Affirmed and Memorandum Opinion filed December 15, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00988-CR

                          JOSE ALDAPE, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1361921

                      MEMORANDUM OPINION

      This is an appeal from a conviction for robbery. In a single issue, appellant
argues that the trial court abused its discretion by admitting evidence of two
extraneous offenses. Appellant does not dispute that the challenged evidence has
relevance apart from character conformity, as required by Rule 404(b). However,
citing Rule 403, appellant argues that the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. After balancing the
appropriate interests, we conclude that the trial court did not abuse its discretion by
admitting the evidence. We therefore affirm the trial court’s judgment.

                                 BACKGROUND

      The complainant ran a small business of buying and reselling used items.
One day, appellant came to the complainant’s business and noticed several boxes
of specialty hoses commonly used in sandblasting. The hoses appeared to be new
and valuable. The complainant explained that the hoses were donated to him by a
company that needed to empty its warehouse. Appellant expressed an interest in
the hoses, saying that he knew of a third party who may want to buy them. Because
the complainant had a prior business relationship with appellant, the complainant
allowed appellant to take a sample of the hoses, offering to share in the earnings if
a buyer could be found.

      Later that day, appellant contacted the complainant, claiming that he had
found a buyer for the hoses. Appellant said that he would meet the complainant at
the complainant’s house that evening to discuss the terms of the deal.

      When the complainant arrived at home, appellant was already there, waiting
outside next to a large white truck. Appellant was dressed in his normal attire, but
as the complainant approached him, appellant unbuttoned his top shirt and revealed
an undershirt that identified him as a federal agent. Appellant told the complainant
that the hoses were stolen and that he was in serious trouble. Appellant exhibited a
firearm and instructed the complainant to get inside the truck. Both men climbed
into the backseat. Another man, never identified, drove the truck away.

      Appellant told the complainant that he wanted to negotiate. Specifically,
appellant said that he would release the complainant and spare the complainant a
trip to jail if the complainant paid him $10,000. The complainant did not believe


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that appellant was a federal agent, but the complainant feared that if he did not
cooperate, then appellant might beat or kill him. The complainant said that he did
not have $10,000, but he offered to get $1,000 from a relative in exchange for his
release. Appellant agreed to those terms. The men drove the complainant to his
relative, obtained the cash, and then dropped off the complainant several blocks
from his house, warning him not to contact the police. The complainant reported
the incident to police the very next day after he received harassing phone calls
from appellant. The police tracked down appellant sometime later, arresting him in
the same truck that was used in the robbery.

      During opening statements at appellant’s trial, the prosecutor portrayed
appellant as a “shakedown artist” who had targeted the complainant because the
complainant was an undocumented immigrant. The prosecutor argued that
appellant had perceived the complainant as “somebody who wouldn’t go to the
police” for fear of being deported.

      Defense counsel presented a different picture during his opening statement.
Counsel argued, “This case isn’t about a shakedown. It’s about the [complainant]
trying to get the upper hand on [appellant] over some sand blasting equipment.”
Counsel did not expressly accuse the complainant of “fabricating” his story, but his
questions throughout the trial suggested that the complainant had a motive to lie.
For example, counsel asked one witness whether the complainant, in exchange for
his testimony, was being “rewarded” with a special type of visa that would allow
him to lawfully stay in this country. Counsel also questioned whether the
complainant had paid appellant to dispose of the hoses because the complainant
knew that the hoses were stolen.

      In a hearing outside the presence of the jury, the trial court was asked to
consider whether the defense had opened the door for the introduction of evidence

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of extraneous offenses. Citing the defense’s opening statements and suggestive
questioning, the prosecutor argued that evidence of two extraneous offenses should
be admitted to rebut the defense’s theory that the complainant had fabricated his
story. The trial court heard a proffer of the rebuttal evidence and ruled that it was
admissible.

      Before the rebuttal evidence was presented, the trial court gave the jury a
limiting instruction, which stated as follows:

      You are instructed that if there is any evidence presented before you
      in this case regarding defendant’s committing an alleged offense or
      offenses other than the offense alleged against him in the indictment
      in this case, you cannot consider such evidence for any purpose unless
      you find and believe beyond a reasonable doubt that the defendant
      committed such other offense or offenses, if any, and even then, you
      may only consider the same in determining the motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake or
      accident of the defendant, if any, in connection with the offense, if
      any, alleged against him in the indictment, and for no other purpose.

      The rebuttal evidence was sponsored primarily by two witnesses, both from
the Hispanic community, who claimed that they were exploited by appellant in a
pattern similar to the kind experienced by the complainant. One of the witnesses,
A.M., testified that he was selling used clothing in a market when he was
approached by appellant. According to A.M., appellant displayed a badge and
claimed that he was a federal agent investigating stolen clothing. A.M. told
appellant that he had all of the permits and documentation required to legally sell
his merchandise. Appellant escorted A.M. to a truck under the pretense of
examining A.M.’s paperwork. The truck was the same make and model as the
truck involved in the charged offense. Appellant and A.M. sat in the backseat,
while another man sat in the driver’s seat. At one point, appellant instructed A.M.
to empty his pockets. Believing that appellant was an actual law enforcement

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officer, A.M. surrendered his wallet, watch, cellphone, and money. The incident
happened three days before the events in the charged offense, and when appellant
was eventually apprehended, A.M.’s identification was found in the truck where
appellant had been a passenger.

      The other witness, A.H., testified that he was approached by appellant
approximately three weeks before the events in the charged offense. A.H. said that
appellant came to him in the parking lot of a nightclub, searching for a gang
member. Appellant displayed what appeared to be a police badge. When A.H. said
that he did not recognize the name of the gang member, appellant asked A.H. to
come to his truck to see a picture of the gang member. The truck was the same
make and model as the truck involved in the other incidents described, and as with
those incidents, there was another man in the driver’s seat who always remained in
the vehicle. When A.H. approached the truck, appellant quickly twisted A.H.’s
arm, handcuffed him, and said that A.H. was the person whom he had been looking
for all along. Appellant put A.H. into the backseat of the truck and instructed the
driver to head to “the station.” A.H. did not believe that appellant was a police
officer because, during the drive, appellant asked A.H. for money and threatened to
kill A.H.’s family. A.H. offered appellant the money in his pocket, which
amounted to roughly $500. Appellant took the money as well as a handgun that
A.H. had on his person, then dropped off A.H. on the side of the road. When
appellant was later apprehended, a handgun magazine that matched the type of
handgun taken from A.H. was found in the truck.

                                   ANALYSIS

      Citing Rule 403 of the Texas Rules of Evidence, appellant argues that the
evidence of extraneous offenses should have been excluded because its probative
value was substantially outweighed by the danger of unfair prejudice. A ruling on

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the balance between probative value and the danger of unfair prejudice is a
question left to the trial court’s sound discretion. See De La Paz v. State, 279
S.W.3d 336, 343 (Tex. Crim. App. 2009). As long as the trial court’s ruling is
within the zone of reasonable disagreement, there is no abuse of discretion, and
we, as the reviewing court, may not disturb the trial court’s decision. Id. at 343–44.

       We consider four factors when analyzing a trial court’s ruling under Rule
403: (1) the probative value of the evidence; (2) the potential for the evidence 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. See State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

       Probative Value. When analyzing the probative value of evidence under
Rule 403, we must consider more than simply whether the evidence is relevant. See
Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Probative
value” refers to the inherent probative force of the evidence—that is, how strongly
it serves to make more or less probable the existence of a fact of consequence to
the litigation. Id.

       Here, the extraneous-offense evidence was offered to rebut the defense’s
theory of fabrication, and the evidence achieved that purpose by demonstrating that
appellant had a modus operandi. The evidence showed that appellant would first
take on the persona of a law enforcement officer; then he would target members of
the Hispanic community, likely because they would not report a crime to police,
depending on their immigration statuses; then he would lure or force his victims
into the backseat of a specific truck that was driven by another man; and then he
would demand money or personal items.

       “Evidence of a defendant’s particular modus operandi is a recognized
exception to the general rule precluding extraneous offense evidence, if the modus
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operandi evidence tends to prove a material fact at issue, other than propensity.”
Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992). The material fact at
issue in this case was whether the complainant had fabricated his story. Appellant
suggested that the complainant had lied for one of several reasons—whether to
obtain the “upper hand” in a business transaction, or to qualify for a visa, or to
dispose of property that he believed was stolen. The extraneous-offense evidence
tended to make these fabrication theories less probable. See Bass v. State, 270
S.W.3d 557, 563 (Tex. Crim. App. 2008) (in a prosecution for indecency with a
child, extraneous-offense evidence that the defendant had molested two other girls
was admissible because it made less probable the defense’s theory that the
complainant’s story was a “pure fabrication”). By showing that unrelated persons
were exploited under circumstances that were both similar and unlikely to be
repeated so many times, the evidence supported a finding that the complainant was
actually telling the truth. See De La Paz, 279 S.W.3d at 347 (“Under the ‘doctrine
of chances,’ evidence of such a highly unlikely event being repeated three different
times would allow jurors to conclude that it is objectively unlikely that appellant
was correct . . . .”); see also Robbins v. State, 88 S.W.3d 256, 268 n.10 (Tex. Crim.
App. 2002) (citing other authorities for the position that the “logical improbability”
theory leads to purely objective inferences, having nothing to do with the
subjective assessment of the defendant’s character).

      Potential for Irrational Impression. We first note that there was evidence
that appellant used a firearm in the charged offense, but not in the extraneous
offenses. To that extent, the extraneous offenses were no more heinous than the
charged offense, meaning that there was a reduced risk that the evidence would
affect the jury in an emotional way. See Taylor v. State, 920 S.W.2d 319, 323 (Tex.
Crim. App. 1996).


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      But the extraneous offenses were factually similar to the charged offense,
and whenever the offenses are similar, there is always a potential that the jury may
be unfairly prejudiced by the defendant’s character conformity. See Lane v. State,
933 S.W.2d 504, 520 (Tex. Crim. App. 1996). The trial court can minimize the
impermissible inference of character conformity with a limiting instruction. Id.
And in this case, the trial court gave an oral instruction before the evidence was
presented. That instruction was also repeated in the court’s guilt-innocence charge.

      Appellant argues that the trial court’s limiting instructions were ineffective
because they said that the jury could only consider the evidence “in determining
the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” Appellant asserts that none of these purposes was pertinent
in this case, and he criticizes the trial court for not mentioning a more specific
purpose, such as a rebuttal through the doctrine of chances.

      We agree that a specific limiting instruction would have been more
appropriate. Cf. Daggett v. State, 187 S.W.3d 444, 454 (Tex. Crim. App. 2005)
(“Because Hailey’s testimony was admissible only to rebut appellant’s blanket
statement of good conduct with minors, the trial court should have given the jury
an instruction that it could use that testimony only in assessing appellant’s
credibility, not as any proof that he committed the charged offense or as any proof
of some ‘plan’ to have a sexual relationship with Brittany.” (emphasis in original)).
However, appellant did not request a more specific limiting instruction, and the
instructions that were given told the jury that it could only consider the extraneous-
offense evidence for the purposes mentioned—and “no other purpose.” The
implication from the “no other purpose” provision is that the jury did not, and
could not, consider the extraneous-offense evidence for propensity purposes or as



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substantive evidence of appellant’s guilt. See Blackwell v. State, 193 S.W.3d 1, 16
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      Time. The rebuttal portion of the trial began on the second and final day of
the guilt-innocence phase. The prosecution called a total of four witnesses: two
police officers, who briefly discussed how they worked on cases involving
impersonation offenses; and A.M. and A.H., who testified about their encounters
with appellant. According to the trial court’s docket sheet, the rebuttal lasted for
less than two and one-half hours, and for thirty of those minutes, the jury was on a
break. This time spent on the extraneous offenses does not appear to have been so
long as to have seriously distracted the jury from the consideration of the charged
offense. Id. at 18 (holding that time factor was neutral where testimony concerning
the extraneous offenses was not unduly lengthy).

      The Proponent’s Need. For this final factor, we consider whether the
proponent had other probative evidence available to establish the fact of
consequence, and whether that fact related to an issue in dispute. See De La Paz,
279 S.W.3d at 349.

      As we have already explained, the defense’s theory was that the complainant
was lying about his story, and the fact in dispute was whether a robbery was
actually committed. As possible motives for the complainant’s suspected lies, the
defense suggested that the complainant wanted the “upper hand” in a business
transaction, or to obtain a visa, or to dispose of property that he believed was
stolen. To lend support to this final suspected motive, the defense elicited
testimony from appellant’s mother, who said that appellant came into possession of
a large amount of hoses around the same time as the charged offense.

      Because the defense contested the very commission of the charged offense,
and there was some affirmative evidence that might suggest a fabrication theory,
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the prosecution had a corresponding need to rebut that theory with the introduction
of extraneous-offense evidence. See Beam v. State, 447 S.W.3d 401, 405 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (holding that the proponent’s need for
evidence is strong when the evidence supports an element of a hotly contested
issue). That need was also heightened because the prosecution did not produce any
evidence during its case-in-chief that corroborated the complainant’s version of the
events, other than some testimony that police gear was found in the truck when
appellant was arrested. Although this evidence supported the notion that appellant
had impersonated an officer or federal agent, consistent with the complainant’s
story, the defense made a point of noting that appellant was not the only person in
the truck, implying that appellant was not in exclusive possession of the items
found within it.

      Balance. Once the trial court finds that evidence of an extraneous offense is
relevant, the probative value of that evidence is presumed to be weightier than its
prejudicial effect unless the trial court determines otherwise. See Montgomery v.
State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh’g). Based on the
factors discussed above, we cannot say that the trial court clearly abused its
discretion by finding that the probative value of the evidence actually outweighed
the danger of unfair prejudice. The probative value of the evidence was strong
because it tended to rebut a defensive theory that the complainant was lying. This
theory went to the heart of the charged offense, and the State had a need to address
it. The trial court was given no reason to believe that the evidence would require
much time to develop—and in the end, not much time was required. Although the
evidence was factually similar to the charged offense, which presented a danger
that the jury may reach a verdict on the basis of character conformity, the trial
court attempted to mitigate this danger with a limiting instruction. We conclude


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that the trial court’s decision to admit the evidence fell within the zone of
reasonable disagreement.

                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



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




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