                               NO. 12-09-00218-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
LAZARUS LEE DAVIS,
APPELLANT                                        '   APPEAL FROM THE 241ST

V.                                               '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                              '   SMITH COUNTY, TEXAS
APPELLEE
                               MEMORANDUM OPINION
       Lazarus Lee Davis appeals his conviction for aggravated robbery. He raises three
issues on appeal. We affirm.

                                      BACKGROUND
       On January 17, 2009, Sallee Brown, a sixty-five year old female, stopped at a
convenience store for a snack. Shortly after departing the store, she missed her turn and
pulled into a parking lot to turn around. A red Jeep then pulled in behind her, blocking
Brown‟s car, and prevented her escape. Brown recognized one of the Jeep‟s occupants
from the convenience store. That person was later identified as Natalie Saur. Appellant
was sitting in the back seat of the Jeep. The driver of the Jeep, who was later identified
as Christopher Watson, exited the vehicle and demanded Brown‟s money. When Brown
refused, Watson retrieved what was later determined to be a BB gun from Saur, pointed it
at Brown, and again demanded her money. Brown then complied. Watson returned to
the Jeep and left the scene along with Appellant and Saur. Brown followed the Jeep for a
few miles, called 911, provided a description of the Jeep, and told the dispatcher the first
three numbers of the Jeep‟s license plate. Watson was eventually able to evade Brown.
       Later, Tyler Police Department Officer Luis Aparacio observed a vehicle
matching the description of the Jeep used in the robbery. After initiating his overhead
lights, a high speed chase ensued, during which Watson drove through residential
neighborhoods at high speeds without his lights in the dark of night. Watson, Saur, and
Appellant abandoned the vehicle and ran into the woods. Saur was apprehended, but
Watson and Appellant escaped together. Watson and Appellant used the proceeds of the
robbery to purchase food and pay a third party for a ride back to their homes in another
area of Tyler.1 Upon questioning by police, Saur identified Watson and Appellant as the
other occupants of the vehicle, who were later arrested and indicted for aggravated
robbery.
        Appellant pleaded not guilty. At trial, Appellant‟s defense was that he was
merely present during the course of the robbery, and that he played no role in its
commission. The jury found Appellant guilty of the offense of aggravated robbery as
alleged in the indictment and sentenced him to thirty-six years of imprisonment.
Appellant timely appealed.

            FAILURE TO PROVIDE NOTICE OF EXTRANEOUS OFFENSE EVIDENCE
        In his first issue, Appellant argues that, after he timely requested notice, the State
failed to provide reasonable notice of extraneous offenses that it intended to offer against
Appellant during its case-in-chief.
Standard of Review and Applicable Law
        We review claims challenging the admission of extraneous offenses for an abuse
of discretion and will affirm the trial court's decision if it is within the zone of reasonable
disagreement. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). An
extraneous offense is any act of misconduct, whether resulting in prosecution or not,
which is not shown in the charging instrument and which was shown to have been
committed by the accused. Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.—
Houston [1st Dist.] 1991, no pet.).
        If the defendant makes a timely request, the State must provide “reasonable notice
. . . in advance of trial” of its intent to introduce evidence of extraneous conduct. TEX. R.
EVID. 404(b). “Reasonable notice” is not defined in the rule, and therefore depends on
the facts and circumstances of each individual case. Scott v. State, 57 S.W.3d 476, 480

        1
           Watson‟s testimony was equivocal as to whether the proceeds of the robbery were used to
purchase food.


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(Tex. App.—Waco 2001, pet. ref‟d). What is clear, however, is that when proof of the
extraneous offenses is contained in the state‟s file, the state‟s reference to its open file
policy is not reasonable notice. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App.
1995).
         If an abuse of discretion is found because notice was unreasonable, a harm
analysis is required under Texas Rule of Appellate Procedure 44.2. Wallace v. State, 135
S.W.3d 114, 118 (Tex. App.—Tyler 2004, no pet.). An untimely notice is harmful if the
accused was surprised by the evidence. Hernandez v. State, 176 S.W.3d 821, 825-26
(Tex. Crim. App. 2005). It is also harmful if the lack of reasonable notice affected the
accused‟s ability to mount an adequate defense, that is, affected his ability to prepare
cross examination or present mitigating evidence.        McDonald, 179 S.W.3d at 579;
Wallace, 135 S.W.3d at 118-19.
Discussion
         First, the State argues that Appellant failed to preserve his challenge to the
sufficiency of the 404(b) notice because the State presented evidence of Appellant‟s
alleged extraneous offenses at trial without objection. Before the trial began, the State
reminded the court of its intention to offer evidence of extraneous offenses. The court
then heard the State‟s proffer of evidence as to the extraneous offenses, along with
Appellant‟s initial objections. As relevant to this appeal, the State intended to offer
evidence of a burglary of the Pulse Skate Shop on January 15, 2009, the robbery of an
older woman at the East Texas Medical Center (“ETMC”) on January 16, 2009, and the
theft of an iPod charger on January 17, 2009. These offenses were allegedly part of a
crime spree by Appellant, Watson, and to a lesser extent, Saur. Appellant initially had no
complaint as to evidence of the Pulse Skate Shop burglary, but voiced objection to
evidence of the ETMC robbery. The trial court continued the hearing until the following
morning.     When the hearing resumed, Appellant objected that he was provided
insufficient notice of the State‟s intent to offer evidence of the three extraneous offenses.
The trial court overruled his objection, concluding that the notice was timely and
reasonable and met the requirements of rule 404(b). We hold that Appellant‟s objection
was timely and specific. Therefore, Appellant properly preserved this issue. See TEX. R.
APP. P. 33.1(a).



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       Turning to the merits of Appellant‟s complaint, we first note that the State chose
not to introduce evidence of theft of the iPod charger. Therefore, although undisclosed,
Appellant cannot show that he was harmed by evidence of a theft not introduced against
him.
       Next, with respect to the Pulse Skate Shop burglary, the State‟s 404(b) notice
identified a burglary offense committed by Appellant “on or about the 17th day of
January, 2009, in cause number 241-0484-09, in Smith County, Texas, the defendant
committed the felony offense of Burglary of a Building.” The date in the State‟s 404(b)
notice incorrectly referred to the date of the Pulse Skate Shop burglary as January 17,
2009. That incident occurred on January 15, 2009. The offense in the instant case
occurred on January 17, 2009, two days after the Pulse Skate Shop burglary. Police
apprehended Appellant on January 17, 2009, and he remained in jail after that time,
unable to commit further burglaries. Moreover, the State‟s witness list disclosed the
identities of the skate shop owners with the words “Pulse Board Shop” in the address
section. Finally, defense counsel admitted he had notice that the State intended to offer
evidence related to that burglary. Specifically, defense counsel stated, “Judge, even
though [the 404(b) notice] has the [Pulse Skate Shop] burglary of a building in there --
that‟s my mistake -- there‟s nothing in there about the theft and the [ETMC] robbery
case, Judge.” Therefore, we hold that the State satisfied rule 404(b)‟s notice requirement
as to the Pulse Skate Shop burglary.
       As to the ETMC robbery, Appellant is correct that the State‟s 404(b) notice does
not expressly identify the offense in question. The State argues, however, that the
following disclosure in its 404(b) notice rectifies its failure to identify the ETMC
robbery: “[a]nything contained in the discovery materials provided now or in the future
with regard to any extraneous offenses, or bad acts which are mentioned or anything
noticed in open Court or contained in motions filed with the Court.”
       Irrespective of whether the State‟s notice violated rule 404(b), a question we do
not reach, we conclude that Appellant was not surprised, and therefore not harmed, by the
introduction of evidence relating to the ETMC robbery. Prior to Appellant‟s trial in the
instant case, the State produced transcripts of court proceedings against Watson from the
ETMC robbery case, which disclosed Appellant‟s role in that robbery and the potential



                                            4
witnesses against him.2 Moreover, the State‟s witness list in the instant case disclosed the
ETMC robbery victim‟s identity. Armed with this information, Appellant could not have
been surprised by the evidence. Appellant did not ask for a continuance or show how his
defense strategy might have differed. We do not condone the State‟s failure to expressly
list the ETMC robbery in its rule 404(b) notice. However, under the facts of this case, we
hold that Appellant was not harmed by it. See Hernandez, 176 S.W.3d at 825-26.
Appellant‟s first issue is overruled.

                RULE 403 CHALLENGE TO EXTRANEOUS OFFENSE EVIDENCE
         In his second issue, Appellant contends that the trial court abused its discretion by
admitting evidence of the ETMC robbery because the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice.
Standard of Review and Applicable Law
         The appellate court reviews the trial court‟s ruling on a rule 403 objection under
an abuse of discretion standard. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.
2005). An appellate court is not to reverse a trial court where its ruling was within the
zone of reasonable disagreement. Id. at 440. The “test for whether the trial court abused
its discretion is whether the action was arbitrary or unreasonable.” Id. at 439.
         Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID. 401.
Relevant evidence is generally admissible, while irrelevant evidence is inadmissible.
TEX. R. EVID. 402.
         Rule 404 provides that “evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show that he acted in conformity therewith.”
TEX. R. EVID. 404(b). Evidence of “other crimes, wrongs or acts” may be admissible if it
has relevance apart from its tendency “to prove the character of a person in order to show
action in conformity therewith.” TEX. R. EVID. 404(b).


         2
           Although the timing is not entirely clear from the record, it appears that the transcripts were
disclosed well in advance of Appellant‟s trial date. Specifically, the trial court stated that the ETMC
robbery transcripts “were provided to Defense counsel . . . [at] some date well prior to trial.” Defense
counsel replied that “[y]eah, that is correct” and that “I did get copies of transcripts Volume 1 and 2” of the
ETMC robbery case against Watson.


                                                      5
       The permissible “purposes” for which evidence of “crimes, wrongs, or acts” may
be introduced include “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” TEX. R. EVID. 404(b). Extraneous offense
evidence that logically serves any of these purposes is “relevant” beyond its tendency “to
prove the character of a person in order to show action in conformity therewith,” but may
be excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice. . . .” TEX. R. EVID. 403, 404(b). A proper rule 403 analysis includes, but is not
limited to, four factors: (1) the probative value of the evidence, (2) the potential to
impress the jury in some irrational yet indelible way, (3) the time needed to develop the
evidence, and (4) the proponent‟s need for the evidence. Mechler, 153 S.W.2d at 440.
Discussion
       Appellant does not appear to challenge the admissibility of the evidence under
rule 404(b). Rather, Appellant argues that the testimony and other evidence related to the
ETMC robbery should have been ruled inadmissible by the trial court under rule 403
because any probative value that the evidence has is substantially outweighed by the
danger of unfair prejudice.
       Here, the ETMC robbery was committed the evening prior to the robbery of
Brown in the instant case. Appellant and Watson acted together in both robberies. Both
robberies were committed against lone, older women using surprise, speed, and strength
through force or the threat of force. Both robberies were committed while using the same
vehicle, a red Jeep, as a means of escape. In addition to the presence of Saur in the
instant case, the primary difference between the robberies is that Appellant was allegedly
the primary actor in the ETMC robbery, while Watson was the primary actor in the
robbery of Brown. Therefore, the probative value of the evidence is great, because it
demonstrates that Appellant and Watson acted together in a continuing criminal
enterprise, the robbery of older women.           Consequently, this evidence rebutted
Appellant‟s defensive theory that he was not a party to the offense in the instant case, but
was merely present in the Jeep while the robbery transpired.
       Although there was the potential that the jury might have been confused by
testimony of these similar crimes, the State and defense counsel carefully separated the
offenses during the questioning of the witnesses testifying about the ETMC robbery.



                                             6
This evidence did not likely impress the jury in an irrational or indelible way because the
evidence actually served to explain Appellant‟s role in this crime by demonstrating the
pattern of Appellant and Watson‟s criminal conduct. This evidence was important to the
State‟s case, because Appellant‟s theory was that he was merely present in the Jeep, and
was unaware that a robbery was about to occur. Defense counsel pursued this theory
vigorously throughout the trial and in jury argument. Upon a careful review of the
record, we conclude that the trial court did not abuse its discretion in overruling
Appellant‟s rule 403 objection. Appellant‟s second issue is overruled.

                          FACTUAL SUFFICIENCY OF THE EVIDENCE
       In his third issue, Appellant argues that the evidence is factually insufficient to
support his conviction.
Standard of Review
       In conducting a factual sufficiency review, we look at the evidence in a neutral
light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). A verdict will be
set aside if the evidence supporting the conviction, although legally sufficient, is so weak
that the jury‟s determination is clearly wrong and manifestly unjust, or if there is some
objective basis in the record that shows the great weight and preponderance of the
evidence contradicts the jury‟s verdict. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim.
App. 2007); Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006). A
clearly wrong and unjust verdict occurs where the jury‟s finding is manifestly unjust,
shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.
       Although we are authorized to disagree with the jury‟s determination, even if
probative evidence exists that supports the verdict, our evaluation should not substantially
intrude upon the jury‟s role as the sole judge of the weight and credibility of witness
testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Unless we
conclude that it is necessary to correct manifest injustice, we must give due deference to
the jury‟s determinations. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). It
is not enough that we might harbor a subjective level of reasonable doubt to overturn a
conviction that is founded on legally sufficient evidence. See Watson, 204 S.W.3d at
417.



                                             7
Applicable Law
       A person commits the offense of robbery if, “in the course of committing theft ...
he intentionally, knowingly, or recklessly causes bodily injury to another” or
“intentionally or knowingly threatens or places another in fear of imminent bodily injury
or death.” TEX. PENAL CODE ANN. § 29.02(a)(1)-(2) (Vernon 2003). A person commits
the offense of aggravated robbery if, in the course of committing a robbery, he uses or
exhibits a deadly weapon, or causes bodily injury to, or threatens or places a person 65
years of age or older in fear of imminent bodily injury or death. Id. § 29.03(a)(2)-(3)
(Vernon 2003).
       An individual is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or both. TEX. PENAL CODE ANN. § 7.01(a) (Vernon 2003). A party may be
criminally responsible as a party in several ways. See id. §§ 7.01-.02 (Vernon 2003). As
pertinent here, a person is criminally responsible for an offense committed by another if,
acting with intent to promote or assist the commission of the offense, the person solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense. Id.
§ 7.02(a)(2). When a party is not the primary actor, the State must prove conduct
constituting an offense plus an act by the defendant done with the intent to promote or
assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); Miller v.
State, 83 S.W.3d 308, 313 (Tex. App.—Austin 2002, pet. ref'd). Although a factor to be
considered, mere presence alone is not sufficient to support a conviction under the law of
parties. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979).
       “Evidence that a person is a party to an offense may be entirely circumstantial,
but the evidence must show that the parties were acting together to accomplish their
common purpose.” Hayes v. State, 265 S.W.3d 673, 681 (Tex. App.—Houston [1st
Dist.] 2008, pet. ref‟d). “Any agreement to accomplish a common purpose must have
been made before or contemporaneously with the criminal event, but in determining
participation in an offense, the court may examine events that occurred before, during,
and after the offense was committed.” Id. at 681-82. Finally, while flight alone will not
support a guilty verdict, evidence of flight from the scene of a crime is a circumstance




                                            8
from which an inference of guilt may be drawn. Valdez v. State, 623 S.W.2d 317, 321
(Tex. Crim. App. 1979).
Discussion
       Appellant argues that the only evidence to connect him to the offense is that (1)
“Appellant laughed when Watson drove off to chase Brown,” (2) “Appellant ducked
down while Watson and Saur committed the offense,” (3) “Appellant told Watson he was
„stupid‟ after he committed the offense,” and (4) “Appellant ran when Watson wrecked
the Jeep.” Consequently, he argues he was merely present during the offense and is not
criminally responsible under the law of parties. Therefore, he concludes the evidence is
factually insufficient to support the verdict.
       However, the evidence reveals that Saur told Watson she saw Brown in the
convenience store and that Brown had a large amount of money. Watson then told
Appellant to enter the Jeep so that they could follow Brown. Watson gave Appellant a
“look,” immediately followed by a “laugh” from Appellant, which Watson implicitly
took to mean that Appellant knew that a robbery would likely take place. Saur, riding
along for her first robbery, testified that she knew immediately that they would soon rob
Brown, and that Appellant likely reached the same conclusion. Less than a minute later,
Brown entered a parking lot and Watson blocked her escape with the Jeep. Appellant
then concealed his presence in the Jeep by “ducking” in the seat. This act was an attempt
to conceal how many people were in the car so as to evade identification by the police.
       Moreover, right after the robbery, all three individuals were actively seeking
suitable license plates to switch with those on the Jeep, as they had in the prior ETMC
robbery. This plan, in which Appellant played a part, also assisted in their escape.
Watson testified that during the high speed chase, Appellant encouraged their escape
because he did not want to get “locked back up.” Once they abandoned the vehicle,
Appellant and Watson fled together. During their escape, Watson and Appellant heard
what they believed to be a gunshot resulting in the death of Saur. Although this bore no
relationship to reality, Watson cried. In an effort to calm Watson and to help motivate
him to assist in their joint escape, Appellant told Watson “in five minutes or an hour, if
I‟m not at my girl‟s house, I lost my girl, too.” Finally, they used the proceeds of the
robbery to buy food and to pay for a ride back to their homes.



                                                 9
         From this evidence, the jury was entitled to find that Appellant knew of the
robbery plan, took an active part in its commission, and actively participated in their
escape. This evidence, in conjunction with the extraneous offenses, such as the very
similar ETMC robbery, demonstrated that Appellant and Watson were partners in a
criminal enterprise designed to rob older women, making it more likely that Appellant
participated in the robbery against Brown. Therefore, the evidence is factually sufficient
to support the verdict. Appellant‟s third issue is overruled.
                                               DISPOSITION
         We affirm the judgment of the trial court.



                                                                SAM GRIFFITH

                                                                    Justice
Opinion delivered August 25, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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