Affirmed and Memorandum Opinion filed April 24, 2012.




                                          In The

                     Fourteenth Court of Appeals

                                 NO. 14-11-00332-CR


                        STEVDRICK JACKSON, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 263rd District Court
                               Harris County, Texas
                          Trial Court Cause No. 1263480


                    MEMORANDUM                     OPINION

      Appellant, Stevdrick Jackson, appeals his conviction of capital murder. In a single
issue, appellant contends the trial court erred by permitting the State to present
extraneous-offense evidence. We affirm.

                                    BACKGROUND

      In August 2006, Robert Voss drove appellant, Vanessa Esparza, and another man
in Voss’s Cadillac from Mississippi to Houston. Apparently, the purpose of the trip was
to purchase narcotics in Houston. During the trip, Voss observed appellant in possession
of a .22 caliber semi-automatic handgun. Voss did not see any other weapons. When the
foursome arrived in Houston, they rented a motel room. On August 21, 2006, appellant
and Esparza stole Voss’s Cadillac and visited one of Esparza’s friends.

      According to Esparza, after she and appellant visited her friend, the following
events occurred. Appellant slowly drove the Cadillac around a Valero gas station before
parking at a gas pump. Appellant followed Esparza into the Valero convenience store but
did not tell Esparza why he was entering the store. There was nobody in the store except
the clerk (the “complainant”), who was standing behind the counter. Esparza was filling
a drink cup at the soda fountain when she heard three or four “popping sounds.” She
turned and saw appellant “jumping over” the counter. Appellant was holding a .22
caliber handgun, which he regularly carried in his pants pocket. Appellant stole money
from the cash register and the complainant’s wallet.

      Appellant provided the following, divergent testimony. Esparza carried a .22
caliber handgun which protruded from her purse, whereas appellant carried a .38 caliber
revolver. After stealing Voss’s Cadillac, appellant and Esparza drove to the Valero gas
station and entered the convenience store. Appellant was closing a cooler when he heard
three gunshots. He turned and saw Esparza standing in front of the counter, holding the
.22 caliber handgun. Appellant waited for Esparza as she stole items from behind the
counter.

      The complainant died from gunshot wounds. Police officers found two .22 caliber
casings on the floor of the convenience store. Appellant and Esparza were arrested the
next day as they were fleeing Houston in a Lexus. A .22 caliber handgun was found in
the Lexus on the floorboard under appellant’s seat. Appellant was charged with capital
murder for intentionally killing the complainant during the course of a robbery. The jury
found appellant guilty, and the trial court assessed the mandatory sentence of life
imprisonment without possibility of parole.




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                              II. EXTRANEOUS OFFENSE

      In his sole issue, appellant contends the trial court erred by admitting evidence of
an extraneous offense committed by appellant—specifically, that appellant shot another
man and stole his Lexus within twenty-four hours of the complainant’s murder.

      We review a trial court’s ruling on the admissibility of extraneous-offense
evidence for abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App.
2005). Under Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to
prove an individual’s character or to show action in conformity with that character. Tex.
R. Evid. 404(b). However, a trial court may admit extraneous-offense evidence for other
reasons, such as proof of identity or to rebut a defensive theory. See id.; De La Paz v.
State, 279 S.W.3d 336, 344–47 (Tex. Crim. App. 2009).

      During trial, the State relied primarily on the following question by defense
counsel as grounds for admission of the extraneous-offense evidence:

      [Defense Counsel:] And the reason [appellant is] here today, is it not Ms.
      Esparza, is because you’re the one who shot the store clerk and [appellant]
      didn’t want to leave you by yourself because he knew you were pregnant
      with his child?
      [Esparza:] No.

      The State argued extraneous-offense evidence was admissible to rebut appellant’s
defensive theory that Esparza fabricated her testimony and was the actual shooter.
Appellant responded that the foregoing question did not raise a defensive theory because
Esparza answered negatively. The trial court overruled appellant’s objection, explaining
that defense counsel did not merely ask Esparza if she was the shooter but directly
accused her of having been the shooter.

      The State presented extraneous-offense evidence through the following testimony
of Brent Baresh. On August 22, 2006, Baresh was staying at a motel in Houston when he
encountered appellant and Esparza.        Appellant solicited Baresh to pay money in
exchange for sexual activity with Esparza. Shortly thereafter, Baresh allowed Esparza


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into his room. Esparza and Baresh conversed until someone knocked on the door.
Baresh looked through the peephole and saw appellant holding Esparza’s purse. After
Baresh opened the door, appellant shot Baresh in the face with a .22 caliber handgun.1
Appellant stole Baresh’s wallet, briefcases, and Lexus. Appellant and Esparza acted in
concert and “[Esparza] was a full participant.”

        The trial court orally instructed the jury it could consider the extraneous-offense
evidence only if the jury believed beyond a reasonable doubt that appellant committed
the extraneous offense and only for purposes of motive, opportunity, plan, identity, or
absence of mistake or accident in connection with the underlying murder. The jury
charge contained a similar instruction.2

        Even assuming without deciding that the trial court abused its discretion by
admitting this extraneous-offense evidence during the State’s case-in-chief, any error was
cured when appellant testified that Esparza shot the complainant. See Daggett v. State,
187 S.W.3d 444, 453–54 (Tex. Crim. App. 2005) (“[I]f extraneous offense evidence is
improperly introduced during the State’s case-in-chief, any error may be cured by the
defendant’s subsequent testimony which ‘opens the door’ to rebuttal.”).                        Appellant
clearly raised an issue regarding identity of the shooter, “opening the door” to
extraneous-offense evidence to rebut his testimony. See Turner v. State, 924 S.W.2d 180,
182 (Tex. App.—Eastland 1996, pet. ref’d) (recognizing defendant’s theory that another
person committed the charged offense raised an issue regarding identity of the
perpetrator).




        1
          An HPD firearms expert testified that a bullet casing found in Baresh’s motel room was ejected
from the .22 caliber handgun recovered from the Lexus.
        2
         Appellant did not object to the trial court’s oral limiting instruction or jury-charge instruction
regarding consideration of the extraneous-offense evidence.

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      Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
judgment.




                                                /s/       Charles W. Seymore
                                                          Justice




Panel consists of Justices Seymore, Boyce, and Mirabal.3
Do Not Publish — Tex. R. App. P. 47.2(b).




      3
          Senior Justice Margaret Garner Mirabal sitting by assignment.

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