                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00145-CR


WILLIE CHARLES PRICE, JR.                                              APPELLANT
A/K/A WILLIE C. PRICE, JR.

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                      ----------

                                    OPINION
                                      ----------

      A jury convicted appellant Willie Charles Price, Jr. a/k/a Willie C. Price, Jr.

of aggravated robbery.1 At appellant’s trial, victims of three similar robberies

identified him as the man who had robbed them.          In a sole point, appellant

contends that the trial court erred by allowing evidence about these extraneous

offenses. We affirm.


      1
      See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
                               Background Facts

      One early morning in the summer of 2009, a man entered a Fort Worth

convenience store carrying a crowbar and wearing black clothing and a towel

over his head. While holding the crowbar in an upright position, the man ordered

the store’s clerk, Ray Kilgore, to give him money from a cash register. Kilgore

gave the man the money, and the man ran away. Kilgore identified appellant as

the robber through a photo lineup.

      A grand jury indicted appellant with aggravated robbery. The parties filed

various pretrial documents (including the State’s notice of its intent to introduce

evidence of other crimes, wrongs, or acts that appellant had committed), and

appellant pled not guilty. At trial, Kilgore identified appellant as the man who had

committed the robbery, and Kilgore said that he had also seen appellant in the

store earlier that evening. A manager at the store at the time of the robbery,

Charlene Bradshaw, viewed a recording of the robbery and also identified

appellant at trial as a man she had seen in the store earlier that evening.

      In addition to presenting testimony from Kilgore and Bradshaw, the State

called three witnesses who identified appellant as the perpetrator of separate but

similar offenses in each of the convenience stores that they worked in. Defense

counsel objected to this testimony under rules of evidence 403 and 404(b). 2

The trial court overruled the objection and admitted testimony regarding the


      2
       See Tex. R. Evid. 403, 404(b).

                                         2
extraneous offenses. The court gave the jury a limiting instruction to only

consider the extraneous offenses for identity purposes.        The jury returned a

conviction for aggravated robbery and, after hearing evidence concerning

appellant’s punishment, assessed twenty years’ confinement.          Appellant filed

notice of this appeal.

                   The Admission of the Extraneous Offenses

      In his sole point, appellant contends that the trial court abused its

discretion by admitting evidence of the extraneous offenses. We review the trial

court’s admission of evidence under an abuse of discretion standard. Allen v.

State, 202 S.W.3d 364, 367 (Tex. App.—Fort Worth 2006, pet. ref’d) (op. on

reh’g); see Montgomery v. State, 810 S.W.2d 372, 390–91 (Tex. Crim. App.

1991) (op. on reh’g). Under this standard, the trial court’s ruling will be upheld as

long as it falls within the ―zone of reasonable disagreement.‖ Alami v. State, 333

S.W.3d 881, 889 (Tex. App.—Fort Worth 2011, no pet.); Karnes v. State, 127

S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref’d), cert. denied, 129 S.

Ct. 2391 (2009).

      ―Evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as . . . identity . . . .‖ Tex. R.

Evid. 404(b); see Montgomery, 810 S.W.2d at 387–88; see also Segundo v.

State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that, generally, the

defendant is to be tried only for the offense charged, not for any other crimes),

                                         3
cert. denied, 130 S. Ct. 53 (2009). The State, as the proponent of extraneous

offense evidence, bears the burden of showing admissibility. Russell v. State,

113 S.W.3d 530, 535 (Tex. App.—Fort Worth 2003, pet. ref’d).              ―Whether

extraneous offense evidence has relevance apart from character conformity, as

required by Rule 404(b), is a question for the trial court.‖ Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003).

      For an extraneous offense to be admissible to show identity, identity must

be raised as an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex.

Crim. App. 1996) (citing Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App.

1985), cert. denied, 474 U.S. 1113 (1986)). A defendant may raise the issue of

identity during cross-examination of the State’s witnesses.       Id.; see Page v.

State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (―Identity can be raised by

defense cross-examination, such as when the identifying witness is impeached

on a material detail of the identification.‖); see also Burton v. State, 230 S.W.3d

846, 849–50 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that the

defendant raised identity as an issue in the case by questioning the certainty of

the victim’s identification). In Page, the court of criminal appeals determined that

the defendant raised the issue of identity because questioning of the State’s

witness called into doubt either ―her capacity to observe (i.e., she was mistaken)




                                         4
or her truthfulness (i.e., she was lying), or both, [and] the questions implied that

the identification of appellant was not trustworthy.‖ 137 S.W.3d at 78.3

       Appellant’s trial counsel asked questions during his cross-examination of

the State’s witnesses in a manner that obviously emphasized the issue of

identity.4 Counsel repeatedly asked Kilgore about whether he could clearly see

appellant’s face at the time of the robbery, and counsel also asked Kilgore

several other questions that sought to impugn Kilgore’s identification of appellant:

      3
         Even when identity is raised as an issue, extraneous offenses are usually
admissible only if the offenses are so similar to the charged offense as to
illustrate the defendant’s distinctive and idiosyncratic manner of committing
criminal acts. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006);
Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992); Karnes, 127
S.W.3d at 190; see also Segundo, 270 S.W.3d at 88 (explaining that the
common characteristics to show a link between the extraneous and charged
offenses may be proximity in time and place, mode of commission of the crimes,
the person’s dress, or any other elements that mark both crimes as having been
committed by the same person). The dissenting opinion, however, fails to
recognize that in appellant’s concise brief, he does not contend that the
extraneous offenses that the trial court admitted are not sufficiently similar to the
offense in this case to show a connection between all of the crimes. We note
that the three witnesses of the extraneous offenses testified that all of the
offenses were committed by a black man and occurred in convenience stores
during early morning hours of dates near the date of the offense at issue here.
All were committed by a man with a towel over his head who was carrying a
weapon (in two of the three extraneous offenses, the weapon was a crow bar or
steel pipe). All three witnesses identified appellant at trial as the perpetrator of
the offenses.
      4
       As most cross-examinations would, appellant’s cross-examinations of the
State’s witnesses related to factual matters that were similar to those elicited
during direct examination. Appellant’s counsel, however, did not ―only repeat[]
the questions raised by the State.‖ Dissenting Op. at 2. The manner of the
State’s questioning was focused on ultimately producing a positive identification
of appellant as the robber. Appellant’s counsel’s questioning, as described
below, was focused on creating doubt about that identification.

                                         5
      Q Okay. And I believe you testified that you were briefly face
to face with the man, and I think that initially the man comes in and
walks directly up to you. Is that when you were face to face with
him?

      A Yeah.

      Q All right. And then you said that you didn’t want to really
take a look at him because you were afraid that it might turn out
badly for you; is that correct?

      A Yes, when he was up close.

      Q Okay. So you were -- really you were kind of trying not to
look at him, would that be a fair assessment?

      A Yeah, when he was up close.

      Q Okay. And then after that you were trying not to look at
him, would that be accurate?

      A Yes.

       Q All right. So pretty much the time that you got to view him
right up close was that period of time when he walks up right to you
where you’re down there working on the computer, right?

      A Yes.

      Q Okay. And after that you were really kind of trying not to
look at him; is that right?

      A   Yes.

      ....

       Q Okay. And, in fact, on this video though that we just saw
that lasted several minutes there were several people within that
brief period of time that had on black clothing other than the robber;
is that correct?

      A Yes.

      Q Okay. And I believe that also on that video we saw several
African American men that had a bald head; is that right?

                                  6
             A Yeah.

            Q All right. And so essentially there were lots of people that
      came in there wearing black clothing with shaved heads, would that
      be accurate to say?

             A Not really, it wouldn't.

             ....

            Q Okay. Well, my question is, was what stated on the 911
      tape was that I couldn’t see his face? You heard that?

             A Yeah.[5] [Emphasis added.]

      Counsel also repeatedly asked Bradshaw about how certain her

identification was because while she saw appellant’s face when he entered the

store to ask for water earlier on the evening in question, she only saw the video

of appellant’s second entry in the store (when he committed the aggravated

robbery), and the video did not show appellant’s full face.         Counsel also

questioned whether Bradshaw’s identification was based on appellant’s facial

features or simply his clothing. Furthermore, counsel asked the detective who

prepared the photo lineup that Bradshaw and Kilgore viewed whether the lineup

was unduly suggestive and whether Kilgore had initially struggled to identify

appellant in the lineup.

      Thus, as in Page, the question of whether defense counsel’s cross-

examinations of these witnesses raised the issue of identity ―may best be


      5
      In contrast to these questions, the State asked Kilgore whether he had
been able to get a ―clear‖ and ―good‖ look at appellant, and Kilgore testified that
he had.

                                          7
answered with another question: If it was not about identity, what was it about?‖

137 S.W.3d at 79. Finally, we note that appellant’s counsel also made a direct

attack on the identification of appellant in his closing statements. He addressed

identification as his first argument and said, ―Now, we all know people get

misidentified all the time.‖ Later, counsel told the jury, ―I would trust that you

weigh the evidence carefully, and that when you come back, you will have

reasonable doubt as to the identity of the person on this video and the testimony

of those witnesses and find Mr. Price not guilty.‖

      For these reasons, we conclude that the trial court did not abuse its

discretion by deciding that the extraneous offenses were admissible to show

appellant’s identity under rule 404(b).       See Tex. R. Evid. 404(b); Allen, 202

S.W.3d at 367.

      Appellant also asserts (without providing any significant analysis) that the

trial court should have excluded evidence regarding the extraneous offenses

under rule 403.6 See Tex. R. Evid. 403 (―Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or needless presentation of cumulative evidence.‖). The admission

      6
       Appellant objected to the evidence under rule 403 at trial. The extent of
appellant’s argument on appeal regarding rule 403 states, ―Under Texas Rule[] of
Evidence 403 . . . , the admission of not one, but three extraneous robberies was
error and effectively, despite the trial Court’s [limiting] instruction, presented
character conformity evidence and substantially prejudiced and harmed
[a]ppellant.‖

                                          8
of extraneous offenses must not be substantially more prejudicial than probative.

See id.; Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).

The probative value of extraneous offenses is low when the offenses support

only noncompelling, undisputed evidence that has already been submitted.

Montgomery, 810 S.W.2d at 390.

      As we explained in Alami,

      Once appellant makes a rule 403 objection, the trial court must
      weigh the probative value of the evidence to determine if it is
      substantially outweighed by its potential for unfair prejudice. A rule
      403 balancing test includes the following factors: (1) the inherent
      probative force of the proffered item of evidence along with (2) the
      proponent’s need for that evidence against (3) any tendency of the
      evidence to suggest decision on an improper basis, (4) any
      tendency of the evidence to confuse or distract the jury from the
      main issues, (5) any tendency of the evidence to be given undue
      weight by a jury that has not been equipped to evaluate the
      probative force of the evidence, and (6) the likelihood that
      presentation of the evidence will consume an inordinate amount of
      time or merely repeat evidence already admitted. The rules of
      evidence favor the admission of relevant evidence and carry a
      presumption that relevant evidence is more probative than
      prejudicial.

333 S.W.3d at 889 (citations omitted); see Sanders v. State, 255 S.W.3d 754,

760 (Tex. App.—Fort Worth 2008, pet. ref’d) (―Unfair prejudice arises from

evidence that has an undue tendency to suggest that a decision be made on an

improper basis, commonly an emotional one.‖).

      At trial, the State presented a surveillance tape of the robbery at issue in

this case, but the towel over appellant’s head hid his face from view. Appellant

challenged Kilgore’s and Bradshaw’s identifications of him as the robber during


                                        9
their testimony and, eventually, in his closing argument. Thus, the testimony of

other victims of the extraneous crimes, who identified appellant as the man who

had also robbed them in a quite similar way to how he robbed Kilgore, had

substantial probative value.     The evidence about the extraneous offenses

focused, rather than distracted, the jury on the main issue in the case: whether

appellant was the person who committed the crime against Kilgore. See Alami,

333 S.W.3d at 889. Also, the limiting instruction that the trial court gave with the

testimony helped to ensure that the jury would not be confused by the evidence

or use it for an improper purpose. See Burton, 230 S.W.3d at 851. We hold that

the trial court did not abuse its discretion by following the presumption to admit

relevant evidence and by determining that the evidence of the extraneous

offenses was not substantially more unfairly prejudicial than probative. See Tex.

R. Evid. 403; Allen, 202 S.W.3d at 367.

      For all of these reasons, we overrule appellant’s only point.




                                          10
                                   Conclusion

      Having overruled appellant’s point, we affirm the trial court’s judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: August 25, 2011




                                        11
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00145-CR


WILLIE CHARLES PRICE, JR.                                          APPELLANT
A/K/A WILLIE C. PRICE, JR.

                                       V.

THE STATE OF TEXAS                                                      STATE


                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION
                                    ----------

      Respectfully, I write separately because I do not understand the majority

opinion to have addressed the issues raised by Appellant.

      Appellant argues that the trial court erred by admitting evidence of

extraneous offenses because Appellant did not place identity in issue beyond the

degree to which the State placed identity in issue.    The majority addresses

Appellant’s point by reiterating the questions Appellant asked regarding
witnesses’ ability to view the actor and questions regarding the photo lineup.

Appellant, however, does not argue that he did not mention those matters.

Appellant argues that he did not go beyond the questions raised by the State on

direct examination. That is, Appellant argues that the State cannot raise the

issue of identity in order to make extraneous offenses admissible to prove

identity, and a defendant who only repeats the questions raised by the State

does not open the door to make admissible evidence of extraneous offenses.

      The majority does not explain the extent to which the State raised the

issue of identity, nor does the majority explain how Appellant went beyond the

State’s questioning the bases of witnesses’ identification in order to open the

door to extraneous offenses. The majority also does not explain, except for a

mention in a footnote, how the extraneous offense evidence resolved any

questions of identity.

      As the Texas Court of Criminal Appeals has discussed,

             The general rule is that the defendant is to be tried only for the
      offense charged, not for any other crimes or for being a criminal
      generally. However, evidence of extraneous acts of misconduct may
      be admissible if (1) the uncharged act is relevant to a material issue
      in the case, and (2) the probative value of that evidence is not
      significantly outweighed by its prejudicial effect. Because the
      propensity to commit crimes is not a material fact in a criminal case,
      Rule 404(b) explicitly prohibits the admission of uncharged acts to
      prove conduct in conformity with a bad character.

            One of the main rationales for admitting extraneous-offense
      evidence is to prove the identity of the offender. Here, the theory of
      relevancy is usually that of modus operandi in which the pattern and
      characteristics of the charged crime and the uncharged misconduct
      are so distinctively similar that they constitute a ―signature.‖ Usually,

                                         2
      it is the accretion of small, sometimes individually insignificant,
      details that marks each crime as the handiwork or modus operandi
      of a single individual. No rigid rules dictate what constitutes
      sufficient similarities; rather, the common characteristics may be
      proximity in time and place, mode of commission of the crimes, the
      person’s dress, or any other elements which mark both crimes as
      having been committed by the same person. But if the similarities
      are ―generic,‖ i.e., typical to this type of crime, they will not constitute
      a ―signature‖ crime. Sometimes, however, the ―signature‖ is one
      unique characteristic. For example, suppose that three bank
      robberies are committed over a four-year period in different cities in
      which the robber used an antique silver crossbow. This scenario is
      so unusual that it is highly likely that each robbery was committed by
      the same person using the same antique silver crossbow. This is
      ―the mark of Zorro‖ mode of proving identity; it is a remarkably
      unusual fact, in which a single detail suffices to establish identity.1

The burden of showing admissibility rests upon the proponent of the evidence of

extraneous offenses.2 As the Texas Court of Criminal Appeals has explained,

      In Jones, we concluded that, even though the state had the burden
      of proving guilty intent and identity, the state could not permissibly
      use extraneous offenses as circumstantial evidence on these issues
      where the state had uncontroverted direct evidence on the issue of
      identity and guilty intent could be inferred from the act itself. In that
      type of situation, the prejudicial effect of the evidence far outweighs
      its relevance to any issue in the case; and the evidence of the
      extraneous offense serves only to establish the accused’s bad
      character.3

Here, Appellant argues that the State delved into the witnesses’ ability to observe

the actor and the degree to which their testimony regarding identification had


      1
       Segundo v. State, 270 S.W.3d 79, 87–88 (Tex. Crim. App. 2008)
(footnotes omitted), cert. denied, 130 S. Ct. 53 (2009).
      2
       Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op.
on reh’g).
      3
          Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972).
                                           3
been influenced. This is what a good lawyer does. If the defense did nothing but

repeat what the State had already proved, how did Appellant challenge the

witnesses’ identification and thereby open the door for proof of extraneous

offenses? I do not understand how the majority opinion explains the answer to

this question. If Appellant did so challenge and undermine the validity of the

witnesses’ identification, how did the State as proponent of the evidence of the

extraneous offenses satisfy its burden to show admissibility?

      True, the majority mentions in a footnote that the offenses at trial and the

extraneous offenses were all committed by a black man. 4 They were committed

in convenience stores during early morning hours of ―dates near the date of the

offense at issue here.‖5        So far, it is difficult to perceive how the majority

construes this evidence as a signature motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.          The majority

mentions a towel on Appellant’s head6 and on the man’s head in the extraneous

offenses but does not provide any discussion.7 Additionally, Appellant carried a

crowbar.     The majority mentions in the footnote that the man or men in the




      4
       Majority op. at 5 n.3.
      5
       Id.
      6
       Id. at 2.
      7
       Id. at 5–6 n.3.

                                           4
extraneous offenses carried a weapon.8 In one offense, the perpetrator carried a

knife, in one, he carried a steel pipe, and in one, he carried a crowbar.

      ―Faced with an objection, the proponent of such evidence must satisfy the

trial court that the extraneous act has relevance apart from its tendency to prove

character conformity.‖9 Except for the aside in the footnote, I do not understand

how the majority opinion addresses whether the State satisfied this obligation.

      For these reasons, I cannot join the majority opinion.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE


PUBLISH

DELIVERED: August 25, 2011




      8
       Id.
      9
       Feldman v. State, 71 S.W.3d 738, 754 (Tex. Crim. App. 2002) (citing
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997), and McFarland
v. State, 845 S.W.2d 824, 837–38 (Tex. Crim. App. 1992), cert. denied, 508 U.S.
963 (1993), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex.
Crim. App. 1994)).

                                         5
