             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00023-CR
      ___________________________

 RONALD WAYNE WARREN, Appellant

                       V.

           THE STATE OF TEXAS


   On Appeal from the 396th District Court
          Tarrant County, Texas
        Trial Court No. 1526949D


 Before Sudderth, C.J.; Birdwell and Bassel, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      In two points, appellant Ronald Warren appeals his conviction for burglary of a

habitation. See Tex. Penal Code Ann. § 30.02(c)(2). Appellant contends that the trial

court abused its discretion by admitting evidence of an extraneous burglary in violation

of Texas Rules of Evidence 403 and 404(b). Because we conclude that the complained-

of evidence was admissible under rule 404(b) for purposes of resolving the issue of

identity and that the rule 403 factors weigh in favor of admission, we hold that the trial

court did not abuse its discretion. We therefore affirm.

                                  I.     Background

      While at work on December 11, 2017, Colm McHugh received an alert on his

phone that his security system had detected movement in his apartment. Not expecting

any visitors, he opened the security application on his phone to watch and record the

activity. He saw a man walking around his apartment taking property and putting it into

one of McHugh’s suitcases. Seeing this, McHugh triggered an alarm and then watched

the man take his PlayStation before leaving.

      McHugh called his apartment’s property manager, April Lopez, and told her that

someone had broken into his apartment. He then called 911 and left work, heading

toward the complex. Lopez went to the area on the property where McHugh’s

apartment was located and noticed a tall male walking with a suitcase toward a Dodge

SUV. Lopez parked her vehicle behind the SUV and confronted the man, asking him



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if he lived at the property. The man told Lopez he was visiting someone who lived there

and proceeded to put the suitcase in the SUV.

       Lopez then went up to McHugh’s apartment to verify whether it had been

broken into. She testified that it appeared the apartment door had been forced open.

Lopez returned to the parking lot, and the man she had spoken to was gone. But

because Lopez’s vehicle was parked behind the SUV, blocking it in, the SUV remained

in the same spot.

       When McHugh arrived at the apartment complex, he met with Lopez and a Fort

Worth police officer near the SUV. He identified the suitcase and the clothing and

electronics in it as his.

       Later that day, Fort Worth Police received a report from appellant’s wife Ashley

Warren, who claimed that her Dodge SUV had been stolen. Based on the stolen vehicle

report and the evidence gathered from the burglary of McHugh’s apartment, Fort

Worth Police conducted an investigation and identified the vehicle reported stolen by

Ms. Warren as the same SUV that was left at McHugh’s apartment complex.

       The police then located photos on social media of Ms. Warren and appellant.

The police compared the social media photos, a still image from McHugh’s security

footage, and a DPS photograph of appellant’s driver’s license, which convinced them

that the burglar of McHugh’s apartment was appellant. Based on appellant’s alleged role

in the burglary of McHugh’s apartment, police obtained a warrant and arrested

appellant in his driveway.

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      The police searched appellant’s car and found money, electronics, jewelry,

luggage, and a locked safe, some of which appellant claimed were his and his wife’s.

However, further investigation revealed many of the items were stolen in another

burglary. Officer Tom Gierling was able to locate the owner of the stolen property,

Stephen Ellis. Ellis confirmed that his apartment had been broken into. He then met

Officer Gierling at the police department and identified several of the items found in

the SUV as his and his roommate’s. Appellant was indicted in Dallas County in

connection with that burglary (the “Ellis burglary”), but that case was ultimately

dismissed pursuant to the State’s motion.

      Appellant was also indicted for his role in the burglary of McHugh’s apartment,

which led to this appeal. At trial, the State sought to admit evidence of the extraneous

Ellis burglary in order to establish appellant’s identity as the man who burglarized

McHugh’s apartment. Appellant objected, arguing that the Ellis burglary evidence was

impermissible character evidence under rule 404(b) and that the evidence would be far

more prejudicial than probative under rule 403. The trial court overruled the objection

but instructed the jury that it should consider the extraneous offense only for purposes

of determining motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.

      At the conclusion of evidence, the jury found appellant guilty of burglary of a

habitation. The trial court found a habitual-offender enhancement to be true and



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sentenced appellant to thirty-five years’ confinement. See id. § 12.42(d). This appeal

followed.

                              II.    Admission of Evidence

       In appellant’s first point, he contends that the trial court abused its discretion in

admitting evidence of the Ellis burglary because it was presented for the purpose of

showing appellant’s criminal character generally, in violation of rule 404(b).

       In reviewing a trial court’s determination of the admissibility of extraneous-

offense evidence, we recognize the trial court’s superior position to gauge the impact

of the evidence and, accordingly, we will reverse “rarely and only after a clear abuse of

discretion.” Lumsden v. State, 564 S.W.3d 858, 877 (Tex. App.—Fort Worth 2018, pet.

ref’d), cert. denied, 139 S. Ct. 2018 (2019). As long as the trial court’s ruling is within the

“zone of reasonable disagreement,” there is no abuse of discretion, and the trial court’s

ruling will be upheld. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009)

(quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)).

       Rule 404(b) prohibits the introduction of extraneous bad acts to show character

conformity but permits the introduction of such acts for other purposes, including

proving identity. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). For proof of

identity to be a valid purpose, it must be an issue in the case. Id.; Price v. State, 351 S.W.3d

148, 151 (Tex. App.—Fort Worth 2011, pet. ref’d). A defendant may place identity in

dispute by his opening statement, by his cross-examination, or by offering affirmative

evidence. Sharper v. State, 485 S.W.3d 612, 621 (Tex. App.—Texarkana 2016, pet. ref’d);

                                               5
see Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (opening statement);

Page, 137 S.W.3d at 78 (cross-examination).

       Appellant does not dispute that identity was a prevailing issue in the case. Indeed,

in his brief, he echoes the State in saying that identity was “the only contested issue in

this case.”

       Still, the issue of identity in isolation does not automatically render extraneous

offenses admissible. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). When

the extraneous offense is introduced to prove identity by comparing common

characteristics, it must be so similar to the charged offense that the offenses illustrate

the defendant’s distinctive and idiosyncratic manner of committing criminal acts. Id.

“Usually, it is the accretion of small, sometimes individually insignificant, details that

marks each crime as the handiwork or modus operandi of a single individual.” Segundo v.

State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008). 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. Id. But if the

similarities are “generic,” i.e., typical to this type of crime, they cannot be said to bear

the same “signature.” Id. Sometimes, however, the “signature” is one unique

characteristic. Id. 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



                                             6
crossbow. Id. This is the “mark of Zorro” mode of proving identity; it is a single,

remarkably unusual fact which suffices to establish identity. Id.

       Ransom v. State illustrates an instance when the threshold of similarity was met.

There, the court held offenses to be sufficiently similar when both offenses were

(1) robberies (2) committed at gunpoint (3) in Dallas (4) three days apart and when

(5) the defendant was aided by a confederate. 503 S.W.2d 810, 813 (Tex. Crim. App.

1974). Similarly, in Sharper, the court held that an extraneous offense was sufficiently

similar when both offenses were (1) robberies (2) committed at gunpoint (3) at night

(4) in nearby communities (5) three weeks apart and (6) the defendant was aided by

another. 485 S.W.3d at 622.

       Turning to the present case, the evidence revealed multiple similarities between

the two offenses. Both the charged and extraneous offenses were burglaries that

occurred in apartment complexes; more specifically, the burglaries both occurred in

top-floor apartments, which the investigating detective found to be “odd.” Both took

place in the same area of Dallas-Fort Worth during the daytime. In both, it appeared

that no one was at home at the time. Both occurred within one month. In both offenses,

the perpetrator forced open the front door and damaged the apartment’s door frame.

In both burglaries, the perpetrator stole not only high-value electronics, but also luggage

and video games, and the perpetrator apparently used containers found in the burgled

home to transport goods out of the home. In the McHugh burglary, the perpetrator

was seen wearing a light-colored, long-sleeved, collared shirt; sunglasses; gloves; and a

                                            7
light-colored baseball hat. When appellant was arrested following the Ellis burglary, he

was wearing a light-colored, long-sleeved, collared shirt; a pair of sunglasses were in his

front shirt pocket; he had a pair of gloves in his jeans pocket; and a light-colored

baseball hat was in his car. Perhaps most importantly, the perpetrator in the McHugh

burglary was captured on video wearing a highly distinctive pair of jeans with ribbing

and a pattern of bleach marks down the thighs; when appellant was arrested following

the Ellis burglary, he was wearing a seemingly identical pair of jeans. While the record

contains no evidence on the prevalence of such clothing, we feel assured in the belief

that jeans with bleach-splattered thigh-ribbing are not so common that appellant could

have been easily mistaken for another assailant. See Hill v. State, No. 01-16-00595-CR,

2017 WL 2290201, at *5 (Tex. App.—Houston [1st Dist.] May 25, 2017, pet. ref’d)

(mem. op., not designated for publication) (concluding that threshold similarity was

shown in part because the perpetrator of both robberies wore the “same unique items

of clothing,” including neon green gloves); Chaparro v. State, 505 S.W.3d 111, 118 (Tex.

App.—Amarillo 2016, no pet.) (relying in part on “distinctive Halloween masks” and a

“letter jacket” to conclude there was sufficient similarity between robberies).

       Rather, taking this unique trait alongside the many other parallels between the

charged and extraneous offenses, we conclude that there was sufficient similarity for




                                            8
the extraneous offense to be relevant to the issue of identity. 1 Because the extraneous

offense was sufficiently similar to the charged offense and relevant to the issue of

identity, the extraneous offense was admissible under rule 404(b). See Tex. R. Evid.

404(b)(2). We therefore overrule appellant’s first point.

       In appellant’s second point, he contends that the trial court erred in allowing the

State to present evidence of the extraneous offense because the prejudicial effect of the

evidence greatly outweighed any probative value, and it is therefore inadmissible under

rule 403.

       In analyzing a rule 403 objection, the trial court must engage in a balancing

process. Perez v. State, 562 S.W.3d 676, 689 (Tex. App.—Fort Worth 2018, pet. ref’d).

When undertaking this analysis, on one end of the scales the court must weigh (1) the

inherent probative force of the evidence along with (2) the State’s need for the evidence.

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). On the other end, the

court weighs (3) any tendency of the evidence to suggest a decision on an improper

basis, (4) any tendency of the evidence to confuse or distract the jury from the main


       1
         The trial court sua sponte instructed the jury that to consider the burglary, it had
to find beyond a reasonable doubt that appellant committed that offense. On appeal,
appellant contends that there was no evidence to show he committed the Ellis burglary.
However, appellant never objected that the evidence was insufficient to permit the jury
to conclude that he had committed the extraneous burglary. An argument of this sort
concerning the admission of extraneous-offense evidence is subject to preservation
requirements, and objections under rules 403 or 404 do not suffice to preserve such an
argument. Sanders v. State, 422 S.W.3d 809, 815–16 (Tex. App.—Fort Worth 2014, pet.
ref’d); see Watkins v. State, 946 S.W.2d 594, 600 (Tex. App.—Fort Worth 1997, pets.
ref’d). This argument is therefore forfeited. See Tex. R. App. P. 33.1(a)(1).

                                             9
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. Id. at 641–42. Rule 403 carries a presumption that

relevant evidence will generally be more probative than problematic. Wells v. State, 558

S.W.3d 661, 669 (Tex. App.—Fort Worth 2017, pet. ref’d). Thus, the balance is always

slanted toward admission of relevant evidence. De La Paz, 279 S.W.3d at 343 & n.17. It

was appellant’s burden to overcome this presumption by demonstrating that the

probative value of the evidence was substantially outweighed by the danger of unfair

prejudice or other factors. Wells, 558 S.W.3d at 669.

       In looking at the first factor—the inherent probative force of the evidence—we

must consider how compellingly evidence of the extraneous offense serves to make

more or less probable a fact of consequence. Lane v. State, 933 S.W.2d 504, 520 (Tex.

Crim. App. 1996). The strong similarities between the modes of commission of the

extraneous and charged offenses and their temporal and geographic proximity to one

another, coupled with the fact that appellant was in possession of proceeds of the

extraneous offense when arrested and lied about being the owner, offer persuasive

circumstantial evidence that appellant was the perpetrator in both offenses. See id.

(reasoning that “[g]iven the striking similarities” between the offenses, the extraneous

offense was “highly” probative on the issue of identity). Thus, the first factor weighs

heavily in favor of the State.

                                           10
       As to the second factor, the State had a relatively strong need for this evidence.

In evaluating this factor, we consider (1) whether the proponent has other available

evidence to establish the fact of consequence that the evidence is relevant to show,

(2) the strength of the other evidence, and (3) whether the fact of consequence is related

to an issue that is in dispute. Erazo v. State, 144 S.W.3d 487, 495–96 (Tex. Crim. App.

2004). Here, the State’s sole eyewitness to the charged offense was unable to identify

appellant in a photo lineup or in open court due to appellant’s failure to appear on the

first day of trial. The State’s only other evidence available to establish appellant’s identity

as the burglar was a single unclear photo from McHugh’s security footage and the

circumstance that his wife’s vehicle was found at the apartment complex. Clearly,

identity was a principal issue in this case. Taking all of this in to account, we are

persuaded that the State had a considerable need to admit the complained-of evidence

in order to establish the identity of the perpetrator. The second factor also weighs

heavily in favor of the State.

       As to the third factor, the evidence in question had limited potential to cause

unfair prejudice. Unfair prejudice may be created by the tendency of the evidence to

prove some adverse fact not properly in issue or to unfairly excite emotions against the

defendant. Montgomery, 810 S.W.2d at 378. In this case, both the extraneous and charged

offenses were the same crime, committed in a very similar manner. The extraneous

burglary was, therefore, “no more serious than the allegations forming the basis for the

indictment.” Caston v. State, 549 S.W.3d 601, 613 (Tex. App.—Houston [1st Dist.] 2017,

                                              11
no pet.) (quoting Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—Austin 2016, pet.

ref’d)). Admittedly, making the jury aware that appellant committed more than one

burglary may have sparked temptation to convict him on the basis of his criminal

character generally. See Morales v. State, 293 S.W.3d 901, 912 (Tex. App.—Texarkana

2009, pet. ref’d). However, the trial court instructed the jury to consider the extraneous-

offense evidence only for certain purposes, including identity. We must presume that

the jury understood and followed this instruction, as there has been no evidence

presented to suggest otherwise. See Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim.

App. 2012). This limiting instruction reduced the possibility that the extraneous offense

would sway the jury in an improper direction. See Fowler v. State, 553 S.W.3d 576, 585

(Tex. App.—Texarkana 2018, no pet.) (concluding that limiting instruction mitigated

the possible prejudice from extraneous burglary offense). Thus, this factor weighs only

slightly in favor of appellant.

       The remaining factors add no weight to the scales. As to the fourth and fifth

factors, we do not perceive any way in which the evidence would have confused or

distracted the jury, and the evidence was not of a scientific or technical character, such

that it might have been given undue weight by an untrained jury. See Gigliobianco, 210

S.W.3d at 641. Finally, as to the sixth factor, the trial court could have reasonably

concluded that the presentation of the evidence in question would not consume an

inordinate amount of time. See id. at 641–42. In fact, testimony concerning the Ellis

burglary comprised far less than one-fifth of the testimony in the State’s case in chief

                                            12
(21 record pages out of 170 total pages for the State’s case). We do not believe that this

amount of time was excessive. See Lane, 933 S.W.2d at 520 (determining that the

extraneous offense testimony was not excessive when it constituted less than one-fifth

of the State’s case in chief). These factors weigh neutrally.

         Two factors weigh in favor of admission, both of them heavily so. Only one

factor weighs slightly against admission. We therefore conclude that the trial court did

not exceed the “considerable freedom” it is afforded in exercising its discretion under

rule 403. See Montgomery, 810 S.W.2d at 378. We overrule appellant’s second point.

                                    III.   Conclusion

         Having overruled both of appellant’s points, we affirm the judgment of the trial

court.

                                                        /s/ Wade Birdwell

                                                        Wade Birdwell
                                                        Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 29, 2019




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