                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-12-00198-CR
                                       No. 07-12-00199-CR
                                  ________________________

                               JEREMY HOUSTON, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 331st District Court
                                      Travis County, Texas
                    Trial Court Nos. D-1-DC-10-204916 & D-1-DC-10-204917;
                                Honorable David Crain, Presiding


                                       September 17, 2013

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Appellant, Jeremy Houston, was convicted following a jury trial of burglary and

attempted burglary of a habitation, each enhanced by a prior felony conviction. 1 He was

sentenced to thirty years and twenty years confinement respectively, with the two
1
 Cause Nos. D-1-DC-10-204916 (burglary) and D-1-DC-10-204917 (attempted burglary). See TEX. PENAL
CODE ANN. §§ 15.01(a), 30.02(a)(1) (West 2011). As charged, the offenses were punishable as a first
degree felony and a second degree felony, respectively. See id. at 12.42(a) & (b), 15.01(d), 30.02(c)(2),
(West 2011 & West Supp. 2012).
sentences to be served concurrently. By four issues, Appellant asserts the evidence

was insufficient to convict him of (1) burglary and (2) attempted burglary of a habitation,

and (3) and (4) the trial court erred by admitting extraneous offense evidence to

establish identity. We affirm. For purposes of logical analysis, we will address issues

three and four before turning to issues one and two.


                                      BACKGROUND


      Appellant was indicted for burglary of the residence of Lynette Cabrera, the

complainant in Cause No. D-1-DC-10-204916, and attempted burglary of the residence

of Ryan Schultz, the complainant in Cause No. D-1-DC-10-204917.               At trial the

evidence showed that at approximately 11:00 a.m., on the morning of August 19, 2010,

a neighbor of Cabrera and Schultz heard a loud bang or crash while he was painting in

his backyard. He looked across the street over his fence and observed a large black

male moving from Schultz’s residence to Cabrera’s residence. Schultz’s door had been

kicked in.   Both locks were smashed and the frame was cracked.            Evidence later

established that Schultz’s dog, a Boxer, was in the home at the time.


      As the neighbor watched, a Hispanic male wearing a black tank top, tan shorts,

and white tennis shoes emerged from a white SUV parked in Cabrera’s driveway. The

black male was wearing a sweat-stained gray t-shirt, dark blue or black shorts, and

black shoes. The Hispanic male held open Cabrera’s screen door while the black male

attempted to kick the front door in. After a couple of running leaps, the black male

managed to kick in Cabrera’s front door.        The neighbor called 911.     Although the

neighbor was not close enough to see the black male’s face, he described his build as


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that of a large muscular male. At trial, he identified Appellant’s build as the same

general build as the man he saw kick the door in.


      Within minutes, Deputy Santiago Salazar of the Travis County Sheriff’s Office

arrived and discovered that Cabrera’s front door had been kicked in. The house was

empty and the white SUV was still in the driveway with its engine running. Salazar

observed that the house had been rummaged through, items were scattered about, and

bedroom drawers had been emptied. Near the front door, he noticed a television, guitar

and two leather jackets.


      Deputy Curtis Orton also responded to the dispatch of a burglary in progress.

However, before he arrived at Cabrera’s house, he spotted a man who matched the

description of the potential burglar given to him by dispatch.   Deputy Orton pulled

behind the man, approached him, and struck up a conversation. The man was later

identified as Appellant.   Orton observed that, at the time, Appellant was sweating

profusely. When asked, Appellant indicated someone dropped him off and he was

looking for a friend’s house, however, he did not know who dropped him off or where

the friend’s house was located. Deputy Orton decided to detain Appellant for further

investigation and began to handcuff him. He had one handcuff on when Appellant

broke away and fled.


      Within minutes, another deputy, Jeffrey Smith, observed Appellant walking down

the sidewalk. Based upon the description he received from dispatch, he pulled across

the street alongside Appellant.   Appellant turned around and raised his hands up.




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Deputy Smith could see handcuffs dangling from Appellant’s wrist.                      In addition to

Appellant, the deputies also arrested two Hispanic males.


        At trial, identity of the perpetrator was a contested issue. 2 For the purpose of

circumstantially establishing identity, the State sought to present evidence of an

extraneous offense that occurred approximately six months later.                    In that offense,

Appellant was arrested for burglary of a habitation. At the time of his arrest he was

driving a car with two Hispanic passengers and he had just committed a burglary in a

residential neighborhood at approximately 10:45 a.m. The frame on the door had been

broken and there was a footprint near the door handle. The house had been rummaged

through, drawers emptied, and items scattered throughout the house. In the trunk of his

car, officers found electronic items—television, computers, and a sound bar belonging

to the burglarized homeowner. After stopping Appellant’s car, the deputy attempted to

handcuff him when he pulled away, fled and was subsequently apprehended. He was

wearing a dark jacket, shorts and tennis shoes. Over Appellant’s objection, the trial

court admitted the extraneous offense evidence.


                                 EXTRANEOUS OFFENSE EVIDENCE


        In his third issue, Appellant contends the trial court erred in admitting evidence of

the second burglary because it was not sufficiently similar to the charged offenses to

amount to a “signature” offense. See TEX. R. EVID. 404(b). In his fourth issue, he

contends that, even if evidence of the second burglary was admissible under Rule

404(b), the trial court still erred in admitting the evidence because its probative value
2
 “When the identity of the perpetrator can be established by circumstantial evidence only, identity is a
contested issue even if the defense rests with the State, puts on no evidence and raises no defensive
theories.” Devoe v. State, 354 S.W.3d 457, 470-71 (Tex.Crim.App. 2011).

                                                   4
was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.

The State sought admission of the second burglary under Texas Rule of Evidence

404(b) asserting that the crimes had a unique “signature.”      The State asserts the

extraneous offense was more probative than prejudicial, therefore, admissible to show

identity of the accused. See TEX. R. EVID. 403, 404(b).


      STANDARD OF REVIEW


      We review the trial court’s decision to admit evidence of extraneous acts for an

abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)

(op. on reh’g). A trial court’s ruling should only be reversed as an abuse of discretion

when the decision lies outside the zone of reasonable disagreement. Robbins v. State,

88 S.W.3d 256, 260 (Tex.Crim.App. 2002). Trial courts have broad discretion in their

evidentiary rulings because they “are usually in the best position to make the call on

whether certain evidence should be admitted or excluded.”       Guzman v. State, 955

S.W.2d 85, 89 (Tex.Crim.App. 1997).


      ANALYSIS


      Evidence of an extraneous offense is admissible to prove identity, when identity

is an issue, only if there is some distinguishing characteristic common to both the

extraneous offense and the offense for which the accused is on trial. Ransom v. State,

503 S.W.2d 810, 814 (Tex.Crim.App. 1974). The common distinguishing characteristic

may be proximity in time and place or the common mode of commission of the offenses.

Id. at 813 (citing Ford v. State, 484 S.W.2d 727, 729 (Tex.Crim.App. 1972)). To be

admissible for the purposes of showing identity, the acts sought to be admitted must be

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“so similar to the offense charged that the accused’s acts are marked as his handiwork,

that is, his ‘signature’ must be apparent from a comparison of circumstances in both

cases.” Bishop v. State, 869 S.W.2d 342, 346 (Tex.Crim.App. 1993).


       Here, identity was an issue and the extraneous burglary was nearly identical to

the offenses-at-issue.     The extraneous burglary was carried out in a similar

neighborhood, at nearly the same time of day, with an identical number of perpetrators,

of the same ethnic background, and in the same fashion (the front door was kicked in).

In addition, the stolen items were similar (electronics) and, Appellant’s response to

being arrested was similar (when the deputy attempted to handcuff him, he broke away

and fled).


       While admission of the extraneous offense evidence was inherently prejudicial

due to the posture of Appellant, the same may be said of any such “signature” evidence

which is probative of a crime for which a criminal defendant stands accused. Given the

facts of the case before us, the fact that identification was an issue during trial, and the

high degree of similarity between the offenses, we agree with the trial court’s analysis

that the probative value of the extraneous evidence outweighed its prejudicial or

inflammatory effect. See Ransom, 503 S.W.2d at 812-13. This is particularly so given

that the trial court gave a cautionary instruction before the evidence was admitted at

trial, the jury charge contained an extraneous offense instruction, the State devoted a

substantial portion of its closing argument to the jury’s responsibility to follow the

extraneous offense instruction, and defense counsel highlighted the same in his closing

argument.



                                             6
      Taking all of the above facts into consideration, we find the existence of sufficient

common distinguishing characteristics between the extraneous and primary offenses to

tip the balance in favor of admitting the extrinsic probative evidence going to the

contested, material issue of identification.    Accordingly, Appellant’s third and fourth

issues are overruled.


                             SUFFICIENCY OF THE EVIDENCE


      In his first and second issues, Appellant asserts the evidence at trial was

insufficient as a matter of law because there is no direct evidence he entered the

residence of Lynette Cabrera (Issue One), or opened the door at the residence of Ryan

Schultz (Issue Two). We disagree.


      STANDARD OF REVIEW


      In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict

and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a fact-finder could have found the essential elements of the crime beyond a

reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 5560 (1979));

Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). In conducting our review,

we do not sit as a thirteenth juror and may not substitute our judgment for that of the

fact-finder by re-evaluating the weight and credibility of the evidence. Isassi v. State,

330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Rather, we defer to the fact-finder to fairly



                                            7
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from

basic to ultimate facts. Id.


       Further, circumstantial evidence alone is sufficient to establish the guilt of the

accused and the standard of review as to the sufficiency of evidence is the same for

both direct and circumstantial evidence cases. Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007). Each fact need not point directly and independently to the guilt

of the accused, so long as the cumulative force of all the evidence, coupled with

reasonable inferences to be drawn therefrom, is sufficient to support the conviction.

Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006).


       BURGLARY AND ATTEMPTED BURGLARY


       A person commits the offense of burglary of a habitation if, without the effective

consent of the owner, he enters a habitation with the intent to commit a felony, theft, or

an assault. TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). A person “enters” a

habitation if he or she intrudes any part of their body, or any physical object connected

to their body. Id. at § 30.02(b). “Entry” is established when the plane of the opening of

the house is broken, and may be accomplished by placing a foot inside a door frame, by

cutting window or door screens, or by breaking a door lock or frame. Martinez v. State,

304 S.W.3d 642, 660 (Tex.App.—Amarillo 2010, pet. ref’d) (citing Ortega v. State,

S.W.2d 746, 747 (Tex.Crim.App. 1981)). The entry element of a burglary offense may

be proven by inferences, just as inferences may be used to prove the elements of any

other offense. Lopez v. State, 884 S.W.2d 918, 921 (Tex.App.—Austin 1994, pet. ref’d).

Moreover, section 30.02 “does not require proof of a completed theft; all that needs be


                                            8
shown is an attempt to commit a felony or theft.” Martinez, 304 S.W.3d at 660 (citing

Williams v. State, 997 S.W.2d 415, 418 (Tex.App.—Beaumont 1999, no pet.) (emphasis

supplied).


      To prove attempted burglary, the State must establish that Appellant, with the

requisite intent, did an act, amounting to more than mere preparation to enter the

habitation, which tended, but failed, to effect the commission of burglary of a habitation.

See TEX. PENAL CODE ANN. § 15.01(a) (West 2011). See also Roach v. State, 635

S.W.2d 169, 170 (Tex.App.—San Antonio 1982, no pet.). The State need not show that

“anything was taken from the building, but only that there was an attempted breaking

and entering with the intent to commit the taking or theft.” Salinas v. State, 721 S.W.2d

538, 540 (Tex.App.—Corpus Christi 1986, pet. ref’d) (emphasis supplied).


      ANALYSIS


      Viewing the evidence in a light most favorable to the verdict and drawing all

reasonable inferences therefrom, we find the evidence legally sufficient to support

Appellant’s convictions for burglary and attempted burglary.         The front doors of

Cabrera’s and Schultz’s residences were damaged when Appellant kicked them in.

Cabrera’s house had been rummaged through while a television, guitar, and two leather

jackets were removed from their accustomed locations and placed near the front door.

Appellant fit the neighbor’s description of one of the burglars and, at trial, the neighbor

testified Appellant had the same general build as the black male burglar.             See

Livingston v. State, 739 S.W.2d 311, 329-30 (Tex.Crim.App. 1987), cert. denied, 487

U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988) (“The fact that a witness cannot


                                            9
give a positive identification of another person goes to the weight of his testimony, not to

its admissibility; therefore, the lack of positive identification is a jury issue.”) Appellant

was found in the immediate vicinity of the burgled houses; Roach, 635 S.W.2d at 170

(presence is a circumstance tending to prove guilt), and provided evasive responses

when questioned by Deputy Orton.            See Gear v. State, 340 S.W.3d 743, 747

(Tex.Crim.App. 2011) (implausible and inconsistent statements to officers may be

considered as affirmative evidence of guilt). He also resisted Deputy Orton’s efforts to

handcuff him and fled.       Devoe, 354 S.W.3d at 470 (“[F]light is admissible as a

circumstance from which an inference of guilt may be drawn.”). See Clayton v. State,

235 S.W.3d 772, 780 (Tex.Crim.App. 2007).


       Moreover, as discussed above, we find that evidence of the extraneous burglary

committed six months later was so similar to the offenses-at-issue that the offenses are

marked by Appellant’s handiwork, providing additional, albeit circumstantial evidence of

identity. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996). Based on

consideration of these facts, we find that a reasonable fact-finder could have found the

essential elements of each crime beyond a reasonable doubt. Accordingly, Appellant’s

first two issues are overruled. See Martinez, 304 S.W.3d at 660; Salinas, 721 S.W.2d

at 539-40; Roach, 635 S.W.2d at 169-71.


                                        CONCLUSION


       The trial court’s judgments are affirmed.

                                                   Patrick A. Pirtle
                                                      Justice
Do not publish.


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