 404(b) and 403 and
allowing the State to present evidence of three extraneous offenses during the guilt-

innocence phase of the trial. In his seventh issue, Grant contends that the trial court

erred by denying his request to limit the jury’s consideration of extraneous offenses

to his identity. We reverse and remand for a new trial.

                                     Background

      One afternoon in the summer of 2015, a man described as “white or Hispanic”

with “medium height and weight” entered a Sonic Drive-In restaurant in Pearland,

Texas carrying a Weed Eater. He was wearing khaki shorts, a long-sleeved white

shirt, a baseball cap, and a white rag or t-shirt covering his face below his eyes.

Witnesses observed the man enter the employee-only kitchen area with a black gun.

      The man pointed his gun at the assistant manager, A. Quintanilla, and other

employees, ordered them to give him money from the cash register, and threatened

to shoot one of them if they did not comply with his orders. Quintanilla told him that

no cash registers are used at Sonic. The man then demanded that she open the safe

and counted down from the number ten. Quintanilla quickly led the man to the safe

although she did not know the combination to open it. Once he saw the safe, the man

pushed Quintanilla out of the way.

      Quintanilla and the other employees immediately ran out of the back door to

a car owned by the mother of one employee who happened to be at the restaurant

eating lunch. They saw the man run through the back door and run toward a nearby


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grocery store. One of the employees called 911 to report the incident, and then she

and the other employees returned to the restaurant to meet the responding officers.

While this was happening, a city code enforcement officer, E. Kimberly, was parked

in the grocery store’s parking lot. He saw a black-colored sedan speeding from the

grocery store parking lot. Soon after the car disappeared from his view, Kimberly

saw several police cars arrive at the Sonic. Kimberly met with the responding

officers and provided them with a partial description of the vehicle he saw leaving

the parking lot.

      During their investigation, the officers watched the Sonic surveillance video

and determined that Grant was the suspect in the aggravated robbery. An officer

went to Grant’s home and saw a black sedan in the driveway. During a voluntary

search of Grant’s home, officers recovered a Weed Eater. An officer also searched

Grant’s car and found two black bags, a pair of shorts, and toy guns. The officer

arrested Grant for aggravated robbery.

      A grand jury indicted Grant on an aggravated robbery charge. The indictment

contained an enhancement paragraph based on a 2001 conviction for aggravated

robbery. Grant pleaded not guilty. The State provided Grant with notice of its intent

to introduce evidence of other crimes, wrongs, or acts that Grant had committed to

establish his identity as the robber.




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                                  Trial Testimony

      During the guilt/innocence phase of trial, the State called three witnesses who

identified Grant as the robber separate offenses in each of the beauty stores that they

worked in. Defense counsel objected to admission of extraneous-offense evidence

under Rules of Evidence 403 or 404(b).1 The trial court overruled the objection and

admitted testimony regarding the extraneous offenses.

Witness testimony of Y. Sandoval

      In June 2015, Y. Sandoval worked as a sales associate at Sally Beauty located

on Almeda-Genoa Road in Houston, Texas. On the afternoon of June 19, 2015, a

man entered the store wearing a t-shirt, a baseball cap, and shorts. When Sandoval

asked him if he needed any help, the man declined and told her that he was talking

to his wife on his cell phone. After walking around the store for a while, the man

approached Sandoval, lifted his shirt, and brandished a gun in his waistband. The

man pointed the gun at Sandoval and demanded she open the cash register. Sandoval

complied, and the man grabbed about $500.00 from the register. Because the robber

did not cover his face, Sandoval could note his appearance.

      Next, the man commanded Sandoval to open the safe, but she was unable to

do so because she did not have the safe key. At that time, another employee, M.

Sanchez, left through the back door, locking it as she escaped. After the robber ran


1
      See TEX. R. EVID. 403, 404(b).
                                          4
from the store, Sandoval called 911 and reported the robbery. Later, Sandoval

identified Grant as the robber through an in-person lineup.

Witness testimony of M. Sanchez

      In 2015, M. Sanchez worked as an assistant manager at the same Sally Beauty

store. Sanchez testified about two robberies at this location—the June 19 robbery

that Sandoval had testified about and a second one.

      Sanchez first testified about the June 19 robbery. She observed a man wearing

shorts enter the store and walk around for about 45 minutes without making a

purchase. She sent an employee to ask him if he needed any assistance and carried

her cash register to the back office to reconcile her till. During the robbery, the man

asked her for the keys to the safe. Sanchez told him that the cashier in the front had

the keys. He took the money from Sanchez’s register, placed the money in a black

bag, and went to the front of the store. She immediately closed the back office door

and ran through a back exit to a nearby store to notify the police of the robbery.

      Sanchez testified about a second robbery that occurred during the afternoon

of July 16, 2015. On that day, Sanchez and a cashier were working in the store. As

Sanchez was stocking one of the lower shelves with supplies, she noticed a man walk

into the store with a white towel on his face. The man demanded money from the

cashier. He then noticed Sanchez on the floor and told her to get up and open the

register. As she was entering her code, he pointed a gun at her and counted down


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from the number five. When Sanchez opened the register, the man took the money,

placed the money in a black bag, and left the store. Sanchez called the police.

Sanchez later identified Grant as the suspect in the second robbery through an in-

person lineup. During the Sonic robbery trial, Sanchez testified that the same person

had robbed Sally on June 19 and July 16. She said the suspect had the same eyes,

body build, voice, and type of walk.

Witness testimony of G. Gomez

      In July 2015, G. Gomez worked as an associate at Sally Beauty located on

West Bay Area Boulevard in Houston, Texas. On the evening of July 9, 2015,

Gomez felt a gun graze her hip and heard a man say, “Turn around and go to the

safe.” Gomez complied. The man was wearing a baseball cap and a bandana

covering his mouth. When Gomez could not open the safe, the man led her to the

back office and told her to rummage through the drawers to find the safe key. After

she could not find the key, the man hurriedly left through the back door. Sometime

after Gomez reported the robbery, an officer contacted her to do a lineup. She

identified Grant as the suspect through a photo lineup. During the Sonic trial, Gomez

testified that she had been able to identify Grant in the photo lineup because he had

distinct, recognizable features even though he wore a covering over his face during

the Sally Beauty robbery.




                                         6
      During the jury charge conference, defense counsel objected to the proposed

charge. He asked the court to limit the extraneous-offense charge to identity and

asked to remove “motive, opportunity, intent, preparation, plan, or knowledge” from

the charge. Overruling the objection, the trial court gave the jury a limiting

instruction for extraneous offenses and included all permitted uses under Rule

404(b).2 The trial court provided the jury with the following instruction:

      You cannot consider testimony of extraneous offenses for any purposes
      unless you find and believe beyond a reasonable doubt that the
      defendant committed any such extraneous offense. Even then you may
      only consider the same in determining the motive, opportunity, identity,
      intent, preparation, plan, or knowledge of the defendant; or as the same
      may relate to the rebuttal of a defensive theory, if any, in connection
      with the offense alleged against the defendant in the indictment in this
      case and for no other purpose.

The jury found Grant guilty of aggravated robbery and, after hearing evidence in the

punishment phase of the trial, assessed 75 years’ confinement. Grant appealed.

                                    DISCUSSION

      In his first six issues, Grant asserts that the trial court erred by admitting

extraneous-offense evidence of three Sally Beauty robberies because he did not

place his identity at issue.


2
      Rule 404(b) precludes a defendant from being tried for his collateral crimes or for
      having a propensity for criminal conduct. TEX. R. EVID. 404(b); Nobles v. State, 843
      S.W.2d 503, 514 (Tex. Crim. App. 1992) (en banc). Rule 404(b)(2) states, in part,
      that extraneous-offense “evidence may be admissible for another purpose, such as
      proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
      of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2).
                                           7
A.    Standard of review

      Appellate courts review a trial court’s determination of the admissibility of

extraneous-offense evidence under an abuse-of-discretion standard. Devoe v. State,

354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial court’s ruling to admit

extraneous-offense evidence will be upheld if it is “within the zone of reasonable

disagreement.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A

trial court’s ruling on extraneous-offense evidence is generally within the zone of

reasonable disagreement “if the evidence shows that 1) an extraneous transaction is

relevant to a material, non-propensity issue, and 2) the probative value of that

evidence is not substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009) (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

1997) (en banc)). Furthermore, an evidentiary ruling under any applicable theory of

law will be upheld, “even if the trial judge gave the wrong reason for his right

ruling.” Id. (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).

                                    Rule 404(b)

      Generally, evidence of a person’s character is inadmissible to prove that on a

particular occasion the person acted in conformity with the character or trait. TEX.

R. EVID. 404(a)(1). Although evidence of a crime, wrong, or other act is not

admissible to prove a person’s character to show that on a particular occasion the


                                         8
person acted in accordance with the character, this evidence may be admissible for

other purposes, such as proving identity of the accused. TEX. R. EVID. 404(b). “An

extraneous offense may be admissible to show identity only when identity is at issue

in the case.” Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); see Jabari

v. State, 273 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A

defendant may place his identity in issue by his opening statement, cross-

examination, affirmative evidence, or defensive theory. See, e.g., Powell v. State, 63

S.W.3d 435, 439–40 (Tex. Crim. App. 2001) (opening statement); Page, 137 S.W.3d

at 78 (cross-examination); Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App.

2008) (affirmative evidence); Wintters v. State, 616 S.W.2d 197, 200 (Tex. Crim.

App. 1981) (defensive theory).

A.    The trial court abused its discretion when it overruled Grant’s objection
      to evidence of extraneous offenses

      The trial court ruled that the extraneous evidence of the three Sally Beauty

robberies was admissible to prove identity. See Tex. R. Evid. 404(b)(2) (extraneous

offenses admissible if relevant to other matters, such as “proving motive,

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

accident”). The State introduced, over Grant’s objection, extraneous-offense

evidence of unadjudicated robberies that occurred in another county to establish

Grant’s identity as the suspect in the Sonic robbery. We hold that even if Grant



                                          9
placed his identity at issue, the extraneous robberies were not distinctive or similar

enough to be probative of the robber’s identity.

      Under Rule 404(b), the Court applies a two-prong test to determine “whether

the evidence is relevant to a fact of consequence in the case apart from its tendency

to prove conduct in conformity with character and whether the probative value of

the evidence is substantially outweighed by unfair prejudice.” Mason, 416 S.W.3d

at 740 (citations omitted). The purpose of this test is to ensure that the defendant is

tried for the offense charged, and not for any other crimes. Segundo, 270 S.W.3d at

87. To establish that an extraneous offense is relevant in proving identity, the record

must show common characteristics between the charged crime and the extraneous

offense. Id. at 88. These characteristics must be so distinctively similar that they

constitute a “signature” or show the accused’s “distinctive and idiosyncratic manner

of committing criminal acts.” Id.; Page, 213 S.W.3d at 336.

      Common characteristics that may make extraneous offenses much like the

charged offense include, without limitation, “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

(providing, as an example, “three bank robberies are committed over a four-year

period in different cities in which the robber used an antique silver crossbow.”).

Extraneous-offense evidence need not be completely identical to the charged offense


                                          10
to be probative. Page, 216 S.W.3d at 338. Generic similarities will not constitute a

signature because the “signature must be apparent from a comparison of the

circumstances in both cases.” Id. at 336; Segundo, 270 S.W.3d at 88.

      In our view, the characteristics of the charged crime and the extraneous

offenses are too dissimilar to establish a signature. The three extraneous offenses

were all robberies of Sally Beauty stores in Harris County. The charged offense was

a robbery of a Sonic restaurant in Brazoria County. The testimony regarding the

description of the clothing worn by the robber was inconsistent. Sandoval testified

that he wore shorts, a light-colored t-shirt, and a baseball cap without anything

covering his face. She noticed a tattoo on his calf. Gomez testified that the West Bay

Area robber wore a baseball cap and a bandana covering the lower half of his face.

Sanchez only described the suspect in the Almeda-Genoa robbery as someone

wearing a baseball hat. In the Sonic robbery, Quintanilla testified that the suspect

wore khaki shorts, long-sleeved white shirt, a black baseball hat, and a white rag or

t-shirt covering his face below his eyes. These are generic descriptions of common,

everyday clothing with inconsistent use of a face covering. Moreover, the witnesses

testified to generic physical similarities describing their robbers as White or

Hispanic with light complexion, medium height, and medium weight. There were

additional inconsistencies regarding the use of a black bag or a Weed Eater in the

robberies. Nothing about the description of the suspects in these robberies was so


                                         11
“unusual that it is highly likely that each robbery was committed by the same

person.” Segundo, 270 S.W.3d at 88. We conclude that the trial court’s decision to

admit the three extraneous offenses was not within the zone of reasonable

disagreement because the descriptions lacked consistency to establish a signature or

identity.

B.     The admission of the extraneous-offense evidence was harmful

       Finding error in the admission of evidence, however, does not end our

analysis. We review the erroneous admission of extraneous-offense or extraneous-

bad-act evidence for non-constitutional error under Texas Rule of Appellate

Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Rodriguez v. State, 546 S.W.3d 843,

860 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). Under Rule 44.2(b), we

disregard the error unless it affected appellant’s substantial rights. TEX. R. APP. P.

44.2(b). A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776

(1946)). But an error does not affect a substantial right if we have “fair assurance

that the error did not influence the jury, or had but a slight effect.” Solomon v. State,

49 S.W.3d 356, 365 (Tex. Crim. App. 2001). We must examine whether the evidence

had significant potential “to lure the factfinder into declaring guilt on a ground




                                           12
different from proof specific to the offense charged.” Old Chief v. United States, 519

U.S. 172, 180 (1997).

      Extraneous-offense evidence is “inherently prejudicial.” Sims v. State, 273

S.W.3d 291, 294–95 (Tex. Crim. App. 2008). Evidence of three other robberies in a

contiguous county necessarily had a palpable effect on the jury. The evidence was a

focus of the trial and was highlighted during closing arguments. In its closing

argument, the State spent a brief amount of time summarizing its theory of the Sonic

robbery, yet a significant amount of time reciting the witness testimony about the

Sally Beauty robberies. In describing its strategy to prove the offense charged

through extraneous offenses, the State argued:

      Harris County can handle Harris County cases. But Brazoria County
      needs to handle Brazoria County cases, and the way we do that is to
      prove identity through Harris County cases.

      The prejudicial impact of the extraneous-offense evidence is reinforced when

we consider the lengthy sentence of 75 years’ confinement for an armed robbery

with no injuries. We cannot say, with fair assurance, that the judgment was not

substantially swayed by the error in admitting this evidence, given the significance

the State placed on it. See Johnson v. State, 43 S.W.3d 1, 4 (Tex. (Tex. Crim. App.

App. 2001) (discussing substantial-harm standard).

      We acknowledge that there was other evidence supporting an inference that

Grant committed an aggravated robbery based on the Sonic surveillance video and


                                         13
the partial license plate. This information led the officers to Grant’s home, and they

found a car matching the partial license plate, the Weed Eater, and toy guns. But, as

the United States Supreme Court has noted, our substantial-harm inquiry cannot be

merely whether there was enough evidence of guilt to support the judgment of

conviction, apart from the error. Kotteakos, 328 U.S. at 764–65. Rather, the inquiry

is “whether the error itself does, and, if the conclusion is that there is grave doubt,

then “the conviction cannot stand.” See Johnson, 43 S.W.3d at 4 (quoting and

applying Kotteakos).

      Nearly all of the trial was testimony describing the extraneous Sally Beauty

robberies. The State adduced significant testimony from the witnesses of the Sally

Beauty robberies about how they identified the robber of the Sally Beauty robberies

through a photo array or an in-person lineup. The State did not, however, adduce any

testimony that these witnesses identified Grant as the robber of the Sonic restaurant

based on a review of the Sonic surveillance video. Because we have grave concerns

that the admission of extraneous-offense evidence had a significant effect on the

outcome of the trial because of the State’s emphasis on the evidence and the way it

incorporated the other robberies into its trial theme, we conclude the substantial-

harm standard is satisfied. For these reasons, we sustain Grant’s first six issues.




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                                   Conclusion

      Because the trial court abused its discretion in admitting the evidence of the

three unadjudicated Sally Beauty robberies and that error was harmful, we reverse

the trial court’s judgment and remand for a new trial. Given our resolution of the

evidentiary issues, we need not reach Grant’s seventh issue challenging the jury

charge.



                                                Sarah Beth Landau
                                                Justice
Panel consists of Justices Lloyd, Goodman, and Landau.


Do not publish. TEX. R. APP. P. 47.2(b).




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