Affirmed and Memorandum Opinion filed May 30, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00641-CR

                     JOHN DOUGLAS OSBY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1504556

                         MEMORANDUM OPINION

      Appellant John Douglas Osby appeals from his aggravated-robbery
conviction. See Tex. Penal Code § 29.03(a)(2). A jury found appellant guilty and
assessed punishment at incarceration for fifteen years in the Institutional Division
of the Texas Department of Criminal Justice. In two issues, appellant argues his
conviction should be reversed and a new trial ordered because the trial court
erroneously allowed the admission of an extraneous offense, and, in the alternative,
appellant received ineffective assistance of counsel. We affirm.
                                   BACKGROUND

      The complainant, Alfonso Olivares, and his co-worker, Franklin Rogers,
were replacing a sewer line while working for Portland Construction near the
intersection of Link and Main in Houston. After lunch, while Olivares operated a
large winch used to pull pipes, a black Hyundai sedan stopped next to where he
was working. Because vehicles often stop and ask what type of work the crew is
doing Olivares walked over to the vehicle. A man immediately exited from the
back-passenger door of the vehicle and picked up a pipe saw belonging to
Olivares’ employer. When Olivares tried to take the pipe saw back, the man pulled
out a gun and aimed it at Olivares’ forehead. Olivares moved back behind the
machine and called out to his co-worker Rogers, who then came into view.

      As Rogers came into view, the man pointed the gun at Rogers. At that point,
the driver of the sedan opened his door and also pointed a gun at Rogers, though
the driver did not exit the vehicle. Rogers saw the driver’s face and noted a
swirled “M” tattoo on the driver’s neck, and that the driver was wearing a black t-
shirt, black hat with green lining, and black and green shoes. The driver was
described as a light-skinned black male 5’8” to 5’11” tall. The two men took the
pipe saw into the vehicle and drove away. As the sedan drove away, Olivares
typed the license tag of the sedan into his phone. The tag was a temporary paper
tag from a dealer and bore the number 13K3380.

      Detective Senior Police Officer G. Goodnight was assigned to investigate
the robbery. Goodnight developed appellant as a suspect through appellant’s status
as the suspect in an evading arrest incident that occurred a few days after the theft
of the pipe saw. In the evading arrest incident, another police officer observed
appellant driving a black Hyundai sedan with paper license tag number 13K3380 at
a fast rate down a residential street. The officer attempted a traffic stop, but the

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vehicle did not pull over and after a short chase, the fleeing vehicle struck a parked
vehicle. The officer identified appellant as the driver of the evading vehicle and
stated that appellant exited the vehicle and escaped on foot. Police located an
identification card belonging to appellant along with a cell phone in the black
Hyundai.1 Detective Goodnight developed a photo array that contained a picture
of appellant and showed it to Rogers. Rogers positively identified appellant as the
driver of the sedan in the robbery at the construction site.2 Rogers also identified
appellant in court.

       The State charged appellant with aggravated robbery with a deadly weapon,
namely a firearm. The case was tried to a jury and, in the guilt/innocence phase,
the trial court admitted over objection evidence of an extraneous offense involving
another armed robbery with a shooting in which appellant was a suspect. As
discussed in more detail below, the trial court held that appellant opened the door
to the extraneous offense by challenging his identity as the perpetrator of the
charged offense in his counsel’s opening statement and in cross-examination of
several witnesses.       The jury found appellant guilty of aggravated robbery as
charged in the indictment. At the conclusion of the punishment phase, the jury
assessed punishment at confinement for fifteen years in the Institutional Division
of the Texas Department of Criminal Justice and no fine. The trial court signed a
judgment based on the jury’s verdict and this appeal followed.



       1
         The vehicle was a 2012 Hyundai Elantra that had been reported stolen from a dealer.
Although the vehicle involved in the evading arrest incident was identified in the police report as
a 2012 Hyundai Elantra and the vehicle described in the charged offense was identified as a 2015
or 2016 Hyundai Accent, pictures of a 2012 Hyundai Elantra and a 2016 Hyundai Accent
admitted in evidence reveal the vehicles are nearly identical.
       2
         Goodnight also showed an array with appellant’s photo in it to Olivares, though
Olivares did not identify anyone in the array.

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                                          ANALYSIS

       In his first issue, appellant argues the trial court erred in admitting the
evidence of the extraneous offense related to the armed robbery with a shooting
because counsel did not open the door to the admission of the evidence, and also
because the evidence failed to meet the requirements for admission under Texas
Rule of Evidence 404(b). In his second issue, appellant argues in the alternative
that if defense counsel opened the door to the admission of the extraneous offense,
he received ineffective assistance of counsel because defense counsel admitted he
did not intend to and had no strategic reason for opening the door to the extraneous
offense. We address each issue in turn.

I.     The admission of the extraneous offense was not reversible error.

       At trial, the court permitted the State, over repeated objection,3 to introduce
evidence from Raul Portillo, the complainant in the extraneous offense. Portillo
testified that on February 27, 2016 (approximately three weeks after the charged
offense), he was working on cleaning out an attic in a home he owned in north
Houston. The house was under construction and he placed a ladder against the
house on the front porch to access the attic. While Portillo was in the attic, two
males approached on foot and one of them, the taller one, climbed up the ladder
demanding Portillo’s wallet. Portillo threw money down to the floor, at which
point the man went down the ladder and attempted to start Portillo’s truck. The
shorter assailant then went up the ladder with a gun and shot Portillo in the throat.
The shorter assailant was wearing a tank top and Portillo did not mention seeing
any tattoos. After Portillo fell down to the floor, the taller man came over and shot
Portillo in the side. The two men left and Portillo called for help.                    Portillo

       3
         The parties discussed the admission of the extraneous offense at length with the trial
court and the trial court granted appellant a running objection to the admission of the evidence.

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identified the shorter assailant in court as appellant. When Portillo described the
shorter assailant to police, however, he described the shorter assailant as looking
like Mexican boxer Canelo Alvarez, whom photos showed to be a red-headed
Caucasian-looking individual who looked nothing like appellant.

       Several months after the Portillo robbery, police scheduled an appointment
with Portillo to show him a lineup. Unbeknownst to police, just two days before
the appointment, an unknown person identified herself as an investigator and
texted a photo of appellant to Portillo. Without telling police about the texted
photo, Portillo then identified appellant in a photo array as his assailant. 4 The
officer investigating the Portillo robbery and shooting acknowledged that showing
the photo of appellant to Portillo before the photo array would “ruin” the case and
irreparably tainted the identification. After Portillo testified, the trial court gave a
limiting instruction to the jury to consider the evidence only if the jury believed
beyond a reasonable doubt that appellant committed the extraneous offense, and to
consider it only for purposes of identity in the charged offense.

       In his first issue, appellant contends the trial court erred in the admission of
the Portillo extraneous offense.           We review a trial court’s ruling on the
admissibility of an extraneous offense for an abuse of discretion. De la Paz v.
State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); see Mason v. State, 416
S.W.3d 720, 740 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). We will
uphold the trial court’s ruling if it is within the zone of reasonable disagreement.
De la Paz, 279 S.W.3d at 343–44. A trial court’s ruling admitting evidence of
extraneous offenses generally is within the zone of reasonable disagreement if the
evidence shows that (1) the extraneous offense is relevant to a material, non-

       4
          Portillo stated that he also had the photo of appellant on his cell phone while he was
testifying on the stand.

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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. Id. at 344.

      Evidence of an extraneous-offense may be admissible if it logically serves to
make more or less probable (1) an elemental fact, (2) an evidentiary fact that
inferentially leads to an elemental fact, or (3) rebuts a defensive theory. See
Mason, 416 S.W.3d at 740; Hartsfield v. State, 305 S.W.3d 859, 871 (Tex. App.—
Texarkana 2010, pet. ref'd). The trial court here ruled that the Portillo extraneous
evidence was admissible to prove identity.   Identity is one of the listed categories
that may make an extraneous offense relevant.        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”); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.
2011).

A.    Trial counsel opened the door.

      The trial court held that appellant’s counsel opened the door to the
extraneous evidence in his opening statement and through cross-examination.
Appellant argues that counsel did not open the door because the statement in
opening was akin to arguing the State could not meet its burden of proof and cross-
examination was not sufficiently vigorous on identity to open the door.          We
disagree.

      Defense counsel may open the door to evidence of an extraneous offense by
statements made in the opening statement. See Dabney v. State, 492 S.W.3d 309,
317 (Tex. Crim. App. 2016); Mason, 416 S.W.3d at 740. Likewise, when an
appellant vigorously challenges identity through cross-examination, evidence of an
extraneous offense is admissible to rebut a claim of mistaken identity. Mason, 416
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S.W.3d at 740 (citing Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App.
2008)).

      In his opening statement, counsel for appellant told the jury that the evidence
would show the police failed to conduct a sufficient investigation to make sure
appellant is the “right guy sitting here” and “that the real perpetrator is brought to
justice and that we don’t have the wrong guy sitting in court today.” Counsel
further stated: “The evidence is going to show that they have not brought you a
worthy case for that and that they have the wrong guy. We’re going to have
explanations through the evidence of why the defendant was misidentified.”
(emphasis added). These statements were sufficient to raise the issue of identity
and open the door to the admission of the extraneous offense. See Dabney, 492
S.W.3d at 317; Leassear v. State, 465 S.W.3d 293, 303 (Tex. App.—Houston [14th
Dist.] 2015, no pet.).

      Throughout trial, appellant also raised the issue of identity as a defense by
vigorously cross-examining witnesses regarding the reliability of the in and out of
court identifications. Counsel questioned Rogers at length regarding his ability to
see the driver of the vehicle, the driver’s tattoos, how long he was able to view the
driver, and the procedure used when Rogers identified appellant in the photo array.
Counsel established on cross-examination of Detective Goodnight that Olivares
was not able to identify appellant, that the photo array presented to Rogers was not
presented through a blind administrator, and that police developed a suspect for the
auto theft attached to the paper tag 13K3380 named Kwarmaine Martin, but
Goodnight did not investigate Martin. Accordingly, appellant placed his identity
as the perpetrator in dispute. See Mason, 416 S.W.3d at 740 (identity placed in
issue where defense counsel vigorously cross-examined witnesses regarding the
reliability of their identifications); see also Segundo, 270 S.W.3d at 86 (trial court

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has considerable latitude in determining that identity was disputed through cross-
examination).

B.    Any error in the admission of the extraneous offense was harmless.

      When the State seeks to introduce an extraneous offense to prove identity,
the offense must be so similar to the charged offense that the offenses show the
defendant’s “‘distinctive and idiosyncratic manner of committing criminal acts.’”
Mason, 416 S.W.3d at 740 (quoting Page v. State, 213 S.W.3d 332, 336 (Tex.
Crim. App. 2006)). “Such extraneous offense evidence is admissible to prove
identity when the common characteristics of each offense are so unusual as to act
as the defendant’s signature.” Id. (internal quotations omitted). Courts determine
whether sufficient similarity exists based on a comparison of the circumstances
involved in both cases and the time interval between them. See id.

      Appellant argues the extraneous offense and the charged offense were not
sufficiently similar. We will assume, without deciding, that the trial court erred in
admitting the extraneous offense.      We nevertheless conclude the error is not
reversible because the record reveals no harm to appellant.

      The erroneous admission of an extraneous offense is non-constitutional error
that should be disregarded unless it affected the appellant’s substantial rights. Tex.
R. App. P. 44.2(b); Banks v. State, 494 S.W.3d 883, 895 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d). A substantial right is affected when the error has 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). In assessing harm, we
consider harm in light of the entire jury charge, the evidence, and the record as a
whole. See Banks, 494 S.W.3d at 895. Factors to be considered include (1) the
nature and sufficiency of the evidence supporting the verdict; (2) the character of
the error and how it might be considered in connection with other evidence in the
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case, and (3) whether the State emphasized the error. See Schmutz v. State, 440
S.W.3d 29, 39 (Tex. Crim. App. 2014). If the error had no influence or only a
slight influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998).

         In this case, there was sufficient evidence of appellant’s identity as the driver
in the charged offense. Rogers was able to see appellant’s identifying tattoos
during the robbery and provided a positive identification of him through a photo
array and in court. Appellant was observed to be driving a black Hyundai sedan
with the same paper plate number as that used in the charged offense. With regard
to the character of the error, it is significant that appellant’s counsel was able to
expose the weaknesses in the identity of appellant as the perpetrator of the
extraneous offense by showing that the identification of appellant was tainted and
inconsistent with Portillo’s original description of the suspect.

         The State did discuss the extraneous offense in its closing argument, but the
record as a whole suggests the jury did not give the argument credence. Appellant
faced a punishment of incarceration between five to ninety-nine years. In his
closing argument in the punishment phase, appellant’s counsel told the jury that an
appropriate amount of punishment for the charged offense would be ten or fifteen
years.     In response, the State argued that the jury should only give a “short
sentence” of ten to fifteen years if the jury felt the defendant could be rehabilitated,
but that people like appellant, who are “willing to kill for almost nothing” cannot
be rehabilitated. The jury assessed punishment at fifteen years’ incarceration.
Given that the jury assessed fifteen years as punishment, which is on the lower end
of the permissible punishment range, we are confident that the jury did not give
much, if any, credence to the extraneous offense. We conclude any error in the
admission of the extraneous offense was harmless.

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      We overrule appellant’s first issue.

II.   Appellant did not receive ineffective assistance of counsel.
      In his second issue, appellant argues that his counsel, by opening the door to
the extraneous offense, rendered ineffective assistance of counsel because counsel
admitted that he did not have a strategic reason for doing so. We conclude that
appellant has not established ineffective assistance of counsel.

A.    Standards of review

      In reviewing claims of ineffective assistance of counsel, we apply a two-part
test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective
assistance of counsel, an appellant must prove by a preponderance of the evidence
that: (1) his trial counsel’s representation was deficient in that it fell below the
standard of prevailing professional norms; and (2) there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Id. When evaluating a claim of ineffective assistance, we consider the totality of
the representation and the particular circumstances of the case. Lopez v. State, 343
S.W.3d 137, 143 (Tex. Crim. App. 2011); Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). There is a strong presumption that trial counsel’s actions
and decisions were reasonably professional and were motivated by sound trial
strategy. See Salinas, 163 S.W.3d at 740.

      At a hearing on the admissibility of the extraneous offense, counsel for
appellant stated that he did not intentionally open the door to the extraneous
offense and that to do so would be “massive ineffective assistance of counsel.”
Counsel also stated, however, that identity was “the entire case” and that he did not
know what questions he could ask of any witness that would not raise the issue of


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identity. Thus, counsel did have a trial strategy in asking the questions that opened
the door—to present the only defense appellant had to the charged offense. We
faced a similar ineffective assistance argument in Bass v. State, where the appellant
challenged her attorney’s decision to put the appellant on the stand, which in turn
opened the appellant to cross-examination on prior convictions and extraneous
offenses. 713 S.W.2d 782, 785 (Tex. App.—Houston [14th Dist.] 1986, no pet.).
We concluded that counsel was not ineffective in doing so, because establishing
lack of intent, which was appellant’s only real defense, was a plausible trial tactic
and the court will not second-guess the wisdom of a plausible trial tactic. See id.
Likewise, we conclude that appellant’s counsel in this case was not ineffective by
presenting evidence and questioning witnesses on identity when identity was the
only real defense, even though it may have opened the door to an extraneous
offense. Defense counsel was prepared for the admission of the extraneous offense
and in fact impeached the identity of appellant made by Portillo in the extraneous
offense.

      Appellant also argues that counsel was ineffective for failing to ask the trial
court to instruct the jury to disregard the evidence of the extraneous offense. We
disagree. By objecting repeatedly and obtaining rulings overruling his objections
to the extraneous offense evidence, counsel preserved the issue for review, and
there was no need to request an instruction to disregard. See Hicks v. State, 837
S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding counsel
not ineffective for failing to request instruction to disregard hearsay evidence
where counsel timely objected and trial court overruled objection). The trial court
gave a limiting instruction when the extraneous evidence came in and again in the
jury charge, instructing the jury to only consider the evidence if it found beyond a
reasonable doubt that appellant committed the extraneous offense and only for


                                         11
purposes of identity. Counsel was not deficient for failing to request an instruction
to disregard the evidence of the extraneous offense. Id.

      Further, we conclude appellant has not shown by a preponderance of the
evidence a reasonable probability that, but for counsel’s deficiency, the result of
the trial would have been different. As explained in Section I(B) above, the jury
did not appear to take the extraneous offense into account.

      We overrule appellant’s second issue.

                                      CONCLUSION

      Having overruled appellant’s two issues on appeal, we affirm the trial
court’s judgment.



                                /s/     Jerry Zimmerer
                                        Justice


Panel consists of Justices Christopher, Zimmerer, and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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