Affirmed and Memorandum Opinion filed March 10, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00209-CR
                              NO. 14-14-00210-CR

                  JONATHAN GLEN JOHNSON, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 263rd District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1377006 & 1377007

                 MEMORANDUM                     OPINION


      Appellant Jonathan Glen Johnson appeals his convictions for aggravated
robbery. See Tex. Penal Code Ann. § 29.03 (West 2011). In a single issue appellant
contends the trial court erred in considering allegations that appellant committed
extraneous aggravated robberies in assessing punishment. We affirm.
                                   BACKGROUND

      After being admonished by the trial court appellant pleaded guilty to two
counts of aggravated robbery. The trial court withheld a finding of guilt and
ordered preparation of a presentence investigation report (PSI).

      Prior to pleading guilty, appellant requested notice of the State’s intent to
introduce evidence “within the ambit” of Texas Rules of Evidence 404(b) and 609,
and article 37.07 of the Texas Code of Criminal Procedure. The State responded
with notice that it intended to introduce “evidence that the Defendant committed
another aggravated robbery at PJ’s mini mart at 10533 East Fwy, Houston, Harris
County, Texas on August 17, 2013.”

      After preparation of the PSI, the trial court held a hearing on punishment. At
the beginning of the punishment hearing appellant objected to the State’s
introduction of the extraneous offense because he did not believe the State could
prove beyond a reasonable doubt that appellant committed the offense. At that time
the trial court withheld a ruling, stating, “I will make a decision if there is
sufficient evidence.”

      At the punishment hearing, Hector Menchaca, Jr. and Chandar Bhatia
testified to the facts of the primary offenses. Menchaca testified that the restaurant
he and his father own was robbed on February 9, 2013, after closing. While
Menchaca and his father were in the back of the restaurant cleaning, appellant
came in wearing a mask and carrying a gun. While pointing the gun at Menchaca,
his father, and the cook, appellant ordered the cook and Menchaca’s father on the
floor, and ordered Menchaca to get the money. Appellant also took Menchaca’s
father’s wallet. Menchaca told appellant they had nothing else, and appellant left
the restaurant.


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       On the same night Bhatia was working in a taco truck located on the same
street as Menchaca’s restaurant. Appellant came to the truck, jumped inside, and
pointed a gun at Bhatia. Appellant ordered Bhatia on the floor, then ordered him to
open the cash register and place all of the money in a paper bag, which Bhatia did.
Appellant told Bhatia, “don’t do anything stupid and I’ll shoot you.”

       Pierre Tannous testified concerning the extraneous robberies that occurred
on August 17 and 19, 2013. On August 19, 2013, Pierre, his wife, Joyce, and a
friend were discussing upgrading the camera system in the store because Joyce had
been robbed in the store two days earlier. In reviewing the video from the earlier
robbery, on August 17, 2013, Pierre believed that the perpetrator was appellant,
who was a regular customer of the store. Pierre told Joyce he was “99 percent
sure” the robber was appellant. Pierre did not report the robbery because he had a
“doubt, 1 percent” that the robber was appellant.

       Pierre further testified that on August 19, 2013, appellant came into PJ’s
Mini Mart, purchased a lottery ticket, and left. Approximately 15 minutes later,
while Pierre was discussing upgrading his security system, a robber pushed the
door of the store in and ordered Pierre, Joyce, and their friend to get down on the
floor. The robber was pointing a small shotgun at them. The robber threatened to
shoot them, and Pierre told Joyce to give him all the money. Pierre identified
appellant as the person who robbed him, but was unable to point him out in the
courtroom. Pierre followed the robber behind the store, and saw him sitting in a car
taking off his bandana, which had covered his face. Pierre made note of the color
and make of the car, tried to memorize the license plate, and noted that the car had
a broken tail light.

       Joyce Tannous did not testify at the punishment hearing, but the parties
entered into a stipulation as to what she would have said. As stipulated by

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appellant, Joyce sold the lottery ticket to appellant on the day of the robbery, and
ten minutes later she thought appellant was the same person who came in and
robbed her. When shown the photospread, her identification was “very tentative
and weak.”

      Officer David Lane of the Houston Police Department investigated the PJ’s
Mini Mart robberies. Through Pierre’s description of the car and partial license
plate number, Lane identified appellant and a female as suspects in the robberies.
Lane showed photospreads to both Pierre and Joyce. Both identified appellant as
the individual who robbed them on August 17 and 19, 2013.

      At the conclusion of the hearing, the trial court sentenced appellant to
confinement for 15 years in each case with the sentences to run concurrently.

      EXTRANEOUS OFFENSE EVIDENCE ADMITTED DURING PUNISHMENT

      In a single issue appellant contends the trial court erred in considering
allegations that appellant committed extraneous aggravated robberies. Specifically,
appellant argues the allegations of extraneous robberies were unfounded and so
prejudicial that it was a violation of due process for the trial court to have
considered them.

      We review the decision to admit evidence of an extraneous offense for abuse
of discretion. Thompson v. State, 425 S.W.3d 480, 490 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d). Article 37.07, section 3(a) of the Texas Code of Criminal
Procedure provides that evidence as to any matter may be offered during the
punishment phase of a trial if the trial court deems it relevant to sentencing. Tex.
Code Crim. Proc. Ann. art. 37.07 § 3(a) (West Supp. 2014). Evidence of
extraneous crimes or bad acts is admissible if they are shown beyond a reasonable
doubt by evidence to have been committed by the defendant or if he could be held


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criminally responsible for them, regardless of whether he was previously charged
with or finally convicted of the crime or act. Id. The Texas Court of Criminal
Appeals has held that when a jury determines punishment, the trial court
determines the threshold issue of admissibility of relevant evidence during the
punishment phase, but the jury, as the finder of fact, determines whether or not the
extraneous offenses were proven beyond a reasonable doubt. Mitchell v. State, 931
S.W.2d 950 (Tex. Crim. App. 1996). But, when the trial court assesses
punishment, the judge acts as factfinder. Therefore, under the reasoning set forth in
Mitchell, when the court assesses punishment, it may determine that an extraneous
offense is relevant to punishment and admit such evidence, but the court may then
only consider the extraneous offense in assessing punishment if it finds that the
offense was proven beyond a reasonable doubt. Williams v. State, 958 S.W.2d 844,
845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).

      Appellant argues that Joyce and Pierre Tannous were unable to identify
appellant as the perpetrator. Both Pierre and Joyce identified appellant in a
photospread shortly after the robberies. Pierre was unable to identify appellant in
the courtroom. Pierre testified that his difficulty in the courtroom came from his
inability to see appellant from the witness stand. Pierre had seen appellant earlier
that day at the courthouse and identified the clothing he had been wearing. Pierre
also testified that he was “99 percent sure” it was appellant who robbed his wife in
the convenience store.

      Article 37.07, section 3(a) specifically allows the introduction of extraneous
offenses or prior bad acts into evidence during the punishment phase of a case as
long as the court deems such matters relevant to sentencing. Mitchell, 931 S.W.2d
at 953. There is no indication in the record that the trial court considered the
extraneous offenses without determining whether they had been proven beyond a

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reasonable doubt. The judge stated only that he would make a decision if there was
sufficient evidence. The judge did not say if he had determined whether the
extraneous offenses or bad acts were proven beyond a reasonable doubt, or if he
considered the extraneous offenses or bad acts in assessing appellant’s punishment.
Because there is no evidence the trial court considered improper evidence in
arriving at appellant’s sentence, we overrule appellant’s sole issue. See Williams v.
State, 958 S.W.2d at 845 (finding no error in introduction of extraneous offense
testimony when trial court assesses punishment if no indication that the court
considered the evidence in assessing punishment).

      We affirm the trial court’s judgment.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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