                                                                                          ACCEPTED
                                                                                      01-14-00902-CR
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 6/30/2015 1:55:26 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK




                        No. 01-14-00902-CR
                                                                   FILED IN
                                                            1st COURT OF APPEALS
                                 In the                         HOUSTON, TEXAS
                          Court of Appeals                  6/30/2015 1:55:26 PM
                                For the                     CHRISTOPHER A. PRINE
                                                                    Clerk
                        First District of Texas
                              At Houston
                        ♦
                            No. 1399343
                      In the 230th District Court
                       Of Harris County, Texas
                        ♦
                      KENNETH ALLEN ROSS
                           Appellant
                                  v.
                       THE STATE OF TEXAS
                             Appellee
                        ♦
                       State’s Appellate Brief
                        ♦



Clinton A. Morgan                                 Devon Anderson
Assistant District Attorney                       District Attorney
Harris County, Texas                              Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net                       Sarah Roberts
                                                  Lisa Calligan
1201 Franklin St., Suite 600
                                                  Assistant District Attorneys
Houston, Texas 77006
                                                  Harris County, Texas
Telephone: 713.755.5826




                   Oral Argument Not Requested
                Statement Regarding Oral Argument

      The appellant requested oral argument, though he gave no

particular reason why. The State believes that the briefs in this case

adequately apprise this Court of the issues and the law, and any

marginal benefit from oral argument does not justify the considerable

amount of time that preparation for oral argument requires of the

parties and the Court. The State does not request oral argument.




                                   i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Sarah Roberts & Lisa Calligan
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Kenneth Allen Ross

Counsel for the Appellant:

      Danny Easterling
           — Counsel at trial

      Mandy Miller
          — Counsel on appeal

Trial Judges:

      Brad Hart
            Presiding judges




                                      ii
                                                 Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 3
Reply to Point One ................................................................................ 4
   Strong modus-operandi evidence from two other robberies
   committed by the appellant, combined with a tentative eyewitness
   identification, are sufficient to allow a rational factfinder to find,
   beyond a reasonable doubt, that the appellant committed a third
   robbery that was introduced as an extraneous offense in the
   punishment phase. ...................................................................................................... 4
      I.        Trial Proceedings ............................................................................................ 4
           A.      The June 21st Robbery .............................................................................. 4
           B.      The Appellant’s Request to Strike ....................................................... 6
           C.      The June 3rd Robbery ................................................................................ 8
      II. Standard of Review: A trial court’s decision to admit evidence
      of an extraneous offense in the punishment phase is reviewed only
      for an abuse of discretion. .................................................................................... 9
      III. Argument ........................................................................................................ 10
           A. The evidence at trial was sufficient to show, beyond a
           reasonable doubt, that the appellant committed the June 21st
           robbery.................................................................................................................. 10
           B. Even if the trial court erred, the repeated instructions to the
           jury to disregard any extraneous offense not proven beyond a
           reasonable doubt cured the error. ............................................................ 13
Conclusion .......................................................................................... 16


                                                                 iii
Certificate of Compliance and Service ........................................... 17
Appendix:State’s Exhibits 28 & 57




                                         iv
                                                Index of Authorities



Cases
Apolinar v. State
  106 S.W.3d 407 (Tex. App.—
  Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App.
  2005) .............................................................................................................................. 14
Colburn v. State
  966 S.W.2d 511 (Tex. Crim. App. 1998) ........................................................... 14
Martin v. State
 173 S.W.3d 463 (Tex. Crim. App. 2005) ........................................................... 11
Page v. State
  213 S.W.3d 332 (Tex. Crim. App. 2006) ........................................................... 10
Thompson v. State
  4 S.W.3d 884 (Tex. App.—
  Houston [1st Dist.] 1999, pet. ref’d) .................................................................... 7


Statutes
TEX. CODE CRIM. PROC. art. 37.07................................................................................. 10


Rules
TEX. R. APP. P. 44.2 ........................................................................................................... 14




                                                                   v
                          Statement of the Case

      The appellant was indicted for aggravated robbery. (CR 25). The

indictment alleged two prior felony convictions, with one of the felonies

having been committed after the conviction for the other became final.

(CR 25). A jury found him guilty as charged. (CR 98, 113). The State

abandoned one of the enhancement allegations; the jury found the other

allegation true and assessed punishment at forty years’ confinement and

a $5,000 fine. (CR 111). The appellant filed a timely notice of appeal and

the trial court certified his right of appeal. (CR 116, 118).


                            Statement of Facts

      On August 26, 2013, near closing time at a Family Dollar store in

west Houston, a man in a hoodie, a black cap, and black-framed glasses

approached a store employee, Jaymil Johnson, and asked where the air

fresheners were. (3 RR 23, 112; 4 RR 19). The man walked away from

Johnson, but rather than buying air fresheners he lingered in the store

past closing time. (3 RR 24). When Johnson next saw him, the man

brandished a pistol and instructed Johnson to “be cool” and not to make

any noise. (3 RR 24-25). The man walked Johnson to another aisle

where the other two store employees were, and then took all three

                                      1
employees into the back of the store and had them set their cell phones

on a box. (3 RR 26-27; 4 RR 24-25).

      The man forced two of the employees into a bathroom, but

instructed the store manager, Maheshkumar Desai, to take him to the

store’s safe. (3 RR 101-04). Desai did as instructed. (3 RR 104-05). After

Desai entered the combination, though, he informed the man that the

safe had a time delay and would not open for several minutes after the

combination was entered. (3 RR 105). The man then began talking to

someone on his cell phone, advising that the safe would take 10-15

minutes to open. (3 RR 106).

      The man walked Desai to the back of the store, where he noticed

that one of the employees’ cell phones was no longer sitting on the box.

(3 RR 106). The man asked which of them had called the police, but no

one admitted to having done so. (3 RR 107). The man then took Desai

back to the front of the store where he had him empty the cash registers

into a plastic bag. (3 RR 107). The bag also contained some air

fresheners. (3 RR 107). The man forced the employees back into the

bathroom, and from there they heard the store alarm sound from the

opening of the emergency exit in the back of the store. (3 RR 108).



                                      2
      Houston Police Officer James Swank was dispatched to a report of

a robbery in progress at the Family Dollar. (3 RR 88-89). He was the

second officer to arrive on the scene; when he learned that the first

officer was in the front of the store, Swank went to the back. (3 RR 94).

He observed a man with a black hat and grey hoodie running away from

the store. (3 RR 96, 100). When Swank shone his spotlight on the man,

he dropped a cell phone and a plastic Family Dollar bag and immediately

sat down. (3 RR 98, 211). The plastic bag contained cash, rolls of coins,

and air fresheners. (3 RR 256-57). Next to the bag was a black

semiautomatic pistol. (3 RR 257). The man was identified as the

appellant. (3 RR 266). The appellant was taken back to the store and

Johnson identified him as the robber. (3 RR 274).


                      Summary of the Argument

      The appellant raises no challenges to his conviction. His sole point

relates to evidence of an extraneous robbery that was admitted during

the punishment phase. He argues that the evidence was inadmissible

because the State did not prove the offense beyond a reasonable doubt.

The State believes that the similarities between that robbery, another

extraneous robbery, and the charged offense, combined with a tentative


                                    3
eyewitness identification from the complained-of robbery is sufficient to

allow a finding, beyond a reasonable doubt, that the appellant

committed the complained-of robbery.


                             Reply to Point One


Strong modus-operandi evidence from two other robberies
committed by the appellant, combined with a tentative eyewitness
identification, are sufficient to allow a rational factfinder to find,
beyond a reasonable doubt, that the appellant committed a third
robbery that was introduced as an extraneous offense in the
punishment phase.

    I.        Trial Proceedings

              A. The June 21st Robbery

         In the punishment phase, the State called two witnesses to testify

about a robbery that occurred on June 21, 2013, at a Family Dollar store

in southwest Houston. Kierra Pipkin was a cashier working the closing

shift that night. (7 RR 34). The store closed at 10:00 pm, but the

employees had locked the doors early because no one was in the store.

(7 RR 36). At 9:40, a man beat on the doors until Pipkin let him in. (7 RR

36). He said he needed worm pills for his dog, but when Pipkin said they

did not sell those he asked for the baby wipes. (7 RR 36). Pipkin directed

the man to the baby wipes and then walked away to resume cleaning up

the store. (7 RR 36).
                                      4
      Sometime later, the man approached Pipkin and brandished a

revolver. (7 RR 38-39). The man directed Pipkin and the store’s assistant

manager, Shondria Laymond, to a different aisle and had them lie on the

ground. (7 RR 40). The man asked who the manager was, and when

Laymond spoke up he forced her to go open the door and let in a second

man. (7 RR 40-41). This second man was taller; he wore a dark cap with

a white symbol on it and glasses. (7 RR 41-42, 85-86; State’s Ex. 57). The

second man was also talking on the phone to someone named “Frank.”

(7 RR 43). After he entered the store, the second man brandished a

semiautomatic pistol. (7 RR 44). It was apparent that the second man

was in charge. (7 RR 45).

      The second man asked Laymond what the code to the safe was,

but Laymond advised that the safe had a timer on it. (7 RR 46). Laymond

entered the code into the safe, and while they waited on it to open the

second man forced her to empty the cash registers into a plastic store

bag. (7 RR 71-73). Once the safe opened, he made Laymond empty it

into a store bag as well. (7 RR 73). The man also made her put several

boxes of cigarettes in the bags. (7 RR 72-73).

      The robbers made the employees lay on the ground again, and

then asked where the back door was. (7 RR 73). The second man told
                                    5
whoever he was talking with on the phone to drive around the back of

the store and pick them up. (7 RR 73-74). However, the person on the

other end of the phone advised that there were people behind the store,

so the robbers left through the front door. (7 RR 74-75). Before leaving,

they advised the employees to wait ten minutes before calling the police,

or else they would return and shoot them. (7 RR 75).

      After the robbery, Laymond was shown a photo lineup; she said

that she was 70% sure that the second man in the robbery was the

appellant. (7 RR 85-86, 96, 111). At trial, the State introduced security

footage of the robbery, as well as a few screenshots taken from that

video. (State’s Exs. 57, 59).


             B. The Appellant’s Request to Strike

      After the State admitted all of its evidence regarding the June 21st

robbery, defense counsel approached the trial court and asked for the

jury to be instructed to disregard it. (7 RR 114-15). The appellant

argued that the State’s evidence was not sufficient to show, beyond a

reasonable doubt, that the appellant committed that robbery, and

therefore it was inadmissible in the punishment phase. (7 RR 114-15);

see Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st Dist.]


                                    6
1999, pet. ref’d) (“The trial court must first determine that the evidence

is relevant and that the jury could reasonably find beyond a reasonable

doubt that the defendant committed the extraneous offense.”).

       The State replied that, combined with Laymond’s 70%

identification, the similarities between the charged offense and the June

21st robbery would allow the jury to find that the appellant committed

both crimes. First, the State noted, the robber in both cases seemed to

be wearing a “similar hat” 1 in both robberies. (7 RR 115-16). Moreover,

the methods used in both robberies were strikingly similar:

       [T]hat it is the Family Dollar, that it was closing time, that he
       was on the cell phone. He knew about the safe, asking for
       the manager, not touching anything. And … asking them to
       go to the back door. Wanting to leave out of the back door,
       but they just couldn’t in this specific situation. And the fact
       that he was on the phone with another person apparently
       outside the store.

(7 RR 116-17).




1 The cap recovered from the scene of the charged offense was admitted into
evidence as State’s Exhibit 28, and it is currently in the custody of the Harris County
District Clerk. The State’s appellate counsel went to the clerk’s office to view the cap.
In an appendix to this brief, the State’s appellate counsel has included a photograph
of the cap placed, for comparison purposes, next to screenshots of the second robber
in the June 21st robbery that were admitted as part of State’s Exhibit 57. The
distinctive kangaroo logo on the cap appears very similar to the logo on the cap
worn by the robber. The similarity is even stronger when the cap is compared to the
color surveillance video in State’s Exhibit 59.
                                           7
      The trial court was initially skeptical of the State’s argument and

signaled its intention to grant the appellant’s motion. (7 RR 119).

However, after taking a break the trial court announced that it would

deny the appellant’s motion but would verbally instruct the jury that it

could only consider evidence of the extraneous robbery if it the evidence

proved, beyond a reasonable doubt, that the appellant committed it. (7

RR 121-22; see CR 106 (providing same instruction in jury chare)).


            C. The June 3rd Robbery

      The next witness was Crespin Guerrero, who used to work at a

Dollar Tree in Webster. (7 RR 125). On June 3, 2013, Guerrero was the

assistant manager working the night shift. (7 RR 127). After locking the

store at closing time, Guerrero walked outside the store to put

something in his truck. (7 RR 127-28). He heard something behind him,

and when he turned around he saw a man holding a gun; the gunman

advised Guerrero not to run or he would shoot. (7 RR 128).

      The gunman forced Guerrero to unlock the store and the two of

them went inside, along with a third person who was with the gunman

but who Guerrero did not get a good look at. (7 RR 129-30). Once in the

store, the gunman forced Guerrero and the other Dollar Tree employee


                                   8
to go to the store’s office and open the safe. (7 RR 132). Guerrero

complied; this safe did not have a timer on it so he was able to open it

right away. (7 RR 133). The gunman made Guerrero pick up the money

and put it into a backpack. (7 RR 133-34). After that, the gunman made

Guerrero and the other employee get on the ground, and he sat their cell

phones outside of the office. (7 RR 134). The robbers then left. (7 RR

135).

        Guerrero later identified the appellant as the gunman. (7 RR 142).

During the robbery, the appellant was wearing a gray hoodie, a black

cap, and glasses. (7 RR 130). Guerrero said that State’s Exhibit 28, the

cap recovered from the scene of the charged offense, was similar to the

hat the appellant wore during the robbery, and the gun recovered from

the scene of the charged offense was similar to the gun the appellant

used. (7 RR 140-41).


   II.     Standard of Review: A trial court’s decision to admit
           evidence of an extraneous offense in the punishment
           phase is reviewed only for an abuse of discretion.

        In the punishment phase of a trial, the State may offer “evidence of

an extraneous crime or bad act that is shown beyond a reasonable doubt

by evidence to have been committed by the defendant or for which he


                                      9
could be held criminally responsible …” TEX. CODE CRIM. PROC. art.

37.07 § 3(a). Appellate courts do not review the evidence of an

extraneous offense for sufficiency; rather, the question on appeal is

whether the trial court abused its discretion in admitting the evidence.

Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d). Though the State can find no case explicitly stating as

much, under this standard of review the relevant question on appeal is:

“Did the trial court abuse its discretion in determining that the evidence

was sufficient?”


   III.   Argument

            A. The evidence at trial was sufficient to show, beyond a
               reasonable doubt, that the appellant committed the
               June 21st robbery.

      The State’s argument (at trial and on appeal) involves applying the

“modus operandi” doctrine in an uncommon way. Typically, the way that

modus operandi arises is that the State will offer evidence of extraneous

offenses that were committed in distinctive ways in order to prove that

it was the defendant who committed the charged offense. See, e.g., Page

v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (discussing use of

extraneous offenses to prove identity). Here, however, because it is the


                                   10
sufficiency of the evidence to prove the extraneous offense that is at

issue, the State’s argument uses the charged offense to prove identity. In

either case, the relevant question is whether the crimes are sufficiently

distinctive as to allow a conclusion that whoever committed one

committed the others. See Martin v. State, 173 S.W.3d 463, 468 (Tex.

Crim. App. 2005). The State believes that the similarities between the

June 21st robbery and the other two robberies, combined with

Laymond’s “70%” identification, support the trial court’s determination

that a rational factfinder could have concluded that the appellant

committed the June 21st robbery. See Davis v. State, 180 S.W.3d 277, 285

(Tex. App.—Texarkana 2005, no pet.) (considering modus operandi

evidence as part of sufficiency analysis).

      The similarities between the robberies are striking:

   • The three robberies occurred within a three-month period,
     making it possible they were all committed by the same people.
     All three occurred within Harris County.

   • All three were of the same type of store: Two Family Dollar Stores
     and a Dollar General.

   • All three robberies occurred at or near closing time.

   • All three robberies involved forcing the store manager to open the
     store’s safe and place the money in a bag. In none of the robberies
     did the robber himself touch the safe or the money.

                                    11
  • In all three robberies the relevant robber was described in similar
    terms: A black man around or slightly shorter than six feet tall
    with a large build wearing a dark cap and glasses. This robber was
    always described as wielding a semiautomatic pistol.

  • In two of the robberies (June 21st and August 26th) the relevant
    robber was on a cell phone during the robbery communicating
    with the presumed getaway driver.

  • In two of the robberies (June 3rd and August 26th) the robber made
    the victims give him their cell phones for a period of time, but he
    did not steal them.

  • In two of the robberies (June 21st and August 26th) the robber took
    seemingly random items — air fresheners in one instance, and
    cigarettes and baby wipes in the other.

  • In two of the robberies (June 3rd and June 21st) there was an
    accomplice present who was shorter than the relevant robber and
    who was taking commands from the relevant robber.

  • In the August 26th robbery the robber was described as wearing
    glasses with black frames. Though it is not apparent in the black-
    and-white screenshots of State’s Exhibit 57, in the color
    surveillance footage of the June 21st robbery (State’s Exhibit 59),
    the relevant robber clearly is wearing glasses with black frames.

  • Additionally, comparing the color footage on State’s Exhibit 59 to
    State’s Exhibit 28 (the cap) shows that the relevant robber in the
    June 21st robbery wore a cap that was identical to the cap
    recovered from the August 26th robbery. Specifically, on the
    camera angle looking at the door, where the footage is
    timestamped 21:49:17 and 21:49:18, the shape of a kangaroo, the
    same as is on State’s Exhibit 28, is plainly visible on the robber’s
    cap. (See also Appendix).

     In sum, the State’s evidence showed that the appellant had a

penchant for robbing a certain type of store in a certain way while
                                  12
wearing a certain type of attire. The witnesses to the June 21st robbery

described a man similar to the appellant committing a robbery at a

similar store as those the appellant like to rob in a manner similar to

how the appellant committed his robberies. One of the witnesses to the

June 21st robbery (who was not privy to the details of the other

robberies) picked out the appellant from a photo lineup and said she

was “70%” sure that he was one of the robbers. From the combined

logical force of these facts, the trial court was, at least, within the zone of

reasonable disagreement to conclude that a rational factfinder could

have found the appellant guilty of the June 21st robbery beyond a

reasonable doubt. Thus the trial court did not abuse its discretion in

declining to instruct the jury to disregard the evidence of that robbery.


             B. Even if the trial court erred, the repeated
                instructions to the jury to disregard any extraneous
                offense not proven beyond a reasonable doubt cured
                the error.

      The erroneous admission of an extraneous offense in the

punishment phase of a trial is subject to the non-constitutional harm

test found in Rule of Appellate Procedure 44.2(b) and should not result

in reversal unless it had a substantial or injurious effect on the jury’s

verdict. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—Houston [1st

                                      13
Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 2005); Roethel v.

State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.); see TEX. R.

APP. P. 44.2(b).

      The jury in this case was twice instructed that it was not to

consider the evidence of extraneous offenses unless it believed, beyond

a reasonable doubt, that the appellant was criminally responsible for

them. (7 RR 121-22; CR 106). One of these instructions came

immediately after the State concluded its evidence of the June 21st

robbery, which should have made the point abundantly clear to the jury.

      Appellate courts presume that juries follow the instructions as

given. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). That

presumption is rebuttable, but there is no evidence in this case

suggesting that the jury disregarded the instructions. Indeed,

disregarding the instructions in this case would involve the jury

increasing the appellant’s sentence for an offense it did not believe he

committed, which, even without an instruction, would be passingly

strange behavior.

      The State’s punishment evidence, even excluding the June 21st

robbery, was strong enough to warrant the appellant’s punishment: The

evidence for the June 3rd robbery was quite strong, and the State
                                   14
admitted evidence of numerous prior convictions, including one for a

robbery. (7 RR 202-04 (prosecutor summarizing prior convictions);

State’s Exs. 40-42; 45-56). Given the general nature of a punishment

verdict, the adequate evidence showing that the appellant deserved a

harsh punishment, and, most importantly, the trial court’s repeated

instructions to the jury not to use evidence of the June 21st robbery

unless it believed, beyond a reasonable doubt, that the appellant was

one of the robbers, there is no reason to believe that the June 21st

robbery had a substantial effect on the jury’s verdict if they did not

believe, beyond a reasonable doubt, that the appellant was one of the

robbers. Accordingly, any error by the trial court does not warrant

reversal.




                                 15
                              Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24071454




                                   16
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 3,320 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Mandy Miller
      mandy@mandymillerlegal.com

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454


Date: June 30, 2015




                                     17
      Appendix:

State’s Exhibits 28 & 57
